The Ombudsman's final decision:
Summary: Mr P complained about several aspects of the care his father, Mr X, received at the care home he was living. Mr P says the poor care caused harm and distress to Mr X. We have found fault with some of the areas complained about. These included missed medication, inadequate fall prevention practices, poor record keeping, failure to respond to concerns raised by the hospital and not progressing a health funding application. To remedy the injustice caused to Mr X, the care provider has agreed to apologise and refund some of his care fees. It has also agreed to make a payment to Mr P to acknowledge his distress, time and trouble. While the care provider has already taken action to improve standards, we also recommend the care provider should take steps to ensure concerns raised by third parties are properly investigated and health funding applications are completed.
- The complainant, Mr P, complains on behalf of his father, whom I shall call Mr X. Mr P complains about the care his father received at Hamble Heights Care Home. In particular he complains about:
- Poor standards of care including, missed medication and inadequate fall prevention strategy.
- Inadequate care resulting in a hospital admission due to dehydration, constipation and delirium.
- Poor communication, both during his time at the home and in dealing with his complaint.
- Failure to properly facilitate contact during the Covid-19 lockdown.
- Failure to secure additional health service funding.
- Mr P says this caused avoidable injury, loss of mobility, financial loss and long-term health problems for Mr X. It also caused Mr P distress and inconvenience dealing with this matter.
The Ombudsman’s role and powers
- 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)
- If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
- We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)
- Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
How I considered this complaint
- During my investigation I discussed the complaint with Mr P and considered the documentation he submitted.
- I made enquiries of the Care Home and considered its response. This included Mr X’s care plans and daily case notes.
- I consulted the law and guidance relevant to this complaint, referenced where necessary in this statement.
- I issued a draft decision statement and invited comments from Mr P and the Care Home. I considered all comments received before making a final decision.
What I found
Relevant law and policy
Care home regulations and guidance
- The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers, inspects care services to assess if they meet the fundamental standards of care and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
- 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall.
- Regulation 9 says care and treatment must be appropriate and meet service users’ needs.
- Regulation 12 says care and treatment must be provided in a safe way for service users.
- Regulation 14 says service users should have adequate nutrition and hydration to sustain life and good health.
- Regulation 17 says care providers should maintain an accurate, complete, and contemporaneous record in respect of each service user.
- Regulation 20 requires care providers to be open and transparent when things have gone wrong. As soon as the care provider becomes aware of a safety incident, it must tell the person or their relative; provide reasonable support, advise them of any further enquiries, keep a written record and apologise.
- A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (Section 42, Care Act 2014)
Funded nursing care (FNC)
- The NHS Funded Nursing Care Practice Guide 2013 says “NHS Funded Nursing Care, introduced in October 2001 is the funding provided by the NHS to care homes providing nursing, to support the provision of nursing care by a registered nurse for those assessed as eligible.... the need for care from a registered nurse should be determined. If the individual has such a need and it is determined that the individual’s overall needs would be most appropriately met in a care home providing nursing care, this would lead to eligibility for NHS- funded nursing care. Once the need for such care is agreed, the CCG’s responsibility to pay a flat rate contribution towards registered nursing care costs arises”
- Eligibility for FNCs is by assessment. Payments are administered by a resident’s local Clinical Commissioning Group (CCG) and are made directly to the care provider. The resident does not receive any money directly.
- Mr X moved into Hamble Heights (the Care Home) in June 2019. Mr X has Parkinson’s Disease and several age-related health conditions. He requires certain medication to be administered at very specific times to control the symptoms of his Parkinson’s Disease.
- Mr P says at the start of the placement he was satisfied with the quality of care but after some experienced staff left around November 2019, he says the standards started to fall.
- Between January and July 2020, there were several incidents of concern. There were three occasions when the Care Home failed to administer his medication properly. Mr P was also concerned by the number of times Mr X had fallen. He questioned the ability of the Care Home to properly supervise his father and have a proper fall prevention strategy in place. Mr P complained to the Care Home.
- Mr X also raised these concerns with both the CQC and the local social services authority (the Council). The Council started a safeguarding investigation in October 2020. This highlighted several areas of concern about the standard of care given to Mr X and potentially other residents. The areas of concern were:
- Poor record keeping.
- Inadequate falls reporting procedures.
- Care plans were inconsistent, too basic and lacked clinical guidance.
- Incidents of missed medication were confirmed and raised concerns about the Care Home’s practice in this area.
- Mr X was observed sitting in an inappropriate chair that was a falls risk.
- In response to these findings, the Care Home agreed to undertake staff training in several areas and improve its practices.
- After a satisfactory review of the work that had taken place to improve standards, the Council closed its safeguarding investigation in January 2021.
