Summary: Mrs X complained about the care her mother Mrs Y received between June 2019 and August 2020 at the Care Provider’s Priory Court Care Home. There was fault in how the Care Provider planned Mrs Y’s care, monitored her treatment and shared information with her close family. This caused Mrs Y’s family significant uncertainty and distress. The Care Provider agreed to apologise, pay a financial remedy and review its processes.

The complaint

1. Mrs X complained about the care her mother, Mrs Y, received between June 2019 and August 2020 at the Care Provider’s Priory Court Care Home. She said the Care Provider failed to properly plan Mrs Y’s care, provide her with physiotherapy, monitor or treat wounds on her legs, keep accurate records or keep Mrs Y’s family informed about her health.
2. As a result, Mrs X said Mrs Y became unable to walk, was caused avoidable suffering and died in September 2020. She also said this caused significant distress to her and Mrs Y’s family.
3. Mrs X wanted the care provider to employ more health care staff, improve wound care training and improve its care planning to include the views of family members.

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The Ombudsman’s role and powers

4. 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. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
6. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
7. 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, sections 26A(2) and 34C, as amended)

8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
9. If we are satisfied with an organisation’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)
10. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

11. I considered:
• the information Mrs X provided and discussed the complaint with her;
• the care provider’s comments about the complaint and the supporting information it provided, including Mrs Y’s care records;
• relevant law, guidance and policy; and
• Mrs X and the Care Provider’s comment on my first draft decision.
12. Mrs X and the Care Provider had an opportunity to comment drafts of this decision. I considered their comments before making a final decision.
13. 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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What I found

Fundamental standards of care

14. 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.

Person-centred care

15. Regulation 9 says all care and treatment must be appropriate, meet the recipient’s needs and reflect their preferences. This includes involving the person, and their family if appropriate, in planning their care.

Safe care and treatment

16. Regulation 12 says all care and treatment must be provided in a safe way. This includes:
• assessing risks to those receiving care and treatment;
• properly mitigating those risks; and
• ensuring those who provide care and treatment have the qualifications, competence, skills and experience to do so safely.

Staffing

17. Regulation 18 says providers must take appropriate steps to ensure that, at all times, there are sufficient numbers of suitably qualified, skilled and experienced persons employed to provide the service in question. However, there are no mandatory rules for service providers setting out what constitutes a sufficient level of qualified staff. This is a decision that is ordinarily made at local level (such as by a care home or hospital), taking into account the level and acuity of the needs of the patients or residents in that facility.
18. The Care Quality Commission (CQC) is the independent regulator for health and social care services in England. In this capacity, the CQC is the agency best placed to consider whether a care home has appropriate staffing resources in place in general terms.

Duty of candour

19. Regulation 20 says care providers must act in an open and transparent way with service users and their families. This includes telling people and their families about serious incidents which caused or might cause harm. These notifications must include an explanation of what happened, an apology and details of what investigation the care provider intends to carry out into the incident. This information must also be provided in writing.

Care Provider’s guidance

20. The Care Provider’s guidance on wound management says that:
• staff should take photographs of wounds on a regular basis to monitor any changes;
• treatment plans should be recorded for each wound, which should be regularly measured and recorded; and
• extensive wounds should be reviewed by the care home manager, or deputy manager weekly and should be discussed at weekly clinical risk meetings.

What happened

21. Mrs Y had Alzheimer’s Disease. She moved into the Care Provider’s Priory Court Care Home in Epsom (the ‘care home’) in June 2019. The care home records note that Mrs Y was at a high risk of falling and had a high risk of skin problems.
22. After moving into the care home, Mrs Y had two falls, both unwitnessed by care staff:
• December 2019 – Mrs Y fell in her bedroom, breaking her shoulder. Mrs Y spent several weeks in hospital and returned to the care home in January 2020. On her return to the care home, the Care Provider agreed with Mrs Y’s family that she would be moved to a nursing floor, since Mrs Y needed extra nursing care following her fall.
• May 2020 – Mrs Y fell in her bathroom, breaking her hip. She went into hospital for several weeks and returned to the care home in early June.
23. Shortly after returning to the care home in June 2020, care staff found wounds on Mrs Y’s leg. Nursing staff dressed the wounds and redressed her legs several times over the following week.
24. In late June, care staff noted that Mrs Y’s legs were “weeping”. Staff took photographs of her legs and sent these to Mrs Y’s GP for advice. Mrs Y’s GP said they would refer her to the district nursing service for an examination. However, the district nursing service did not visit Mrs Y because she was resident in a nursing home.
25. In early July, Mrs Y was assessed by the community physiotherapy team. She was advised to practice standing with a walking frame and to try walking to increase her mobility.
26. Around this time, Mrs Y’s legs had become “swollen, red [and bruised]”. A week later, Mrs Y’s legs had become “warm to the touch”, were turning “red/purplish” and her skin was “taught and cracking”. Care staff contacted an out-of-hours GP service. A doctor examined Mrs Y, prescribed anti-biotics and advised continuing the current dressings.
27. Over the rest of July, Mrs Y’s legs continued to get worse. At the end of July, Mrs Y’s GP viewed her legs by video call, prescribed anti-swelling medication and asked the care home to monitor Mrs Y’s weight daily.
28. In mid-August, Mrs Y’s GP asked the care home for an update on her condition. While this was provided, there is no record of any updated advice from Mrs Y’s GP.
29. Throughout August, Mrs Y’s legs continued to get worse until 27 August, when a care assistant noticed that Mrs Y’s right foot was changing colour. A nurse checked Mrs Y’s legs and changed her dressings, which were noted as having a greenish colour. Mrs Y’s dressings were checked, but not changed the following day.
30. On 29 August, a nurse changed Mrs Y’s dressings and took photographs of her legs. Later in the day, a nurse noted that Mrs Y’s right leg was “purplish in colour and had poor circulation”.
31. On 30 August, a nurse noticed Mrs Y’s leg was “quite discoloured and cold to the touch”. Care staff contacted NHS111 for advice. Following this call, Mrs Y was transferred to hospital by paramedics.
32. On admission to hospital, staff found that Mrs Y’s right leg was dead. This was later found to be due to a blocked artery in her leg. It was not possible to operate on Mrs Y and she died a few weeks later.

