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Medway Council (21 009 724)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 07 Apr 2022

The Ombudsman's final decision:

Summary: Mrs X complains about the care received by her mother during her time in a care home. She says the care home could not manage her mother’s needs, did not keep accurate records, and did not update the family appropriately. She also complains the Council did not involve the family when it made best interest decisions for her mother. We find some fault. We have made recommendations for the Council to remedy the injustice caused.

The complaint

  1. Mrs X complains about the care received by her mother during her time in a care home. Mrs X says the care home was not able to manage her mother’s needs, did not keep accurate records of her mother’s health, did not update the family appropriately, and was falsely advertising as covid free when it was not. She also complains the Council made best interest decisions for her mother with regards to where she will live but did not involve the family in the decision.

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The Ombudsman’s role and powers

  1. 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)
  2. 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
  3. 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)

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How I considered this complaint

  1. I spoke with Mrs X and considered the information she provided.
  2. I made enquiries with the Council and considered the information it provided.
  3. I considered information provided by the clinical commissioning group.
  4. I sent a draft decision to Mrs X and the Council and considered their comments.

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What I found

Legislation and guidance

  1. The Mental Capacity Act 2005 provides a statutory framework for people who lack capacity to make decisions for themselves. It sets out who can take decisions, in what situations, and how they should go about this. The Mental Capacity code of practice provides further guidance on the application of the Act.
  2. The code of practice notes the act places a duty on the decision-maker to consult other people close to a person who lacks capacity, where practical and appropriate, on decisions affecting the person and what might be in the person’s best interest. The decision maker has a duty to take into account the views of the following people, where it is practical and appropriate to do so:
    • anyone the person has previously named as someone they want to be consulted;
    • anyone involved in caring for the person;
    • anyone interested in their welfare (for example, family carers, other close relatives, or an advocate already working with the person);
    • an attorney appointed by the person under a lasting power of attorney; and
    • a deputy appointed for that person by the Court of Protection.
  3. Decision makers must show they have thought carefully about who to speak to. If it is practical and appropriate to speak to the above people, they must do so and must take their views into account. They must be able to explain why they did not speak to a particular person, and it is good practice to have a clear record of their reasons.
  4. In November 2020, the government issued new guidance on visits to residents in care homes during the national lockdown. The guidance set out that all care home residents should be allowed to have visits from family and friends in a COVID secure way, with appropriate social distancing and PPE. The new guidance applied to the period of national restrictions (from 5 November 2020 until, provisionally 2 December 2020) and was aimed at enabling care home providers, families and professionals to balance the well-being benefits of visits against the risk of transmission

What happened

Mental capacity assessment and best interest decisions

  1. Mrs X’s mother, Mrs A, had dementia and was living at home with a package of care. In September 2020, Mrs A, was admitted to hospital. Mrs X had power of attorney for Mrs A’s health and welfare.
  2. The Council received a referral from the hospital for Mrs A to be discharged to a care home for further assessment. The Council contacted Mrs X to discuss the discharge. Mrs X told the Council Mrs A had deteriorated a lot and the family now felt Mrs A could not live on her own. Mrs X said the family agreed for Mrs A to go to a residential care home for further assessments to be completed.
  3. Near the end of September 2020, the Council left Mrs X a voicemail noting Mrs A would be discharged to Care Home 1. Mrs A went to Care Home 1 two days after the voicemail. Mrs X said the Council did not consult them on this placement.
  4. On 3 October 2020, Mrs A was admitted to hospital following a fall at Care Home 1. The Council’s records note Mrs X contacted the Council and asked it not to return Mrs A to Care Home 1 when she was medically fit for discharge. Mrs X asked the Council to involve her in the decision making around Mrs A’s placement.
  5. The Council completed a mental capacity assessment for Mrs A on 13 October 2020. The assessment noted:
    • Mrs A did not have the capacity to make the decision about her discharge plan and destination.
    • It was in Mrs A’s best interest to be discharged to a care home for further assessment to decide what her long term living arrangements should be.
    • Mrs A’s family were happy and agreed for her to go to Care Home 2.
  6. Mrs X said Care Home 2 had been recommended to the family and they were relieved Mrs A would not return to Care Home 1.
  7. On 15 October 2020, Mrs A was discharged to Care Home 2.
  8. In November 2020, the Council completed a care and support needs assessment for Mrs A. The Council spoke with Mrs X as part of the assessment. The assessment noted:
    • Mrs A’s needs had increased significantly due to the worsening of her dementia and confusion.
    • Mrs A was at high risks of falls.
    • Mrs A lacked safety awareness and was at risk of wandering.
    • It was in Mrs A’s best interest to be supported in a 24 hour residential placement.
  9. The Council also completed a mental capacity assessment for Mrs A to consider whether she had capacity to decide on her accommodation and care needs. The Council consulted Mrs X for this assessment. The assessment noted:
    • Mrs A did not have capacity to make decisions about her care and support needs.
    • It was no longer sufficient for Mrs A to be supported at home with a care package and extra care was not an option due to her increased needs.
    • It was in Mrs A’s best interest to be supported in a 24 hour residential placement to ensure her needs are met safely.
  10. In December 2021, the Council reassessed Mrs X’s care and support needs. The assessment noted Mrs A needed more extensive support and so needed a placement in a 24 hour nursing care home. There is no evidence the Council completed a mental capacity assessment or made a best interest decision following the reassessment.
  11. In January 2021, the Council contacted Mrs X to advise Mrs A would be discharged to a nursing home. Mrs X said there was no discussion with the family about the placement. Mrs X said the nursing home was too far from the family and so declined this placement. Following this, the Council contacted Mrs X’s preferred nursing home to try and arrange a placement for Mrs A.
  12. Two days later, the hospital later called Mrs X to advised Mrs A had worsened and that she would be transferred to a hospice while she waited for a nursing home placement.
  13. In response to Mrs X’s complaint, the Council apologised for the way it had told Mrs X it had sourced Care Home 1. The Council also apologised for the distress caused to Mrs X for sourcing an out of area nursing home in January 2021.