- The following month, Mr X’s health deteriorated, and he was admitted to hospital. Mr P says the hospital raised concerns about Mr X’s condition when he arrived. He was reported to be constipated and dehydrated.
- Mr X was discharged from hospital to a different care home. Mr P says he had lost confidence in the Care Home’s ability to provide a safe environment for his father and so did not want him to return.
- Mr P complained again to the Care Home. While he was initially satisfied the Care Home had taken remedial action during the safeguarding investigation, what happened afterwards suggested standards had not improved. He sent a pre-action protocol letter stating his intention to start court proceedings for breach of contract. He also complained about the Care Home’s failure to complete an application for FNC funding.
The Care Home's response to Mr X’s complaint
- The Care Home denied the Council’s safeguarding investigation was evidence of inadequate care.
- The action taken by the Care Home in response to the safeguarding concerns demonstrated a commitment to improving standards.
- The three occasions when Mr X’s medication was either missed or administered incorrectly were described as “a series of isolated incidents” and did not amount to “a pattern of wider failings that might give rise to a breach of contractual or common law duty”.
- The Care Home disputed there had been 32 falls between July 2020 and January 2021. It said there were 11 recorded falls. The Care Home was satisfied sufficient measures had been put in place to both prevent and mitigate the impact of falls.
- Prior to his admission to hospital in February 2021, the Care home had monitored his condition and when it became a concern, called 999. No concerns had been raised directly by the hospital about dehydration or constipation
- The Care Home did not agree to a partial refund of Care Home Fees or additional payment for “pain, suffering and anxiety”.
- The non-payment of FNC funding was not the responsibility of the Care Home. The Care Home made the application on time but was not processed by the NHS.
- Dissatisfied with this outcome, Mr P brought his complaint to the Ombudsman. He says the Care Home should apologise and reduce the amount paid by Mr X for the period of time (four months) his father’s care was subject to scrutiny by the Council’s safeguarding investigation.
- I will address each of Mr P’s separate areas of complaint below.
Poor standard of care including, missed medication and inadequate fall prevention strategy
- The Ombudsman does not reinvestigate matters that have already been subject to external scrutiny, as was the case here. The minutes from the three safeguarding meetings between November 2020 and January 2021 demonstrate the Council carried out a full and detailed safeguarding investigation into the concerns raised by Mr P. All relevant records were carefully analysed by both the Council and CQC, and several areas of service improvement were identified.
- The several areas of concern identified during the safeguarding investigation is evidence of fault by the Care Home. I am satisfied Mr X did not receive the expected standard of care for some of the time he was at the Care Home.
- This demonstrated a failure to comply with the expected fundamental standards (Regulations 9, 12 and 17).
- To the Care Home’s credit, I am satisfied it engaged with the safeguarding process and took action to address the areas of concern, through staff training and review of its procedures, particularly in relation to record keeping, falls prevention and administration of medication.
- However, I am not satisfied the Care Home properly considered the personal injustice to Mr X or taken action to remedy this, particularly as the Care Home’s service failure caused harm to him. Mr P says his father’s health, particularly his mobility and propensity to fall was affected by the medication problems. The safeguarding enquiry confirmed this.
- I have made recommendations below to remedy this injustice.
Inadequate care resulting in a hospital admission due to dehydration, constipation and delirium
- The Care Home rejected Mr P’s claim that Mr X’s deteriorating health in February 2021 was ignored by staff. It said Mr X was sleepy through the day and it was difficult to wake him to eat and drink. Emergency services were called as soon as the duty nurse became concerned about him.
- I have read the daily care records for the days leading up to Mr X’s hospital admission on 28 February 2021. While I can see Mr X was monitored appropriately in the week leading up to his admission, it is clear that he was sleeping much more than usual and this impacted on his food and fluid intake during this time.
- His family expressed concern on 23 February 2021 and it seems there was some improvement over the following two days. He was reported to have had a good fluid and food intake on the following three days. He slept for most of the day on 27 February 2021 and care staff became more concerned the next day and this led to his admission to hospital.
- Shortly after his admission, Mr X’s daughter advised the Care Home that the hospital was “not happy with the state he was in considering he came from a care home” and that he was dehydrated and constipated and the next 24 hours were critical. According to the case notes this information was passed onto the Care Home’s management but there are no records about what action was taken as a result of this.
- I would expect to see, at the very least, some evidence about what happened as a result of this concerning report from the hospital. In its complaint response to Mr P, the Care Home stated it had received no information from the hospital directly. However, it was aware, via Mr X’s daughter about what was said. This should not have been, as the evidence suggests, disregarded. It was a serious comment and I have no reason to disbelieve what Mr X’s family reported. It is understandable why this then raised concerns about the quality of care that had been offered to Mr X prior to his admission to hospital.
