Summary: Mr and Mrs E complained about the standard of care Mr F and the late Mrs F received when they were admitted to the Care Provider’s nursing care unit. We find the Care Provider caused an injustice when it failed to keep accurate records, failed to respond to the call bell in time and failed to properly communicate and work in partnership with the family. It also failed to properly explore Mrs F’s mental capacity. The Care Provider has agreed to our recommendations to address the injustice caused.

The complaint

1. Mr and Mrs E complained about the standard of care Mr F and the late Mrs F received when they were admitted to the Care Provider’s nursing care unit. They say there was poor and inaccurate record keeping, a failure to communicate and work in partnership with the family, a failure to understand Mrs F’s needs and poor staffing which resulted in long delays in answering the call bell.
2. Mr and Mrs E say the Care Provider’s failings have caused immeasurable upset and distress to the family.

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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. We may investigate complaints from the person affected by the complaint issues, or from someone they authorise in writing to act for them. If the person affected cannot give their authority, we may investigate a complaint from a person we consider to be a suitable representative. (section 26A or 34C, Local Government Act 1974)
6. 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)
7. 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

8. I considered information from Mr and Mrs E and Mr F. I made written enquiries of the Care Provider and considered information it sent in response.
9. Mr and Mrs E and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Care home regulation and guidance

10. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
12. Regulation 9 says care and treatment must be appropriate and meet service users’ needs.
13. Regulation 12 says care and treatment must be provided in a safe way for service users.
14. Regulation 17 says care providers should maintain an accurate, complete, and contemporaneous record in respect of each service user.

Mental capacity and best interest decisions

15. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
16. A key principle is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests.
17. The Act says a person must be presumed to have capacity to make a decision, unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• Because he or she makes an unwise decision.
• Based simply on their age, their appearance, assumptions about their condition or any aspect of their behaviour; or
• Before all practicable steps to help the person make a decision have been taken, without success.

18. Decisions about mental capacity are distinct from lasting power of attorneys. Mental capacity assessments are decision specific. So sometimes someone can have mental capacity to make a specific decision, despite having an Attorney to make other decisions on their behalf.
19. When a person’s capacity is in doubt, a care provider must assess their capacity to make a decision. How they assess capacity may vary depending on the complexity of the decision.

Lasting power of attorney (LPA)

20. This is a legal document that lets a person appoint one or more people to help make decisions or make decisions on their behalf. There are two types of LPA: ‘health and welfare’ and ‘property and financial affairs’.

What happened

21. Mr F is a resident at the Care Provider’s care home, Richmond Villages Witney. His late wife (Mrs F) was also a resident. She had vascular dementia.
22. Mr and Mrs F’s son (Mr E) holds a health and welfare and property and financial affairs LPA for Mr F. Both Mr E and Mr F also held health and welfare and property and financial affairs LPAs for Mrs F. Mr and Mrs F also stated they were happy to share confidential information about their care with their daughter-in-law (Mrs E).
23. Mr F fell in March 2021. He was admitted to the nursing care unit for respite and rehabilitation. Mrs F was also admitted to the nursing care unit. They were previously living in the assisted living unit.
24. Mrs F complained of chests pain on 28 March. She was taken to hospital for further investigation. The doctor discharged Mrs F and she returned to the nursing care unit. He noted she had a likely chest infection. He also said she was going downhill because of her cognitive impairment.
25. Mr F returned to the assisted living unit on 29 March. Mrs F was due to return the following day.
26. The nurse assessed Mrs F on 30 March. Mrs F said she wanted to stay on the nursing care unit for a few more days. The nurse decided it would be better for Mrs F to stay on the nursing care unit because she was feeling unwell.
27. The duty manager called Mr E and said Mrs F would not be returning to the assisted living unit. He also said it was Mrs F’s wish not to return. Mr E was unhappy and asked for the domiciliary care manager to review matters as she knew Mrs F well.
28. The domiciliary care manager assessed Mrs F and told the family she was comfortable and so it would be best to move her the following morning.
29. Mr E called the nursing care unit on 31 March to discuss the plan to move Mrs F. Mr E says the nurse he spoke to refused to accept his role as LPA. The Care Provider says the nurse could find no evidence that Mrs F lacked mental capacity. It also says the nurse phoned the GP, and the GP confirmed they had no record of Mrs F not having mental capacity.
30. Mrs F reported that she was feeling unwell later that day. A member of staff called the GP and the emergency services. Mr E called and the nurse told him she was dealing with an emergency. However, she did not inform him the emergency was Mrs F.
31. The paramedics assessed Mrs F and recommended for her to be taken to hospital. Mrs F said she wanted to go to hospital for further treatment. The daily notes state there was no documentation which said she did not have mental capacity. Therefore, it was appropriate for her to go to hospital. Mr E was unhappy with this decision.
32. Mr F complained to the Care Provider on 19 April about the care it provided to him and Mrs F. He said there was inadequate staffing and long delays in answering the call bell, there was a lack of communication with the family and medical observation was poor.
33. Mrs F sadly died on 27 April.
34. The Care Provider responded to the complaint on 18 May. It said apart from two wait times of five and 27 minutes, Mr F did not have to wait for a response to the call bell for more than five minutes. It also apologised if it did not include Mr F in conversations about Mrs F’s care. It said communication from the nursing care unit was good, but not perfect.
35. Mr F was unhappy with the Care Provider’s response and referred his complaint to stage two of its complaints procedure. Mr and Mrs E also reviewed Mrs F’s care records and sent their concerns to the Care Provider.
36. The Care Provider issued its final response on 13 August. It said:

