Summary: Mrs X complains on behalf of Mrs Y about the care provided to her at Greenacres Care Home and its refusal to let her return to the home from hospital. Mrs X says this impacted Mrs Y’s health and caused her distress and confusion. We find the Care Provider was not at fault in the care it provided or in its decision for Mrs Y not to return. However, it was at fault in the way it kept Mrs Y’s records and communicated with the family. It has agreed to apologise and take action to improve record keeping and communication.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of her mother in law, Mrs Y, that Minster Care Management Limited (the Care Provider):
• did not properly feed and hydrate Mrs Y resulting in her becoming dehydrated and being admitted to hospital with an acute kidney injury.
• refused, without good reason, to allow her to return to the Greenacres Care Home from hospital.
2. In addition to an impact on her health, Mrs Y experienced an unnecessary hospital stay and change of care home which was distressing and confusing for her. Ms X would like to know how and why this happened and why the Care Provider would not allow her to return. Ms Y did not receive the care she paid for, and she would like to ensure this does not happen to anyone else.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
5. If we are satisfied with a care provider’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

The Care Quality Commission

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
10. CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
11. Regulation 9 is about personalised care. The CQC’s guidance on the regulations says:
• “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be”.
• “Staff providing care must be kept up to date with any changes to a person's needs and preferences.”.
12. Regulation 17 is about good governance. 17(2)(c) says care providers should “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”. The Guidance says that “records relating to the care and treatment of each person using the service must be kept and be fit for purpose. Fit for purpose means they must…be complete, legible, indelible, accurate and up to date…”
13. Regulation 20 is about a duty of candour. 20(1) says “Registered persons must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity”. The CQC’s guidance on this regulation says:
• Providers must promote a culture that encourages candour, openness and honesty at all levels. This should be an integral part of a culture of safety that supports organisational and personal learning. There should also be a commitment to being open and transparent at board level or its equivalent, such as a governing body.
• Providers should have policies and procedures in place to support a culture of openness and transparency, and ensure that all staff follow them.
• Providers should make all reasonable efforts to ensure that staff operating at all levels within the organisation operate within a culture of openness and transparency, understand their individual responsibilities in relation to the duty of candour, and are supported to be open and honest with patients and apologise when things go wrong.

