Summary: We did not uphold most complaints about Mrs Y’s care between January and the end of October 2020. However, she had significant weight loss with no action taken and this was not in line with guidance on nutritional care. The Council which commissioned the care will apologise and take action described in this statement. We did not uphold complaints about the deprivation of liberty safeguards or safeguarding because the Council followed the appropriate legal process.

The complaint

1. Mrs X complained about her late mother Mrs Y’s care in Hesslewood House Care Home (the Care Home) which is owned by Four Seasons Healthcare Ltd (the Care Provider). East Riding of Yorkshire Council (the Council) commissioned Mrs Y’s care.
2. Mrs X complained:
1. Mrs Y’s continence care was poor and her pads did not get changed often enough
2. Communication was poor during lock-down
3. Mrs Y lost weight and her fluid intake was inadequate
4. Staff at the care home failed to secure healthcare for Mrs Y when she vomited blood and looked unwell during a window visit and when she lost weight
5. Staff at the care home failed to secure healthcare for Mrs Y when she became dehydrated, when she had blood in her stool and they turned away an ambulance Mrs X had called.
6. Staff hit another resident
7. Another resident was violent towards Mrs X
8. Food was poor quality and unappetizing.
3. Mrs X also complained about the Council’s actions. She said:
1. The Council was at fault in using the Deprivation of Liberty (DOLS) process to force her mother to remain in the care home against her wishes.
2. The Council refused to let her be present at any of the DOLS assessments.
3. The Independent Mental Capacity Advocate was not trained appropriately in schizophrenia
4. The application to the Court of Protection was inappropriate
5. The safeguarding enquiry was delayed, inadequate and did not involve her.
4. Mrs X said the alleged failings in her late mother’s care had a negative impact on Mrs Y’s health and caused both of them avoidable distress.

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What I have and have not investigated

5. I have investigated complaints 2a to 2d and complaints 3a to 3e.
6. I have not investigated complaint 2f about staff striking another resident because Mrs X is not a suitable representative for the resident as she is not a relative.
7. Mrs X’s complaint about another resident being violent towards Mrs Y (complaint 2g) happened in 2019 and so is late with no good reason for the delay. I have explained late complaints in paragraph 12.
8. I did not investigate Mrs X’s complaint about poor quality food at the Care Home. I note she has photos of what she considers unappetising and poorly-presented food, but this evidence is not sufficient for me to judge quality. And the Care Home’s records only say what Mrs Y was offered and what she ate. They do not evidence the quality of the food. So there is no way of me resolving this complaint.
9. I have not investigated care after 30 October 2020 because the NHS funded it. We have no power to consider complaints about NHS care. This includes Mrs X’s complaints about the Care Home not securing healthcare when Mrs Y became dehydrated, by turning an ambulance away and when Mrs Y had blood in her stool (complaint 2e). These events took place in November 2020.

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The Ombudsman’s role and powers

10. 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)
11. 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). The Council commissioned Mrs Y’s care in the Care Home under powers and duties in the Care Act 2014. We can investigate the Care Home’s care to Mrs Y. The Council is responsible for any fault we find.
12. 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 council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended) The complaint is about the late Mrs Y’s care from January 2020 to her death in December 2020. Mrs X complained to us in January 2022 which means her complaint is late. However, I have investigated care between January 2020 and the end of October 2020. I took into account that the Council did not issue a final response to the complaint until November 2021 and we expect complainants to use a council’s complaint procedure before we consider a complaint. Mrs X contacted us within two months of receiving that response.
13. We provide a free service, but we must use public money carefully. We may decide not to start an investigation if we do not consider further investigation is practical. (Local Government Act 1974, section 24A(6), as amended)
14. 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)

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How I considered this complaint

15. I considered relevant case records from the Care Provider and Council, their responses to the complaint and information from Mrs X. A colleague discussed the complaint with her.
16. Mrs X, the Council 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