• Mr F activated his call bell 159 times and it did not respond to 48 of these within the five-minute threshold target.
• The fitness team engaged with Mr F, but it was inconsistent. There was also a failure to record the interactions in the care plan.
• An agency nurse completed Mrs F’s care plan, and therefore it was not at the standard it would expect.
• There were inaccuracies in Mrs F’s care plan.
• Staff failed to follow up on Mrs F’s possible urinary tract infection (UTI).
• There was a missed opportunity to understand Mrs F’s wishes.
• Documentation and record keeping was inconsistent.
• There was nothing documented in the care plan about the preferred communication method with the family, or how often it would provide updates.
• The decision for Mrs F to remain on the nursing care unit was made in her best interests. However, it failed to keep the family updated about Mrs F’s condition.
• It was disappointed about the service the family had received and was sorry for the upset caused. It had implemented changes to ensure other residents did not have the same experience.

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Analysis

Record keeping and Mr and Mrs F’s care

37. The Care Provider acknowledges its record keeping was poor. I have looked through Mrs F’s care plan and there are large gaps. I agree with the Care Provider that it missed opportunities to understand Mrs F’s wishes. There is nothing in the care plan to confirm the preferred communication with Mrs F’s family. The Care Provider could have avoided problems with its communication during Mrs F’s stay if its record keeping was complete.
38. Mr and Mrs E identified several inaccuracies in the care plan, which the Care Provider has not disputed. Mrs F’s toilet needs, choices about her care and her safety risks were either inaccurate or not fully completed. There are also inaccurate references to Mrs F having multiple sclerosis.
39. The recording in the daily notes, daily personal care supplementary charts and welfare checks for Mrs F is inconsistent.
40. Staff in the nursing care unit also failed to cross check records from when Mrs F was living in the assisted living unit and seek further clarity where appropriate.
41. With regards to Mr F, the fitness team did engage with him, but they failed to record it in the care plan. The fitness team’s engagement with him was also inconsistent and there was also miscommunication that a physiotherapist needed to assess him to prescribe treatment and exercise.
42. Regulation 17 of the CQC guidance is clear that all care providers should maintain accurate, complete, and contemporaneous records in respect of each service user. Accurate record keeping is vital for the safe delivery of care. The Care Provider fell short of its duties in this Mr and Mrs F’s case. This leads to an uncertainty about the standard of care it provided.
43. The daily notes for Mrs F on 21 March state that she had a possible UTI. The notes also state she would need to provide a sample for the GP, and staff would follow it up on Monday morning. The Care Provider failed to follow this up or investigate it further. Regulation 9 of the CQC guidance says care and treatment must be appropriate and met service users’ needs. The Care Provider’s actions potentially put Mrs F at risk. It is understandable why Mr and Mrs E and Mr F feel the Care Provider’s failure to follow up on the potential UTI contributed to the sudden deterioration of her health.

