Somerset County Council (21 012 954)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 09 May 2022

The Ombudsman's final decision:

Summary: A Care Provider, acting on behalf of the Council, acknowledged failings in the management of Mr Y’s care before the involvement of this office, but it failed to offer an appropriate remedy for the injustice caused. There is no evidence to show the Council took appropriate action in response to the events or what action it took to ensure safe effective care provision for other residents similarly affected and for those whom it continues to commission placements.

The complaint

  1. Ms X complains a Care Provider, acting on behalf of the Council, failed to offer an appropriate remedy for the acknowledged failings in her late father’s care.

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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 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)
  3. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
  4. 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 have:
  • considered the written complaint and discussed it with Ms X;
  • considered the correspondence between Ms X and the Care Provider and Ms X and the Council;
  • considered relevant legislation;
  • offered Ms X and the Council an opportunity to comment on a draft of this document, and considered the comments made.

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What I found

Relevant legislation

  1. 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.
  2. Regulation 9 Person Centred Care says Care Provider must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate and meets their needs.
  3. Regulation 12 Safe Care & Treatment says people must not be given unsafe care or treatment or be put at risk of harm that could be avoided. Care Providers must assess the risks to a person’s health and safety during any care or treatment and make sure care staff have the qualifications, competence, skills and experience to keep people safe.

Background

  1. This is not meant to be an account of everything that happened. Some of the issues Ms X raises are historical but as the Care Provider has addressed these matters in its complaint response, I refer to them here.
  2. Mr Y was in his eighties and had dementia. He had been resident in Casa-di- Lusso Residential Care Home since 2017. The home is owned and operated by Notaro Care Homes.
  3. Ms X shared power of attorney for Mr Y with her brother.
  4. Ms X says she raised concerns periodically with the care home since 2017. She was always hopeful the issues would be resolved. At one point a new manager was appointed at the care home and Ms X hoped this would bring about improvements.
  5. Ms X raised concerns about medication errors in 2017 and about pressure to administer medication unnecessarily in 2019. She was also concerned that Mr Y had managed to abscond from the home in 2018 and again in 2020. At one point Mr Y had unexplained scratches to both arms. He developed a lesion on his face which over time began to weep and became sore. A hospital appointment was arranged but Mr Y’s family were not told until two hours before the appointment was due to take place. Ms X says she had to travel to the hospital, which is over an hour away, at very short notice.
  6. Ms X says the care home lost personal items belonging to Mr Y, including clothing, teeth and hearing aids. Some were returned and some were not. She says a seat cushion belonging to Mr Y’s chair was lost and has not been found. The chair forms part of three-piece suite Mr Y’s wife has in her lounge at home. On Mr Y’s death the chair was collected but it has been rendered useless.
  7. Ms X says the final straw came when the family discovered nine months after the event that Mr Y had been physically restrained by a carer in 2020, which she describes as assault.
  8. She also claims the care home did not have adequate measures in place to prevent the spread of Covid19.
  9. Sadly, Mr Y passed away from Covid19 on 13 January 2021. I have explained to Ms X that it is not possible to investigate this aspect of her complaint. It would not be possible now to establish the facts, and it is a sad fact that many vulnerable people were affected by the pandemic. It is not within my remit to apportion blame.
  10. Ms X says she has invested a significant amount of time complaining to the Care Provider. She says she has experienced “…personal prejudice because I brought to their attention the continued errors in my late fathers care”.
  11. Ms X submitted formal complaints to the Care Provider in 2019 & 2020. She met with care staff on numerous occasions to discuss her concerns. On the last occasion she met with the company’s quality control manager and the Chief Executive. Ms X was accompanied by a friend. Ms X says the meeting was difficult and the Chief Executive was not accepting of her concerns and suggested he may give Mr Y notice to leave if matters could not be resolved.
  12. I have had sight of the complaint responses from the Care Provider. The first dated 11 November 2021 confirms Mr Y was ‘over restrained’ by a carer and that this was not dealt with appropriately by the manager in post at the time. When the matter came to light months later the staff involved were dismissed and were referred to the Disclosure and Barring Service (DBS) and the Nursing & Midwifery Council (NMC). The Care Provider also confirmed Mr Y had been given another residents medication in error.
  13. The Care Provider wrote to Ms X again on 8 December 2021 to say its insurers had requested it provide her with a more detailed response.
  14. The author of the letter, a quality and compliance manager, explained the arrangements in place for accommodating residents that tested positive for Covid 19, including Mr Y, and said staff wore appropriate protective clothing. There was no evidence to suggest carers had not worn face masks.
  15. The author described the events in which Mr Y was over restrained, that he had wandered into another resident’s room, a carer had been heard shouting at him to leave and had then attempted to push Mr Y from the room, when Mr Y threatened to hit the carer, the carer grabbed Mr Y by the shoulder and right arm, putting his right arm behind his back. A nurse then arrived and calmed the situation. The manager in post at the time failed to follow the correct procedures to deal with the incident and this had only come to light sometime later when a deputy manager raised a grievance about the care home manager. Both managers were dismissed and reported to the NMC and the DBS. The carer resigned and was referred to the DBS.
  16. The author went onto to say that, as a result of its investigation it had found “…practice issues concerning other residents too”. The company said it had reported this to the Care Quality Commission, who advised it to refer it to the Council’s safeguarding team. The author confirmed it had done so, and that all the relatives of residents involved, including Mr Y, were informed.
  17. The author confirmed Mr Y had been given another residents medication in 2017 and there were no records to show the manager in post at the time took corrective action. The records show Mr Y’s GP was informed and that he suffered no ill-effects.
  18. The author said there was no evidence to show Mr Y’s medication had been left in a pharmacy van, however later evidence from the pharmacy shows this did happen, and that it noted the care home had not reported the medication as undelivered. The records show Mr Y was not deprived of the medication as the care home had more than sufficient stock.
  19. The author went on to say it was her belief the care home had never been able to meet Ms X’s expectations, that there had been numerous reviews undertaken by the Council, none of which highlighted concern about the care provided to Mr Y. The author said “...we do not think that we failed…” and that it continued to do its best for residents during a dreadful period.
  20. The author said the company’s insurers were concerned that Ms X had issued threats to cause the company reputational damage through threats and menaces linked with the media before the complaints process was exhausted. She set out the circumstances in which a person could be sued for making false accusations and defamation.