Care needs

  1. Mrs A became a permanent resident of Care Home 2 at the end of November 2020. The Council said Care Home 2 did not express any concerns they could not meet Mrs A’s needs at the Council’s rates. Mrs X said the care home had called her family and told them they were unable to care for Mrs A at the Council’s rates.
  2. On 21 December 2020, Care Home 2 gave Mrs X 28 days’ notice of ending of Mrs A’s placement. The care home’s terms and conditions note that where ending of a contract is the only reasonable option after consideration, it will give notice of at least 28 days. Mrs X said the care home had not raised any concerns about not being able to manage Mrs A’s care and support needs before serving the notice.
  3. The Council contacted Care Home 2 to discuss the reasons for the notice. The care home told the Council:
    • It could no longer meet Mrs A’s needs as it was a residential home, and they believe Mrs A needed nursing care.
    • Mrs A was awake most of the night and would wander throughout the night.
    • Mrs A was at very high risk of falls and had two falls since arriving at the care home. It was noted Mrs A had fallen on the morning of 21 December 2020.
    • The care home only had two carers on at night and this was not enough as Mrs A needed constant supervision.
  4. The Council completed a reassessment of Mrs A’s care needs, in consultation with Mrs X. The reassessment noted:
    • Mrs A’s care needs had worsened, and Care Home 2 could not longer meet her needs.
    • Mrs A now needed a placement in a 24 hour nursing care home.
  5. Mrs A’s care records do not suggest there was any decline in Mrs A’s condition on 22 December. The records noted:
    • Mrs A was content throughout the day with no record of any complaints about pain or illness.
    • Carers carried out regular checks throughout the day.
    • Carers offered Mrs A food and fluids throughout the day.
    • Carers provided Mrs A with personal care support in the morning and evening.
  6. The records noted on 23 December:
    • Mrs A was mostly asleep in the morning.
    • Carers provided Mrs A with personal care support in the afternoon.
    • Mrs A was mostly unhappy in the afternoon. The care home completed some medical checks around 3pm.
    • The care home repeated the medical checks around 7pm.
    • Mrs A went to hospital around 9.30pm.
  7. Mrs X said the records contradicted what she was told over the phone by a carer. She said the carer told her Mrs A had been in pain during the night of 22 December and had pain relief in the morning. They also told her Mrs A could not get out of bed and a commode had to be brought to her room on 23 December.
  8. Mrs A’s medical records showed Care Home 2 called a doctor as there was concern Mrs A had been walking about after her fall, but now wanted to stay in bed.
  9. Mrs A was admitted to hospital on 23 December 2020. Mrs X said Mrs A had severe constipation, was very dehydrated, and unable to eat solid foods. Mrs X asks how Mrs A’s care records can show no concerns or deterioration if this was the case.