Failure to work in partnership with the family and decisions about Mrs F’s care

44. Mr and Mrs E say the Care Provider should have consulted with them before completing Mrs F’s care plan. They say Mr F was feeling unwell when staff completed Mrs F’s care plan with him. Mr and Mrs E’s role had been well established when Mrs F was living in the assisted living unit. Therefore, there should have been some communication with them to ensure Mrs F’s care plan was accurate. The Care Provider could have avoided the inaccuracies in the care plan if it had worked with all family members.
45. Mr E says the Care Provider assessment of Mrs F’s mental capacity fell short of professional standards. He also says the duty manager’s conduct fell short and the Care Provider failed to properly consult with the family. Finally, he says a nurse told him in a conversation that she would consider taking adult safeguarding advice in relation to Mrs F’s care. He says this was inappropriate.
46. Mrs F’s care plan states she had full mental capacity. It also says in the event she could not make a decision, Mr E and Mr F should be contacted to make decisions on her behalf. Further on in the care plan it states Mrs F did not have the capacity to consent for the Care Provider to share her confidential information with other people. Therefore, Mr F made a best interests decision on her behalf. There was clearly some recognition by staff that Mrs F lacked mental capacity in some areas. The Care Provider failed to properly explore Mrs F’s mental capacity and conduct a detailed assessment.
47. Mrs F decided she did not want to return to the assisted living unit on 30 March. She also said she wanted to go to hospital on 31 March. Staff said that Mrs F had the mental capacity to make these decisions. As I have mentioned in paragraph 46 above, I find the Care Provider failed to properly explore the issue of mental capacity. The doctor had also noted in his discharge letter of 28 March that Mrs F was going downhill because of her cognitive impairment. It is not clear from the file whether staff properly considered this.
48. The Care Provider should have involved Mrs F’s family with the key decisions about her care. There also should have been regular communication with the family. The Care Provider’s actions fell short in Mrs F’s case. It failed to properly update the family, and they were left out of the decision-making process.
49. The Care Provider does not dispute the duty manager should not have contacted Mr E. He did not have the relevant clinical experience, and so this conversation would have caused Mr E distress.
50. There is nothing in the Care Provider’s records which states a nurse told Mr E she would consider taking safeguarding advice. I cannot come to a safe conclusion on whether this was discussed or not.

Delays in answering the call bells

51. The Care Provider accepted in its response to the complaint that it did not respond to Mr F’s call bell within the five-minute threshold on 48 occasions. This meant Mr F was waiting for help longer than he should have been.
52. I have also reviewed Mrs F’s call bell log and staff failed to respond to her call bell within five minutes on eight out of 18 occasions. There are also two occasions where Mrs F was waiting over an hour for help.
53. When the Care Provider responded to the complaint, it said it now analyses the call bell log and reports on it weekly. The rota is reviewed daily by the head of care, and it has delivered further training to staff.

Remedy

54. The Care Provider has apologised for the upset and distress caused to the family. It has also now made service improvements, including recruiting a new head of care and dementia lead. It has also introduced a new quality improvement plan.
55. When the Care Provider responded to my enquires, it confirmed that Mr F has not paid for the last week of care and therefore £1507.71 remains outstanding. The amount outstanding for Mrs F is £1832.14. The Care Provider said it offered to waive these fees in recognition of its failures and the upset caused. This represents a nearly 30 percent reduction in fees. Mr F disputes this and said he decided to withhold payment pending the outcome of the investigation into his complaint.
56. It is clear the Care Provider’s actions caused a significant injustice to Mr and Mrs E and Mrs and Mrs F. Mr and Mrs F did not receive the care they deserved. Mr and Mrs E and Mr F were not properly consulted, which caused distress and upset.
57. The Care Provider’s actions go some way in addressing the injustice I have outlined. However, I consider the Care Provider needs to issue further apologies to Mr and Mrs E and Mr F specifically in relation to the issues surrounding Mrs F’s mental capacity. The Care Provider also needs to make a payment to Mr and Mrs E to reflect their injustice.
58. I recommend further service improvements to ensure the same problems do not reoccur. The Care Provider also needs to provide evidence it has implemented the service improvements in relation to responding to call bells.

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Agreed action

59. To address the injustice, by 14 April 2022 the Care Provider has agreed to:

• Provide written apologies to Mr and Mrs E and Mr F for distress and upset caused by its failure to properly explore Mrs F’s mental capacity.
• Write to Mr F to confirm it is waving the outstanding care fees of £3,339.85 for his and Mrs F’s care.
• Pay Mr and Mrs E £350 as an acknowledgement of their upset and distress.

60. By 9 June 2022, the Care Provider has agreed to provide training to relevant staff in relation to:

• Good record keeping and the impact poor record keeping has on the person receiving the care.
• Ensuring care plans are accurate and they properly record the individual needs of service users.
• Communicating effectively with families and ensuring they are involved in key decisions about a service user’s care, including full awareness of the role of LPAs.
• Ensuring mental capacity is fully explored and key decisions surrounding it are properly documented.

61. The Care Provider will provide evidence by 9 June 2022 of the service improvements it has implemented in relation to responding to call bells.

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Final decision

62. I have completed my investigation and found the Care Provider’s actions caused an injustice. The Care Provider has agreed to my recommendations to address that injustice.

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Investigator's decision on behalf of the Ombudsman