Relevant law and guidance

17. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. When investigating complaints about council-funded care placements, the Ombudsman considers the 2014 Regulations when determining complaints about poor standards of care.
18. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
19. Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
20. Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.
21. The Deprivation of Liberty Safeguards (DOLS) framework protects people who lack capacity to consent to being deprived of their liberty in a care home or hospital and who are not detained under the Mental Health Act 1983. People are instead detained by a ‘standard authorisation.’ The care home or hospital applies to the supervisory body (a team in the local authority) which carries out assessments to decide whether to approve the authorisation.
22. An Independent Mental Capacity Advocate (IMCA) is a legal safeguard for people who lack capacity to make decisions about where they live and serious medical treatment options. An IMCA supports the person and represents them in discussions, provides information to help work out what is in their best interests and presents the person’s views to the decision maker. Section 39 of the Mental Capacity Act 2005 sets out provision for an IMCA to be appointed as part of the DOLS assessment process.
23. If there is a dispute between family members and a council about what is in a person’s best interests, either party may apply to the Court of Protection for a determination. The Court of Protection can make decisions, hearing evidence from both sides, about where the person should live, what care they should receive and contact arrangements.
24. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
25. 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 council/care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
26. Our guidance explained that normal expectations on consultation and communication may not have been feasible or appropriate.

What happened

Background

27. Below is a summary of relevant case records from the Council and Care Home between January and the end of October 2020. I have not referred to every piece of evidence available.
28. Mrs Y had mental health problems and had been living in the Care Home for several years. Her health declined in 2020 when she had a stroke. The Council arranged and funded her care until the end of October 2020. She died at the beginning of December.

The Care Home’s records

29. The Care Home kept daily records of care interventions and care plans describing how to meet Mrs Y’s needs. I have summarised these in paragraphs 30 to 35.
30. On 6 July, Mrs Y complained of chest pain and vomited three times with small pieces coloured brown. The paramedics attended and did not take her to hospital. A senior carer asked about the vomit. The paramedic said it was nothing to worry about and did not look like blood. The paramedics did not take Mrs Y to hospital.
31. The Care Home’s daily records show Mrs Y had admissions to hospital in September for a urine infection and possible stroke. She was taken to hospital in the middle of October as her breathing was irregular. She came back to the Care Home later the same day with antibiotics for a urine infection. In October, the GP thought she may have a cancerous bleed or a bleeding ulcer. The GP did not refer Mrs Y for any specialist investigations.
32. The Care Home’s eating and drinking care plan said Mrs Y needed thickened fluid and pureed food from October following a swallowing assessment while in hospital. The plan said Mrs Y weighed 83 kg in January 2020. Weight charts in September and October said Mrs Y weighed 60 and then 57 kg respectively. The Care Home did not complete the standard malnutrition screening assessment for Mrs Y (called a MUST assessment). The nutritional care plan noted she was getting full fat smoothies and awaiting a dietician’s appointment. There is no record of this taking place.
33. The continence care plan said Mrs Y was to have two hourly checks of her pad and to be washed on each change of pad. I have looked at some of the Care Home’s daily records and these indicate she was checked regularly for continence.
34. The communication records and daily care records indicate Mrs X visited the Care Home almost daily once COVID-19 restrictions were lifted and visits resumed. There are numerous records of discussions between Mrs X and managers and senior care staff. There is no record of updates between care staff and Mrs X between March and June 2020.
35. At the end of October, the NHS updated Mrs Y’s RESPECT form (this stands for recommended summary plan for emergency care and treatment) The form said to focus on symptom control and comfort only. The Care Home’s end of life care plan said Mrs Y was to be kept comfortable and not to push food or fluid, only if she could take it. The plan said Mrs X agreed to this.