Care Provider’s internal investigation

33. Following Mrs Y’s death, the Care Provider completed an internal investigation into her care. This investigation found:
• wound care plans, assessments, photographs and changes in care needs were not documented effectively or in a timely manner;
• these poor records may have contributed to delays in effective care and prevented an overall picture of how Mrs Y’s wounds were changing;
• nearly two thirds of nursing staff at the care home lacked up-to-date wound care training; and
• nursing staff had not referred Mrs Y to a specialist wound care service.

My findings

34. We can consider complaints on behalf of someone who died from their personal representative or someone we consider suitable. While Mrs Y was alive, Mrs X had lasting power of attorney to act for Mrs Y. I am satisfied that Mrs X is a suitable person to complain on behalf of Mrs Y.
35. The events Mrs X complains about took place between June 2019 and August 2020. However, Mrs X complained to the Ombudsman in September 2021, so her complaint is late.
36. We can consider late complaints if we decide there are good reasons someone could not complain sooner. Mrs X said she only complained to the Ombudsman after her local council completed its safeguarding investigation in May 2021 and she needed to complain to the Care Provider before complaining to us. I am satisfied these are good reasons to consider the late complaint now.

Planning Mrs Y’s care

37. In its response to my enquiries, the Care Provider accepted it did not properly involve Mrs Y or her family in planning her care. This is something that Mrs X and Mrs Y’s family would have welcomed and is required by the fundamental standards. I am satisfied that not involving the right people in planning Mrs Y’s care caused avoidable distress, so was fault.
38. The care home records show that staff regularly reviewed the care plans and risk assessments for Mrs Y, usually monthly. However, there is evidence that, at times, these plans were contradictory and the records about how the plans were reviewed lacked detail given Mrs Y’s changing needs. Most reviews consisted of only a single line and others lacked any detail of what was considered. Given the number of plans which were reviewed on each occasion, I am not satisfied that the plans were reviewed in the detail they should have been.
39. When Mrs Y fell, this was in her own room and unwitnessed by staff. In June 2020, her care plan at the time said that Mrs Y should have a sensor mat to alert staff when she tried to get out of bed. However, there is no record of how Mrs Y fell without triggering the sensor mat or details about the circumstances in which Mrs Y was found. Based on this evidence, I am not satisfied the care plans for Mrs Y were being properly followed at the time of her fall or that her fall was properly investigated. This caused a risk to Mrs Y and so was fault.
40. The Care Provider said it has introduced a new care planning system which can allow families to be more involved in care planning for residents. However, it has not provided any evidence that it has improved, in practice, how it involves residents and family members in planning their care.

Physiotherapy

41. There is no evidence of medical recommendations that Mrs Y continue physiotherapy following her stays in hospital in late 2019 or mid-2020. Mrs X said she believed the care home employed an in-house physiotherapist, though the Care Provider said this was not the case from 2020. There is no obligation for care providers to offer in-house physiotherapy.
42. After her fall in mid-2020, Mrs Y was seen by the community physiotherapy team within a month of returning to the care home. The physiotherapist advised Mrs Y should practice standing with a walking frame and should try walking. However, there is no evidence that care staff encouraged or supported Mrs Y to follow that advice or work towards improving her mobility.
43. The evidence shows Mrs Y’s problems with her legs began shortly after her return from hospital in June 2020, before she was seen by the community physiotherapist. By July 2020 she had significant dressings on her legs which impacted her ability to walk. Combined with recovering from a hip-fracture, this would have significantly limited her mobility.
44. I cannot say that a lack of physiotherapy by the care home caused Mrs Y to fall in June 2020. At the time of both falls, Mrs Y was elderly and at a high risk of falls. Between the falls, Mrs Y was recovering from a severe shoulder injury and her June 2020 fall was also a result of a distressing incident early in the morning. Considering these factors, it is very possible that Mrs Y would still have fallen even if she had regained more mobility.
45. I also cannot say that a lack of physiotherapy by the care home caused Mrs Y’s leg problems. These started shortly after her stay in hospital, before she was seen by the community physiotherapy team, and progressed over a relatively short period of time.