- Regulation 20 of the fundamental standards expects care providers to be proactive when they become aware of a potential problem. While the Care Home was not informed by the hospital directly, it was notified by Mr X’s family of the hospital’s concerns. Its failure to take any action to make enquiries about this matter is fault.
- However, it is not possible for me to determine with enough certainty, on the evidence I have seen, that poor care was directly responsible for Mr X’s decline in health and for this reason have not found fault.
Poor communication, both during his time at the home and in dealing with the complaint made on his behalf
- Poor communication between Mr P and the Care Home about his various concerns was considered by the safeguarding enquiry. The Care Home took action to make improvements is this area and I do not consider it is necessary for this matter to be investigated further, particularly as there is no ongoing injustice to Mr P.
- From the correspondence I have seen Mr P first raised a formal complaint following an incident of missed medication on 15 September 2020. The Care Home provided its full response on 19 October 2020 and there was some contact with Mr P between these dates. Mr P indicated to the Care Home at that time that he was satisfied with the outcome and the measures being put in place to address his areas of concern. Mr P complained again, by way of pre-action letter on 3 March 2021, prompted by what had happened when his father was admitted to hospital. The Care Home explained it was necessary to take legal advice and for this reason its reply was delayed until 15 June 2021.
- While I agree this delay of three months was unfortunate, I am satisfied with the explanation provided by the Care Home for this. Mr P’s letter had put the complaint on a more legal footing and was asking for significant financial compensation for breach of contract and it is reasonable for the Care Home to have had to seek its own legal advice on the matter. Mr X was no longer at the Care Home and so the immediate urgency had passed.
- I have not found the Care Home to be at fault.
Failure to properly facilitate contact with his family during Covid-19 lockdown
- Again this matter was considered by the safeguarding enquiry. The Care Home provided Mr P with an explanation for the difficulties it was facing at that time during the pandemic to facilitate contact. It took steps to improve the wi-fi connection at the Care Home and followed its procedures by allowing a limited number of family members to visit. Taking into consideration the difficulties faced by all residential homes at this time, and the action taken by the Care Home, I have not found fault here.
Failure to secure additional health service funding, leading to higher fees being paid.
- The Care Home has explained it applied for additional health funding in July 2020 but this was not processed by the health authority and a further application was made in January 2021. This did not progress, partly due to Mr X leaving the Care Home. The Care Home says it chased this application, but I have seen no evidence of this.
- Had this additional funding been in place, Mr X would have saved approximately £6000.
- The main fault with this would seem to rest with the health authority. However, the Care Home should have made more effort to secure this funding. Failure to be able to evidence it did so is fault. My remedy for this fault (set out below) however, reflects the fact I am satisfied the application was made on time.
Injustice and remedy
- Mr P does not believe Mr X should pay for some of the period he was resident at the Care Home. The Care Home has not so far agreed to make such a reduction although has indicated a willingness to consider doing so in response to the Ombudsman’s enquiries. The Care Home’s position was that it had cooperated fully with the Council’s safeguarding enquiry and put measures in place to improve standards.
- While I welcome this, it does not remedy the personal injustice to Mr X. Mr P has suggested a meaningful remedy would be for the Care Home to refund half of the charges Mr X paid for the four months that the Care Home was subject to safeguarding scrutiny. Taking into consideration what happened and criticism expressed by both the Council and the CQC about practices at the Care Home, I consider this to be a fair and proportionate remedy.
- In addition, I also find the Care Home should remedy some of the financial loss to Mr X as a result of his nursing funding not being progressed as it should have done. The figure I have recommended below reflects the fact the main fault her lies with the health authority.
- I am satisfied the Care Home has taken appropriate action in response to the recommendations raised through the safeguarding investigation. However, it should review its procedures to ensure potential safeguarding concerns are acted upon in future.
- I also consider the failings in this case have caused Mr P distress and he has been put to avoidable time and trouble pursuing her complaint. This requires a remedy.
- Within four weeks of my final decision the Care Home has agreed to take the following action:
- Apologise to Mr X and Mr P for the faults identified in this decision statement.
- Refund 50% of Mr X’s fees for the period of time he was the subject of a safeguarding investigation (four months).
- Pay Mr X £500 to acknowledge the failure by the Care Home to complete his FNC funding application.
- Pay Mr P £500. This is a symbolic payment to acknowledge his distress and inconvenience dealing with this matter. The Care Home has voluntarily increased by 50% the amount proposed in a draft version of this decision as a gesture of goodwill.
- Reflect on the concerns raised in this decision and provide the Ombudsman with a summary of action taken to ensure such matters do not reoccur.
- I have found fault and the Care Home has agreed a suitable remedy for the injustice caused.
Investigator's decision on behalf of the Ombudsman