Falls

  1. In October 2020, Mrs A fell while at Care Home 1. Mrs X said Care Home 1 only told her about the fall the day after.
  2. Mrs A fell twice while at Care Home 2, in November and December 2020. Mrs X said the care home did not tell her about these falls.
  3. Mrs A’s care records noted for the fall in December 2020:
    • The care home had called an ambulance who checked Mrs A over.
    • Mrs A had highlighted she was in pain with her chest, but the paramedics had no cause for concern.
    • The paramedics gave the care home guidance and left Mrs A in their care. The records did not detail what guidance had been provided by the paramedics.
  4. Mrs X said she called Care Home 2 on 22 December. She said Mrs A sounded unwell, which she raised with the care home. Mrs X said the care home told her they would call the doctor if necessary.
  5. In response to Mrs X’s complaint, the Council acknowledged Mrs X had fallen in October 2020. The Council said Care Home 1 contacted Mrs X at 1.45am the next day to tell her Mrs A had fallen. The Council also said Care Home 1 acknowledged it should have told Mrs A’s family of the fall at the time and that it had reviewed its fall policy to ensure better communication with families.
  6. With regards to the falls at Care Home 2, the Council said the care home acknowledged it was their policy to tell family of the incident where possible. The Council said Care Home 2 did not provide any evidence to show it had told Mrs A’s family of the falls.

Invoice

  1. In November 2020, Mrs X received an invoice from Care Home 1. As Mrs A was in an assessment bed, the placement was funded by the clinical commissioning group (CCG). Mrs X took advice from the Council who told her not to pay. Mrs X said the invoice made her very uncomfortable.
  2. Mrs X said her brother received a call from Care Home 2 stating the care home could not keep Mrs A at the home for the rate received from the Council. Mrs X said she told the care home they would pay any money owed once the Council had completed the financial assessment.
  3. Mrs X said she was anxious and told the Council she would pay the invoice received from the care home. The Council told Mrs X not to pay anything until it had completed the financial assessment.
  4. In response to Mrs X’s complaint, the Council explained the invoice was a mistake and the care home accepted it should not have sent the invoice out. The Council noted Mrs X was right not to have paid the invoice.
  5. Mrs X told us she did not believe Care Home 2 had sent the invoice out in error.

Visitation

  1. Face to face visits were restricted due to the COVID-19 pandemic. Care Home 2 had policies detailing the controls on face to face visits. The care home also completed a risk assessment and visiting plan for Mrs A.
  2. In December 2020, Care Home 2 told Mrs X families could only call between 10-11am and 2-3pm. Mrs X said this made it hard for the family to speak with Mrs A. The care home explained this instruction had gone out to all families of the residents and it made this decision so staff could complete their key duties. The care home said it did not restrict its window visits.
  3. Mrs X a window visit arranged with Mrs A did not go ahead in December 2020. She said the care home told her brother when he arrived that Mrs A had been awake for 30 hours and so would not be awake for the window visit. Mrs X said the care home did not contact her brother to cancel the arranged visit before he arrived. Mrs X was also concerned about Mrs A’s behaviour but said the care home staff did not share the concerns.
  4. Mrs A’s care records showed that she had been awake for around 24 hours before the window visit. The records also showed during the day of the window visit, Mrs A was recorded as being asleep several times throughout the day.

COVID-19 status

  1. Mrs X said Care Home 2 advertised itself as COVID-19 free throughout the lockdown.
  2. The hospital tested Mrs X for COVID-19; Mrs A tested positive. Mrs X said the family told the care home of her positive test. However, they continued to advertise as COVID-19 free until mid-January 2021. Mrs X provided a copy of a picture she had taken of the advertisement.
  3. In response to Mrs X’s complaint, the Council explained Care Home had completed monthly PCR tests for Mrs A. They said Mrs A’s results in October, November and December were all negative.
  4. The council confirmed the care home had advertised as being COVID-19 free as none of its residents had tested positive between February and December 2020. The care home confirmed it did take its advertising down but was not sure when it was removed.
  5. The Council told Mrs X it was inappropriate to try and decide exactly when Mrs A contracted COVID-19. This was because it could have happened at any point between Mrs A’s last test in the care home and the test conducted at the hospital.