Wounds on Mrs Y’s legs

46. The Care Provider’s own investigation found several failings in the recording and oversight of Mrs Y’s leg wounds, and in the lack of up-to-date wound care training for medical staff at the care home.
47. The evidence also shows that Mrs Y’s dressings were not changed daily, as the wound care plans said and as her family was told they were. There is no evidence that the care home manager or deputy checked Mrs Y’s wounds, or that her wounds were discussed at any clinical risk meetings.
48. I am satisfied these failures led to staff not having a proper overview of Mrs Y’s wounds and how they were changing, particularly when different nurses were treating her. This led to missed opportunities to refer Mrs Y for specialist advice. I am satisfied that the Care Provider did not meet the fundamental standards of care in respect of safe care and treatment and staffing.
49. However, I cannot say that, had these failures not happened, the outcome would have been different led or that the failures caused avoidable suffering for Mrs Y. Mrs Y’s condition deteriorated over a relatively short period of time and she was examined by other medical professionals during July and early August.
50. I am, however, satisfied that there remains a significant uncertainty about what would have happened had the wound care and recording been better. This uncertainty has caused Mrs Y’s children, including Mrs X, significant distress.

Record keeping and Mrs Y’s weight

51. In addition to the poor recording of Mrs Y’s wounds and reviews of her care plans, there is also no evidence that the care home recorded Mrs Y’s weight daily, after her GP requested this. The care home did record Mrs Y’s weight but did so much less frequently.
52. Mrs X was concerned that Mrs Y lost significant weight after returning from hospital. She was particularly concerned about a weight measurement which suggested Mrs Y had lost a significant amount of weight in a short period of time.
53. Having considered the available evidence, I am satisfied with the Care Provider’s explanation that one of Mrs Y’s weight measurements was recorded in error. The next time Mrs Y’s weight was measured, it was consistent with other recent measurements. However, there was no evidence care staff corrected the record or took any action after the care recording system raising an alert about the significant apparent weight loss.
54. The records show that Mrs Y did lose some weight after returning from hospital in January 2020 and that, at times, lost her appetite which was made worse while recovering from a COVID-19 infection. During August 2020, Mrs Y’s weight was slowly increasing.

Keeping Mrs Y’s family informed

55. I am satisfied the Care Provider did not keep Mrs Y’s family, including Mrs X, properly informed about her health and medical condition.
56. There is no evidence the care-provider pro-actively informed Mrs Y’s family about her leg wounds, or how these were getting worse. This was at a time during which visits were very limited because of the COVID-19 pandemic and so it would have been even more important for Mrs Y’s family to know what was happening. As detailed above, this is likely because of the poor recording and monitoring of Mrs Y’s wounds.
57. Given the severity of Mrs Y’s condition and that this got much worse very quickly, I am satisfied that this lack of information added to the distress Mrs Y’s children were caused by her sudden hospital admission, so this was fault.
58. The Care Provider also accepted that it failed to send the required notices to Mrs Y’s family after both her falls and therefore failed to comply with its duty of candour. I am also not satisfied that it properly complied with the duty of candour following Mrs Y’s admission to hospital in August 2020. This added to the distress caused to Mrs X and Mrs Y’s other children.

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Agreed action

59. Where someone has died, our view is that it is no longer possible to remedy any personal injustice to that person. Therefore, we do not usually recommend remedies to recognise any harm or distress caused to the person who died.
60. Within one month of my final decision, the Care Provider will:
• apologise to Mrs Y’s family for not properly involving them in planning Mrs Y’s care, for the poor oversight of Mrs Y’s wound care and for not keeping them informed about Mrs Y’s health;
• pay Mrs X £2,250, to be divided between Mrs X and Mrs Y’s other children, to recognise the uncertainty and distress caused by the care provider’s actions; and
• refund to Mrs X’s estate the £3,621.67 in fees she paid for nursing care between June and August 2020.
61. Within three months of my final decision, the Care Provider will:
• review how the care home involves residents and, where appropriate, their families in planning resident’s care. It should ensure that staff involve residents and family members as fully as possible;
• review how the care home notifies residents and family members where it is required to do so under the duty of candour. It should ensure that the relevant people are notified properly and that there are suitable checks to ensure this has been done.
62. I would normally have also made other recommendations for service improvements, such as reviewing wound care training, monitoring and recording. However, these improvements were made following the Care Provider’s own internal investigation and the local council’s safeguarding investigation. It is not necessary for me to repeat those recommendations.
63. Similarly, a CQC inspection from mid-2020 identified issues with staffing levels at the care home. Given the CQC’s remit, it is best placed to consider whether a care home has appropriate staffing resources in place in general terms.

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Final decision

64. I have completed my investigation. There was fault in how the Care Provider planned Mrs Y’s care, monitored her treatment and shared information with her close family. This caused Mrs Y’s family significant uncertainty and distress. The Care Provider agreed to apologise, pay a financial remedy and review its processes.

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Investigator's decision on behalf of the Ombudsman