The Council’s records

36. The Council issued standard authorisations depriving Mrs Y of her liberty. These were renewed twice during 2020. I have seen the paperwork which was completed in detail, involving an IMCA, doctor and a Best Interests Assessor. Information from Mrs X was included in the assessments.
37. In January 2020, Mrs X asked for her mother to return home to live with her. In February, another relative contacted the Council to raise concerns about Mrs Y going home with Mrs X. The Council allocated Mrs Y’s case to a social worker.
38. The social worker completed a mental capacity assessment in April. The outcome of the MCA was Mrs Y did not have capacity to make decisions about her care or residence. The social worker referred Mrs Y for an IMCA.
39. In May, the Council considered applying to the Court of Protection about the dispute over where Mrs Y should live. In June, there was a Best Interests’ Meeting which Mrs X and professionals attended. Everyone agreed it was in Mrs Y should stay in the Care Home. So court action was not considered necessary as there was no live dispute.
40. In August, the social worker carried out a review of Mrs Y’s care and support plan. Mrs X and Mrs Y’s IMCA attended the review.
41. In September Mrs Y was found unresponsive and was taken into hospital. Mrs X raised concerns. Mrs X took Mrs Y home with her from hospital. The social worker visited Mrs X and Mrs Y the next day and was concerned about Mrs Y’s care needs not being met and a lack of equipment in the home. Mrs X agreed Mrs Y should return to the Care Home and she returned later the same day.
42. Mrs Y had a stroke three days later and went back into hospital. She returned to the Care Home at the end of September. Her condition had declined and her care plans were amended as I have described in the previous section.
43. At the end of October, the NHS began funding Mrs Y’s care.
44. At the start of November, there was a further Best Interests’ meeting including the social worker, family the IMCA and Care Home staff. There was a disagreement about where Mrs Y should live. Mrs X and another relative wanted her to live with them. Other family members wanted her to stay in the Care Home. The Council started proceedings in the Court of Protection. The Court ordered Mrs Y to remain at the Care Home. The NHS Clinical Commissioning Group which had taken over funding was made a party to the proceedings (because it was now funding Mrs Y’s care as she was at or towards the end of her life).
45. Mrs X raised safeguarding concerns in October and November about her mother’s care including about inadequate food and fluid and administration of end-of-life medication. She was saying to many council officers that she wanted Mrs Y to live with her. The Care Home also raised concerns about Mrs X giving her mother too much fluid, closing her mother’s mouth (which Mrs X denies ever doing) and not following guidelines for giving pureed food and thickened fluid. A safeguarding practitioner from the NHS drew up a protection plan containing guidelines for everyone to follow to minimise Mrs Y’s risk of choking.
46. Mrs Y died at the start of December.

The Care Provider’s responses to Mrs X’s complaints

47. Mrs X complained to the Care Provider in March 2021. She also complained to the Council. The Care Provider gave two responses to the complaint under its procedure. I have summarised the key points of the responses below:
• Mrs Y vomited a large amount of brown substance on 6 July and staff called 999. Paramedics were told about the vomit, did their assessment and decided not to take her to hospital. Mrs Y also declined admission to hospital and had capacity to do so
• There was no record of a duodenal ulcer in the past. The GP said at the end of October 2020 that she may have a bleeding ulcer or a cancerous bleed. No further investigations were made by the GP
• There were two hospital admissions in September 2020 – the hospital’s discharge letter for the admission said Mrs Y had urosepsis and urine infections. The hospital tried a feeding tube, but Mrs Y did not tolerate it. The plan was to give her thickened fluids and pureed food.
• The care records indicate staff raised concerns about fluid intake, poor swallowing and breathlessness before the admission and she was seen by the GP earlier in the day. They advised a referral to the Speech and Language Therapist (SALT) and for Mrs Y to remain at the care home.
• There were many records in 2020 showing health concerns were reported and discussed with health professionals including the GP and paramedics and 111.
• She lost weight. Staff completed the malnutrition screening tool incorrectly. She should have been referred to the GP for advice about weight loss. The Care Home has trained staff.
• The nutrition care plan was rewritten in September 2020 due to Mrs Y’s admission to hospital and decline in swallow function after a stroke and following advice from the SALT. Food and fluid charts commenced and a coughing/choking chart was implemented.
• Her decline in eating and drinking was caused by her struggling to swallow. This resulted in limited intake causing dehydration. She was aspirating at times.
• The manager recalled a discussion with Mrs X in January 2020 about continence care. They were sorry for the lack of dignity. The manager agreed to put in place two hourly continence checks.