Analysis

Mental capacity assessments and best interest decisions

  1. There is no evidence the Council completed a mental capacity assessment or made a best interest decision before Mrs A was discharged from hospital in September 2020. This is fault.
  2. The Council should have completed a mental capacity assessment to decide whether Mrs A had capacity to make decisions around her care and support needs and accommodation. This is because mental capacity assessments are decision specific.
  3. If the Council had completed a mental capacity assessment, it is likely it would have decided Mrs A did not have capacity to make this decision. It would therefore have made a best interest decision, in consultation with Mrs X, for Mrs A to be discharged to a residential care home.
  4. We note the Council did speak with Mrs X to discuss the decision for Mrs A to be discharged to a residential care home. Therefore, we do not consider the fault caused any injustice as it is likely it was in Mrs A’s best interest to be placed in a residential care home. Further, there is evidence Mrs X was supportive of the decision.
  5. There is no evidence there was any discussion with Mrs X about what residential care home Mrs A should go to. Given the Council had been in discussion with Mrs X about a residential placement, it would have been good practice for it to have discussed with Mrs X if she had any preference for what care home Mrs A went to. This is fault.
  6. In response to our draft decision, Mrs X told us she tried to contact the social worker after receiving the voicemail. However, she said the social worker was unavailable and she was not able to contact anyone else at the Council. Mrs X said as a result, she was not able to discuss or raise any concerns about the placement.
  7. Therefore, we consider the fault identified caused Mrs X some distress. This is because she lost the opportunity to raise her concerns about the placement with the Council. We acknowledge the Council has apologised for the way it communicated the placement decision with Mrs X. We consider this to be an appropriate remedy in the circumstances.
  8. The Council appropriately completed a mental capacity assessment and best interest decision before Mrs A was discharged to Care Home 2. It also appropriately completed a best interest decision before Mrs A’s placement at Care Home 2 was made permanent.
  9. In January 2021, the Council did contact Mrs X to advised Mrs A would be discharged to a nursing home. Again, there is no evidence the Council had discussed the placement before it sourced a nursing home. For the same reasons outlined in paragraph 62, this is fault.
  10. We consider the fault caused Mrs X some distress as there is clear evidence she disagreed with the placement the Council had sourced. We acknowledge the Council has apologised to Mrs X for the distress caused by sourcing an out of area nursing home.

Care needs

  1. Mrs X says Care Home 2 could not manage her mother’s needs.
  2. The Council completed an assessment of Mrs A’s care and support needs in November 2020. The Council assessed Mrs A’s care and support needs would be best met within a 24 hour residential care home.
  3. Care Home 2 was a 24 hour residential care home. When the Council commissioned the placement, the care home raised no concerns with the Council it could not meet Mrs A’s care and support needs. We also note Mrs X did not raise any concerns about the Care Home’s ability to meet Mrs A’s care and support in October, November, or early December 2020.
  4. We do acknowledge Mrs X said the care home had contacted the family and told them they could not care for Mrs A at the Council’s rates. However, the care home did not tell the Council this. As the Council commissioned the service, if the care home was unable to meet Mrs A’s care and support needs, it is likely they would have contacted the Council to advise this.
  5. On balance, we are satisfied Care Home 2 could manage Mrs A’s care and support needs between October and early December 2020.
  6. We are satisfied it is likely Care Home 2 could not manage Mrs A’s care and support needs from 21 December onwards. This is because the care home had given notice to end the placement as it felt Mrs A needed nursing care and it could not meet Mrs A’s increased needs. Further, the Council had reassessed Mrs A’s care and support needs which found a 24 hour nursing care placement was needed to best meet Mrs A’s needs.
  7. Although Care Home 2 had given notice and could not manage Mrs A’s care and support needs, we are satisfied the Council was not at fault for not immediately moving Mrs A. This is because the Council would need a reasonable amount of time to source an appropriate nursing placement for Mrs A. We also note Mrs A was in hospital from 23 December and did not return to Care Home 2.
  8. Mrs X said Care Home 2 did not keep accurate records of her mother’s health. This was because when she was admitted to hospital, Mrs A had severe constipation, was very dehydrated, and unable to eat solid foods. She said the care home’s records did not reflect this.
  9. Having reviewed the care home’s records, we note the records do not show any concerns about a decline in Mrs A’s health from 21 December. We acknowledge Mrs X told us the records contradict what she was told verbally by staff.
  10. The records do show Mrs A was offered food and fluids, and that she was using the toilet. There is also evidence to show that once Care Home 2 was concerned about Mrs A’s condition, it appropriately called a doctor and for an ambulance.
  11. We recognise the care home would only have noted and assessed Mrs A’s condition based on how she was presenting. This is different to the hospital as they would have completed medical checks on Mrs A. Therefore, while there is a difference to the care home’s records, compared to the hospital records, we do not consider we can say, even on balance, the care home’s records are inaccurate.
  12. However, we are concerned with some aspects of the care home’s record keeping. This is because the records showed paramedics attended and checked Mrs A over in the morning of 21 December. The records also noted guidance was given to the carers. However, the records do not detail exactly what guidance was provided.
  13. The guidance provided by the paramedics should have been accurately recorded in Mrs A’s records. This would then have ensured all carers were aware of the need to follow the guidance. In this case, we cannot properly examine whether the guidance was appropriately followed as we do not know what guidance was given. This is fault.
  14. The fault has caused some uncertainty for Mrs X as she cannot be sure Care Home 2 followed the guidance provided by the paramedics appropriately.
  15. With regards to the notice issued by Care Home 2, we note the terms and conditions do not lay out any requirement for the care home to have first discussed the matter with the resident’s family before serving a notice. Therefore, we cannot find fault as the care home did act in line with the contract when it served the notice.
  16. While we have not found fault, we do acknowledge it was upsetting for Mrs X to receive the notice with no warning.

Falls

  1. The evidence shows Care Home 1 delayed in telling Mrs X of her mother’s fall in October 2020. This was fault, which both the Council and care home has acknowledged.
  2. We consider the fault will have caused Mrs X some distress. The Council notes Care Home 1 reviewed its policy to ensure better communication with families. We consider this was a suitable remedy.
  3. With regards to the falls at Care Home 2, there is no evidence to suggest the care home told Mrs X of the falls at the time they happened. Care Home 2 said it was their policy to tell family of the incident where possible. The care home provided no reasons for why could not tell Mrs X of the falls at the time.
  4. Therefore, the care home should have told Mrs X about Mrs A’s falls. This is fault. We consider the fault identified caused Mrs X distress.

Invoice

  1. Both the Council and Care Home 2 have accepted there was fault in sending the invoice to Mrs X. We accept the Council’s explanation and agree this was fault.
  2. We recognise Mrs X’s view the care home did not send out the invoice in error. However, we do not consider any further investigation into this point will lead to a different outcome. This is because it is unlikely there will be any evidence to support Mrs X’s view it was not a mistake.
  3. We note Mrs X did not pay for the invoice and so did not lose out financially. However, we consider the fault identified caused Mrs X some injustice. This is because she said the invoice and later conversation with the care home made her feel uncomfortable and caused her some anxiety.

Visitation

  1. The evidence shows Care Home 2 acted in line with the government guidance in place at the time around visitation and communication. The care home appropriately completed a risk assessment and visiting plan for Mrs A.
  2. We cannot criticise the care home’s decision as it was a decision it was entitled to make after properly considering how it could safely manage visits to residents.
  3. Mrs X said a window visit did not go ahead because Mrs A was asleep. The care records do support that Mrs A was asleep during the late morning and afternoon on the day of the scheduled visit. Mrs X felt the care home should have contacted to cancel given they were told Mrs A had been awake for 30 hours before the scheduled visit.
  4. The care records show Mrs A was awake for around 24 hours before the scheduled window visit. While acknowledge Mrs X’s view Care Home 2 should have cancelled the visit. However, we do not consider this was a decision open to the care home to make at short notice. Further, we do not consider the care home staff would have been able to predict whether Mrs A would have been awake for the visit or not.

COVID-19 status

  1. There is evidence Care Home 2 regularly tested Mrs A for COVID-19. Mrs A’s test results for October, November, and December 2020 were negative.
  2. We agree with the Council’s view that it is inappropriate to try and speculate exactly when Mrs A caught COVID-19 as it could have happened any time between her last test in the care home and the test in the hospital.
  3. Mrs X said Care Home 2 had advertised itself as COVID-19 free even after she had told it of Mrs A’s positive test. The care home was unable to say exactly when it removed its advertising, but Mrs X has a picture of the advertising as late as mid-January.
  4. We do not consider we can comment on whether it was fault of the care home to have advertised its COVID-19 status between February 2020 and January 2021. However, we take the view it was inappropriate for the care home to have continued to advertise as COVID-19 free after Mrs X notified it of Mrs A’s positive test.

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Agreed action

  1. To remedy the injustice caused by the faults identified, the Council has agreed to complete the following:
    • Apologise to Mrs X for the distress, anxiety, and uncertainty caused by the faults identified.
    • Pay Mrs X £300 to recognise the distress, anxiety, and uncertainty caused by the faults identified.
  2. The Council should complete the above within four weeks of the final decision.

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Final decision

  1. We find some fault with the Council’s actions. The Council has accepted our recommendations. Therefore, we have completed our investigation.

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Investigator's decision on behalf of the Ombudsman

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