Council involvement

  1. Ms X submitted a complaint to the Council in late December 2019 and met with officers in December 2019.
  2. She received a response on 9 January 2021. I have had sight of this letter. The author, a manager in social care, acknowledged Ms X’s concerns about the care provided to Mr Y and set out an action plan which included:
  • an apology for ‘mistakes made around a meeting requested’;
  • Ms X would receive confirmation of issues discussed;
  • A further meeting would be arranged with an officer from social services and a Community Psychiatric nurse (CPN) to discuss Ms X’s concerns about the care provided to Mr Y, and make a plan to address this;
  • the officer would liaise with the Council’s service improvement team;
  • the officer would liaise with the CPN regarding Mr Y’s medication.
  1. Ms X did not hear back from the Council, so she contacted it again in January 2022. She sent an email to the Council saying she had not received feedback from the officer about the outcome of the agreed action.

Analysis

  1. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them.
  2. People have a right to expect safe, effective, and appropriate care that meets their needs. This is not what happened here.
  3. The events that happened in this case where unacceptable. Whilst the Care Provider acknowledged its failings it failed to acknowledge the gravity of the incidents that occurred. Its complaint response addressed serious failings in a matter-of- fact way with little in the way of empathy and understanding about the impact on Mr Y and Ms X. There can be little doubt that Mr Y suffered stress and distress from unnecessary restraint. Saying it attempted to do its best is woefully inadequate.
  4. Sadly, Mr Y has died, so it is not possible to provide a remedy. Where a person has died we will not normally seek a substantive remedy in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment that would enrich a person’s estate.
  5. However, Ms X has also suffered an injustice. She has suffered stress and distress, not only at the events involving Mr Y but by the way her attempts to raise valid issues were dealt with. Instead of issuing a sincere apology for its failings, the Care Provider issued threats of legal action. This was inappropriate and insensitive and in fact misplaced given the events complained about had been upheld. This added to Ms X’s frustration and sense of injustice.
  6. The Care Provider declared it had uncovered evidence of ‘practice issues’ affecting other residents at the care home. This is a cause for concern and should have alerted the Council to the possibility of institutional abuse. It should have responded swiftly and robustly to ensure the safety and wellbeing of other residents. I have seen no evidence it did so.
  7. I have seen no evidence to show the Council followed up Ms X’s complaints properly. It failed to update her on the outcome of an agreed action plan and failed to monitor the quality of care provided to Mr Y.
  8. To summarise, the Care Provider acknowledged failings in the management of Mr Y’s care before the involvement of this office, but it failed to acknowledge the gravity of its failings and failed to offer an appropriate remedy for the injustice caused. There is no evidence to show what action the Council took in response to the events, or what action it took to ensure safe effective care provision for other residents similarly affected and for those whom it continues to commission placements. 

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Agreed action

  1. The Council should:
  • provide Ms X with a written apology for the failings set out above, and request a senior officer from the Care Provider do the same;
  • pay Ms X £250 to acknowledge her time and trouble pursuing the complaint and a further £500 in acknowledgment of the distress caused by the events set out above;
  • explain what action the Council took in response to the events, and what action it has taken to ensure safe effective care provision to other residents similarly affected and for those whom it commissions placements;
  • request a detailed explanation from the Care Provider explaining what action it has taken to improve the quality of care provided at the care home, and how this is monitored;
  • provide evidence of all the above to this office.

Council’s response to the draft decision

  1. The Council confirmed the draft decision statement has been shared with the Care Provider, Mental Health Social Care Team, Safeguarding Team, and its Quality assurance team.
  2. It has also provided information to satisfy bullet points 3 & 4 of the agreed action set out above.

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Final decision

  1. The Care Provider acknowledged failings in the management of Mr Y’s care before the involvement of this office, but it failed to offer an appropriate remedy for the injustice caused. There is also no evidence to show the Council acted in response to the events.
  2. The recommendations above are a suitable way to settle the complaint.
  3. It is on this basis; the complaint will be closed.
  4. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share a copy of the final decision with CQC.

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Investigator's decision on behalf of the Ombudsman

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