The Council’s response to the complaints

48. In November 2021, the Council responded to Mrs X’s complaints, apologising for the delay in its response. It did not uphold any of them. I have summarised the main points below:
• There was no delay in the decision about Mrs Y not returning home, aside from an unavoidable delay at the beginning of the first lockdown in March 2020. DOLS assessments took place promptly
• The proper DOLS procedure was followed – assessments took place because of Mrs X’s request for Mrs Y to go home with her, a referral for an IMCA, social care assessment and best interests meetings were all correct actions
• Involvement of the Court was needed because there was a dispute that could not be resolved
• The social worker gave appropriate advice that Mrs X should not take Mrs Y from the Care Home because there was a DOLS standard authorisation and if she did, the police may be called
• Mrs Y had a lot of assessment visits, but they were all necessary
• The IMCA had appropriate training.

Safeguarding

49. The Council opened a safeguarding enquiry about the Care Home’s food and fluid management. This was in response to concerns from Mrs X and concerns from the Care Home about Mrs X’s involvement in supporting her mother to eat and drink. Mrs X said Mrs Y had multiple hospital admissions due to malnutrition and dehydration. The safeguarding enquiry officer looked at the Care Home’s records and concluded they showed Mrs Y was offered food and fluid regularly and the Care Home clearly recorded her intake. The report noted:
1. After her stroke Mrs Y could not state her preferences for food and drink and relied on staff or Mrs X to select for her. This may have accounted for her fluctuating intake.
2. The care plans did not include her likes and dislikes and this was not person-centred and may have affected her intake, for example, if a new member of staff was caring for her
3. There was an incident in November where Mrs X ignored advice from staff by continuing to give Mrs Y fluids and pushing her mouth shut which was a choking risk. The Care Home reported this incident. (Mrs X told me she did not ever push her mother’s mouth shut)
4. There was a dispute in November about fluids. The Care Home acted on medical advice to give fluids only when Mrs Y was responsive. Staff were diligent in escalating health concerns
5. The Care Provider was to make improvements to care plans so they were more person-centered to include information about a person’s food and fluid preferences.
50. The Council’s safeguarding report was available in August 2021. The Council did not give Mrs X any feedback about the report. In March 2022, a manager reviewed the report and made some changes including point (b) in the previous paragraph. A manager shared a copy of the report with Mrs X in April 2022 and apologised for the delay. The manager explained to Mrs X that she had reviewed the enquiry and added her view about the content of the report and outcome.
51. Mrs X was unhappy with the report. She had already contacted us in January 2022 to complain.

Findings

Mrs Y’s continence care was poor and her pads did not get changed often enough

52. The case records and continence care plans I have seen indicate Mrs Y’s pad was checked every two hours following concerns from Mrs X about Mrs Y being wet. I have seen a selection of daily care records indicating Mrs Y received regular continence care. Care was in line with Regulation 9 following Mrs X raising concerns and so there is no fault.

Communication was poor during lock-down

53. I am satisfied the Care Home was in regular contact with Mrs Y from July 2020 and she was visiting her mother. There is no record of any contact between Mrs X and staff during the first lockdown. Under normal circumstances, I might regard this as fault, but this was at the start of the COVID-19 crisis and our guidance accepts that normal consultation and communication was not feasible. So I do not uphold this complaint.

Mrs Y lost weight and her fluid intake was inadequate

54. There is no general requirement for a care home to ensure a resident meets a specific target fluid intake at this is highly variable to the person and their needs may change on a daily basis. I am satisfied the Care Home had appropriate fluid care plans for Mrs Y which reflected the change in her ability to swallow after her hospital admission in September and the plan contained tailored instructions for staff about how to support her to drink. The records indicate Mrs Y achieved a higher intake than staff when supporting her mother. However, this does not mean there was fault by care staff. It may be that Mrs Y was more responsive to her daughter’s attempts at supporting her to drink.
55. I note Mrs Y lost over 20 kg in weight between January and September 2020. There is no evidence staff took timely action in response to this. There is a record suggesting a referral to a dietician but no follow up. The Care Provider has accepted it did not complete screening tools for malnutrition. This was fault and care was not in line with Regulations 14, 12(i) or 9. Urgent referrals should have been made to the dietician to seek specialist advice and these should have been chased up.