What happened

14. Mrs Y had dementia. She moved to Greenacres Care Home, run by the Care Provider, from another care home around March 2020. Ms X says there was no visiting during much of the time she was there because of COVID-19 restrictions, so issues were not apparent until later. Throughout Mrs Y’s time at Greenacres Care Home, Ms X says the staff reassured her that all was fine.
15. On admission, Mrs Y’s weight was recorded as 86.60kg. She initially lost weight and in July 2020, the Care Provider’s records note that she was now 81.10kg. It noted she had gained weight over the past two months and was eating most of her meals and two fortified drinks daily. In August, the records note her weight now 81.30kg “will normally eat any meal offered”. It said on occasions staff would need to cut her food up and prompt her to eat. In September, the practice nurse called to discuss Mrs Y’s recent blood tests which showed blood sugars a little higher than usual and raised cholesterol. They recommended a low fat diet if possible and to cut down on sweet things. In October, Mrs Y’s weight was 77.40kg and staff noted they were offering low fat meals and desserts. In January 2021, her weight was 75.4kg. It noted that she had been weighed on different scales which may account for the loss, her weight was above average and she was continuing to eat and drink well. Mrs Y had a slip to the floor and the Care Provider informed her son, Mr X.
16. At the end of March 2021, the Care Provider recorded Mrs Y’s weight as 74.60kg.
17. In early April, the Care Provider’s records note a lump had appeared in the right side of Mrs Y’s mouth which was out of character and possibly a dental abscess. The Care Provider contacted the GP who prescribed antibiotics. They advised if Mrs Y remained non compliant over the next 24 hours, she would need to go to A&E for intravenous antibiotics. Two days later, another resident alerted staff to Mrs Y who was on the floor. Staff checked and she had no apparent injuries but they noticed silver which looked like a small coin on the back of her tongue. They removed the object which was a small denture. Staff did not replace it as it was sharp. They gave her a glass of water, which she drank. They noted later that she had continued to drink and had eaten a yogurt but appeared to be in some discomfort. The removal of the denture appeared to have helped. Following the incident with the denture, Mrs Y’s records over the next week or so note that she had “eaten well at breakfast”, “eaten and drank well”, “enjoyed breakfast”. I found no reference to Mrs Y’s dentures in the Care Providers records until this incident. The records from the previous home noted on 20 February 2019, that she had her own teeth.
18. The GP visited regarding blood test results that had showed raised bilirubin levels. This meant Mrs Y would need a liver ultrasound and further blood tests. However, she was not showing any signs of jaundice or pain. A few days later, Mrs Y had a vacant episode and was lowered to the floor safely by staff. It noted her weight was 67.70kg, which was a loss of 6.9kg. It noted she needed a lot of encouragement from staff to eat and sometimes needed staff to feed her. They put Mrs Y on food and fluid charts and notified the GP and advised her son, Mr Z that she had lost a considerable amount of weight in the last two weeks. The next day, the Care Provider recorded Mrs Y’s weight as 64.50. Staff checked her frequently as she “seemed a little off side”. The next day, the Care Provider’s notes say Mrs Y hadn’t passed urine today or during the evening shift yesterday so would alert the GP when he visited later that day. The GP stopped some of Mrs Y’s medication and took a urine sample. He asked for an urgent blood test. When Ms X telephoned for an update, the Care Provider advised that samples had been taken and Mrs Y had eaten porridge, and drunk cartons of orange juice. Night staff noted that they had checked Mrs Y hourly throughout the night, her observations were all normal and staff tried to push fluids but she would only take sips. She passed a small amount of urine. Later that morning, the GP rang to check on Mrs Y as she was still not eating or drinking and appeared dehydrated. He advised the Care Provider to call 999 due to the dehydration. Mrs Y was admitted to hospital with acute kidney failure secondary to dehydration. That night, a doctor rang to advise that Mrs Y’s blood tests showed she was “in kidney failure”. The Care Provider advised that Mrs Y had gone to hospital earlier and was still there. The length of time from the GP visit about raised bilirubin levels, to Mrs Y’s hospital admission, was eight days.
19. The day after admission, having given Mrs Y intravenous fluids, the hospital began to arrange to discharge Mrs Y back to the care home as she was fit for discharge. Hospital records note that Mrs Y did not initially comply with the physiotherapist trying to assess her. The physiotherapist telephoned the Care Provider to find out about Mrs Y’s baseline and it advised she was normally independent with a wheeled frame. The physiotherapist revisited Mrs Y who was able to sit, stand, and walk about 20m with a wheeled frame with help from one person. Mrs Y did not eat when given a bowl of porridge but ate it all when helped. The hospital telephoned the Care Provider but it had concerns about the support she needed with eating and drinking. It asked the hospital to arrange a speech and language therapist (SALT) assessment because of the significant weight loss Mrs Y had experienced over 18 days.
20. The SALT completed an assessment the next day and noted that Mrs Y was struggling to swallow. They recommended a minced and moist diet and mildly thick fluids to help with this and for support to check that each mouthful was swallowed before the next. The report said it was likely Mrs Y’s food and fluid intake would decline and it was likely her needs would not be met without causing too much distress. Mrs Y was more likely to eat and drink better in her usual environment. The Care Provider asked to go to the hospital to assess Mrs Y in person. It says the hospital refused although they had assessed someone there the previous week.
21. The hospital confirmed to the Care Provider that Mrs Y’s functional status hadn’t changed since admission. It also confirmed that progression of dementia was the most likely cause of reduced food and fluid intake, and the acute kidney injury. It said although she had poor prognostic factors, nothing imminent was expected and her health was expected to worsen over a long time. The Care Provider says it asked again to assess Mrs Y in person but was refused. It said it couldn’t meet her needs if she was worsening. Mr X told the hospital that he wanted Mrs Y to stay at Greenacres for as long as possible.
22. With discharge imminent, the Care Provider said there was no manager to accept Mrs Y back. Mrs Y had to stay in hospital over the weekend. On Monday, the Care Provider refused to allow Mrs Y to return, saying she needed nursing care. The hospital alerted the local council’s adult social care department (ASC) to find another home for Mrs Y. A week later, ASC advised Ms X that the Care Provider could not take Mrs Y back as they were short staffed and did not have time to help her eat and drink. Mrs Y remained in an acute hospital bed for two weeks waiting for a new home.
23. At the end of April, Ms X complained in writing to the Care Provider.
24. The Care Provider responded around one week later, but Mrs X said it did not answer her questions. In particular, she wanted to know why Mrs Y became so dehydrated and whether it had concerns about being able to meet Mrs Y’s needs before she went to hospital. It said it was “extremely concerned” about Mrs Y’s ability to comply with care and treatment. She had also lost the ability to recognise whether she was hungry or thirsty which put her at risk. It said “due to the decline in her mental health” the Care Provider felt she needed more support than they could offer in a residential dementia setting. It acknowledged that this was a sensitive matter and should have been discussed with family and dealt with more professionally. It said it had spoken to the home manager who agreed with this and apologised.
25. While some of the records were adequate, I found care plans were not properly updated with all or most dated April 2020. Although they were mostly reviewed at regular monthly intervals, and when needed, the information in the reviews was not used to update the care plans. This would mean that, to understand what the care plan should be, all the reviews would need to be read in addition to the care plan. For example, the nutrition care plan was dated the end of April 2020 and said: “We are still getting to know [Mrs Y] so this life plan may change to reflect her needs and support required.”. Since April 2020, Mrs Y had been advised to have a low fat diet, reduce sugar intake and needed staff to encourage and sometimes feed her. This was only evident from reading through the reviews. I also saw no food or fluid charts although these were only identified as necessary three days before her hospital admission.
26. Additionally, following the incident with the dentures in April 2021, a care plan review for personal care dated 18 April notes that oral hygiene was to be carried out daily. Also, a care plan review for communication dated 18 April states “[Mrs Y] wears dentures. Oral hygiene is carried out and dentures to be removed at night.”. I did not see a care plan that covered dental hygiene so this means staff would need to read both these sets of reviews to know that Mrs Y needed support with oral hygiene. Records also show four falls and only three occasions where staff contacted family though there were also other events which should have been communicated. There are other records of contacting family but not recorded on the “relatives contact form”. Mrs X says the first they knew of the dentures incident was from the discharge team at the hospital; there is no record the Care Provider told family about this. This was also the first they knew about the Care Provider’s decision not to accept Mrs Y back to the home as the Care Provider has already acknowledged.
27. I should note that Mrs Y was admitted to Greenacres around the beginning of the national lockdown in response to COVID-19. At the time, and for some time since, care providers were under considerable pressure. This may have affected this Care Provider’s performance. However, understandable though this might be, this does not remove, or reduce, the obligation to provide safe care.
28. Mrs X advised that Mrs Y moved to another home where she settled in well and improved significantly.

Did the Care Provider’s actions cause injustice?

29. It is clear from the records which demonstrate regular and appropriate consultation with medical professionals about Mrs Y, that her decline was swift. Although she had lost weight, this seemingly tied in with the introduction of a low fat diet and reduced sugar intake. However, without food and fluid charts, which were not triggered by this weight loss, we cannot be clear about this. Even when Mrs Y had almost stopped eating and drinking, and food and fluid charts were triggered, these were not completed. This was at a critical time for Mrs Y, and they should have been completed even if she ate or drank nothing. Along with the other comments I have made previously on the record keeping, I consider this a potential breach of regulations 9 and 17 (see paragraphs 10 and 11 above).
30. It is also clear that the Care Provider’s communication with the family was not adequate. I consider this is likely to be the reason why they were concerned about the care it had provided to Mrs Y. Had they been kept informed about the incident with the dentures and been consulted about the decision not to allow Mrs Y to return, this may have reduced their concerns about the care provided. I have concluded this is potentially a breach of regulation 20 (see paragraph 12 above). In view of these potential breaches, I will send a copy of my final decision to CQC.
31. These shortfalls in record keeping and communication, caused Mrs X and Mr X injustice in undue and significant uncertainty and stress.
32. In respect of the Care Provider’s decision not to allow Mrs Y to return, I have concluded, on the balance of probability, giving notice itself, did not cause significant injustice to either Mrs Y, Mr X, or Mrs X, as there is evidence of a recent, significant increase in Mrs Y’s needs. This was potentially enough to justify the Care Provider giving notice. Only the Care Provider can decide whether it can meet someone’s needs and must act if it cannot, even if it means giving notice. However, support with eating and drinking is unlikely to be a nursing need as confirmed by the hospital. It is regrettable that people with advanced dementia can be asked to move home against their wishes given the confusing and distressing impact a move is likely to have. Fortunately, for Mrs Y, the move proved successful.

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Recommended action

33. To remedy the injustice identified above, I recommended the Care Provider:
• Apologise to Mrs X and Mr X;
• Ensure all staff are aware of the need to maintain an accurate, complete and contemporaneous record, for each resident which includes updating care plans;
• Ensure all current care plans are updated and reflect any changes detailed within reviews;
• Ensure family and other representatives are kept updated; and
• Complete the first action within one month of my final decision and the remaining within three months of my final decision, also provide evidence of this to me. Suitable evidence would include a copy of the apology letter and an action plan showing the action planned to achieve this and progress made.

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Final decision

34. I have completed my investigation and found the Care Provider’s actions caused injustice.

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Investigator's decision on behalf of the Ombudsman