The Ombudsman's final decision:
Summary: The complainant says a care home, acting on behalf of the Council, failed to properly support her husband. The care home failed to follow a care plan, act after it found unexplained bruising, and properly record best interest decisions. The Council has agreed to apologise to the complainant, pay her £350 and through contract monitoring ensure staff are reminded/trained about the importance of recording and following care plans.
- The complainant who I call Mrs C complains in her own right and on behalf of her late husband who I call Mr C. Mrs C says White Gables a care home run by HC One, the “Care Provider”, arranged and funded by the Council:-
- inappropriately restrained Mr C;
- showered Mr C against his wishes;
- left the television on too loud;
- escorted Mr C from the care home inappropriately, and failed to give him his medication the same morning;
- failed to support Mr C with dignity and respect;
- failed to respond to Mrs C’s complaint properly.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended)
- We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
- If we are satisfied with a council’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)
How I considered this complaint
- I spoke with Mrs C about her complaint and what she wanted to achieve. I asked the Council questions about the care provided. I considered:-
- Mr C’s case records, care plans and risk assessments;
- complaint correspondence;
- the Care Quality Commission (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. I have used the fundamental standards as a benchmark for considering this complaint.
What I found
- Mr C had dementia which resulted in sometimes challenging behaviour. To give Mrs C a break from caring and to assess what support Mr C needed a mental health nurse suggested Mr C enter White Gables for two weeks.
What should have happened
- 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.
- A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
- 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.
- Regulation 10 - says people using the service are treated with respect and dignity while they are receiving care and treatment.
- Regulation 12 – says care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
- Regulation 17 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.”
- Mrs C raises several complaints which for ease I will deal with in turn, outlining what happened and whether I consider there was fault causing injustice.
(a) Inappropriately restrained Mr C
- Mrs C says when Mr C returned home, he had restraint marks on his body, witnessed by neighbours. The Care Provider says they have no restraint policy and at no time did care staff restrain Mr C. There is no record of restraint in the care records. The records do however support Mrs C’s observation that Mr C developed bruising on the bottom of his shins whilst at the care home. There is no explanation about what prompted care staff to complete a body map at the time and no analysis of the bruising as part of the care notes.
- The records show Mr C could display aggressive behaviour both towards himself and others on a frequent basis. This includes hitting his head against the wall, throwing things at care staff, pinching, and kicking. It is therefore difficult to say now how the bruising was caused. The body map form says, “Remember to report any concerns to the person in charge and if bruising is unexplained, not as a result of a known accident/incident an incident form must be completed”.
- There is no record of an accident or incident on the day in question. The Care Provider failed to complete an accident/incident form. This is fault and a potential breach of Regulation 17.
- Had the Care Provider completed an incident form there would have been an investigation about the bruising which may have highlighted how the bruising was caused. As a result of the Care Provider’s failure Mrs C has uncertainty and frustration that the issue was not properly investigated at the time.
(b) The care home showered Mr C against his wishes
- Mr C’s care plan says he does not like personal care and can become aggressive. He therefore needed two staff members to support him with personal care. On 17 January 2021 records say five members of staff showered Mr C. The Care Provider says a shower was necessary as Mr C was covered in faeces and it was in his best interests to have a shower. Mrs C says because of Mr C’s dementia he was afraid of water and the carers’ actions would have caused him distress.
- I cannot find fault in the actions of the Care Provider. I understand Mrs C was upset carers showered Mr C against his wishes. However it appears for the health and safety of Mr C, and potentially other residents and staff members; there was no other action care staff could have taken which was less restrictive.
- A single carer showered Mr C a second time. There is no record Mr C was anxious. I do not intend to investigate this further as even if I were to find fault with the actions of the Care Provider I could not say the decision affected Mr C.
(c) The care home left the television on too loud.
- The Care Provider has accepted and apologised for leaving the television on too loud. This was contrary to Mr C’s care plan which said he liked quiet places and would have caused him distress. It may also have contributed towards his behaviour.
- Mrs C also has the injustice of not knowing the degree to which the care home’s actions caused Mr C distress.
(d) Escorted Mr C from the care home inappropriately and failed to give him his medication the same morning.
- On the day Mr C was leaving the care home care staff could not persuade him to have his breakfast or medication. Mrs C arrived at 11am to collect Mr C. At this point Mr C was aggressive towards staff. His coat ripped as care staff helped him to leave the care home. Once outside Mr C was trying to sit down. The Care Provider says two members of staff were encouraging Mr C to leave the care home. Another member of staff was holding open the door, and a further member collecting a package for Mrs C.
- Mrs C says Mr C left the care home in an undignified manner with five care staff forcing him out of the care home, without a coat in the rain. She says witnessing this caused her great distress.
- I understand Mr C’s behaviour could be challenging. The care plan says at these times care staff should use diversion tactics. However, there is no record on this morning care staff used other techniques either to encourage Mr C with his breakfast and medication or when he was leaving the care home. I consider this is fault and a potential breach of Regulation 12.
- I cannot say now whether Mr C’s behaviour would have been different had the care home acted without fault. However Mrs C has the uncertainty the distressing scenes could have been avoided.
(e) Failed to support Mr C with dignity and respect
- It is clear from the case recording and from Mrs C that Mr C’s behaviour was at times difficult to manage. The Care Provider used medication and diversion techniques to manage the behaviour. Indeed the Care Provider was quick to act in contacting medical professionals about Mr C’s medication. Some of the diversion techniques included “setting apart” Mr C so he could have quiet time.
- Mrs C says the Care Provider’s failure to consider his individual needs and preferences and the decision at times to separate him was failing to support him with dignity and respect.
- There is no evidence the Care Provider properly considered what was in Mr C’s best interests when it was making decisions about his personal care or what/when he should have “quiet” time. I consider this is fault and not in line with both Regulation 10 and the Mental Capacity Act.
- As a result Mrs C has the uncertainty of not knowing whether the decisions the Care Provider made were in Mr C’s best interests.
(f) failed to respond to Mrs C’s complaint properly.
- Mrs C says the Care Provider failed to consider her complaints properly. I cannot find fault with the Care Provider’s and the Council’s actions. The Care Provider sent Mrs C a written response on 18 June 2021 two weeks after her initial complaint, and a follow up letter on 8 July 2021 in reply to her response. While I understand Mrs C did not agree with the outcome of the complaint, the Care Provider was entitled to complete an investigation and reach its own conclusions. The Care Provider also accepted and apologised for not following Mr C’s care plan about noise.
- Mr C went into the care home in an emergency. The Care Provider liaised with several professionals and Mrs C to try to ensure it cared for Mr C properly in difficult circumstances. The Care Provider also accepted some fault early in the complaints process and apologised to Mrs C. The context and early actions are acknowledged and welcomed.
- I have however found fault causing injustice. As the Council commissioned the care I can only make recommendations against the Council. Mr C will not benefit from any action now. Mrs C was distressed by seeing bruising and not knowing the cause, the manner Mr C left the care home, and the failure of care staff to always treat Mr C with dignity and respect.
- The agreed actions are to acknowledge the distress the failures caused Mrs C and to improve future practice. The Council has agreed to:-
- apologise to Mrs C for the failures I have identified in this statement and pay her £350 in acknowledgement of the uncertainty and distress the Care Provider’s actions caused her;
- through its contract monitoring processes ensure the Care Provider addresses the faults identified and that measures are in place to remind/train staff about:-
- the processes to follow when body maps are completed;
- documenting how care staff have made best interest decisions;
- adherence to care plans.
- I have found fault causing injustice. I consider the agreed actions above are appropriate to remedy the complaint. I have now completed my investigation and closed the complaint.
- 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.
Investigator's decision on behalf of the Ombudsman