Staff at the care home failed to secure healthcare for Mrs Y when she vomited blood and looked unwell during a window visit and when she lost weight

56. I have dealt with the complaint about weight loss in the previous paragraph. The records show staff called paramedics when Mrs Y vomited. The parties dispute whether there was blood in the vomit. The contemporaneous record indicates a member of care staff specifically asked the paramedic about this and was told it was not a concern. I am satisfied care was in line with Regulation 12(i) and there is no fault. It was the Paramedic’s responsibility to decide whether or not to convey Mrs Y to hospital, not the Care Home’s.

The Council was at fault in using the Deprivation of Liberty (DOLS) process to force her mother to remain in the care home against her wishes.

57. There is no fault by the Council. It carried out assessments of Mrs Y’s mental capacity to consent to care and residence. The outcome was she did not have capacity. So it was appropriate to complete the DOLS assessments to ensure Mrs Y’s deprivation was properly authorised. This was in line with the Mental Capacity Act 2005. I accept Mrs X did not agree or like the DOLS because she wanted to take her mother home. But as she was not Mrs Y’s legal representative for health and welfare and Mrs Y lacked mental capacity to decide on her residency, the Council was correct to complete the DOLS process.

The Council refused to let her be present at any of the DOLS assessments.

58. The Council did not have to invite Mrs X to any of the assessments as she was not Mrs Y’s legal representative for welfare matters. Mrs Y had an independent advocate to represent her views and wishes and this was appropriate and in line with Section 39 of the Mental Capacity Act 2005. There is no fault.

The Independent Mental Capacity Advocate was not trained appropriately

59. Mrs X’s complaint is that the advocate was not trained in schizophrenia. Schizophrenia is one of many health conditions a person who requires an IMCA may have and there is no requirement for specific training on this. I do not uphold this complaint.

The application to the Court of Protection was inappropriate

60. Court applications are made when a dispute cannot be resolved. It was appropriate to go to court as Mrs X wanted to take her mother home and other family members and the Council disagreed. The Court of Protection was the correct place to resolve the dispute. So there was no fault.

The safeguarding enquiry was delayed, inadequate and did not involve her.

61. There was no requirement for the Council to involve Mrs Y in the enquiry because she did not have any legal role and Mrs Y had passed away so there were no ongoing safeguarding issues with respect to her care. The safeguarding enquiry took too long. A manager apologised for the delay and Mrs Y subsequently received a copy of the enquiry report and this is an appropriate means of redressing the delay. I accept Mrs X does not agree with the findings, but I am satisfied the Council considered the issues she raised about food and fluid. There was clearly a difference of view about how much food and fluid Mrs Y could tolerate and about the implications of the decline in her health. It was however open to the Council to conclude care was appropriate. I note the manager who reviewed the safeguarding enquiry report made some recommendations to improve care plans to make them more person-centred. This was in line with Section 42 of the Care Act 2014. As Mrs Y had passed, no action was necessary to protect her, however, the recommendations about improvements to care plans will minimise the risk of harm to current and future residents.

Agreed action

62. 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. So, although I found fault with the Care Provider, I have made recommendations to the Council.
63. Within one month of this statement, the Council will:
• Apologise to Mrs X for the avoidable distress caused by poor nutritional care to Mrs Y causing weight loss.
• Obtain from the Care Provider copies of all council-funded residents’ nutrition and hydration care plans and checks to make sure ensures these include monthly reviews of the malnutrition screening tool (‘MUST’).
64. We will require evidence of compliance.

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Final decision

65. We did not uphold most complaints about Mrs Y’s care between January and the end of October 2020. However, she had significant weight loss with no action taken and this was not in line with guidance on nutritional care. The Council which commissioned the care will apologise and take action described in this statement. We did not uphold complaints about the deprivation of liberty safeguards or safeguarding because the Council followed the appropriate legal process.
66. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman