Summary: Mr Y complained that his father was assaulted by a carer and that the organisations did not do enough to safeguard him. We did not find fault with the Council, the care agency or the care home in relation to investigations and safeguarding enquiries they undertook. We found there was fault by the Council in relation to the time it took to complete a care needs assessment, but the Council’s actions remedied any injustice. We did not find fault with the care provided by the Home or the Council.

The complaint

1. Mr X complains about Plymouth City Council (the Council), St Anne's Residential Home (the Home) and Devoncare. In particular he complains about the care provided to his father, Mr Y, between June and August 2021. His concerns include that:
• Mr Y was placed and kept in the Home against his wishes;
• an agency worker assaulted Mr Y at the Home;
• the Council’s safeguarding social workers failed to keep Mr Y safe, despite Mr X raising concerns about the Home’s care many times;
• the Home took Mr Y’s phone away to stop him speaking with Mr X;
• the Home “drugged” Mr Y to keep him from talking;
• the Home did not give Mr Y a Covid-19 vaccine, despite telling Mr X they had.
2. Mr X says if his father had been properly safeguarded and moved from the Home, he would not have caught Covid-19. He considers the Home and the Council’s actions led to Mr Y’s death. Mr X says these events have also affected his own mental health and he needed medication prescribing to help him cope.
3. Mr X wants acknowledgement of the faults and for the organisations to take responsibility for their failings. He would like to see improvements made so others are not affected in the same way and apologise to him for the distress this has caused.

Back to top

The Ombudsmen’s role and powers

4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
5. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

Back to top

How I considered this complaint

7. I have considered information provided by Mr X. I made enquiries to the organisations and considered the responses and information they provided, including relevant health and social care records. Mr X and the organisations had an opportunity to comment on a draft decision statement. I have considered these comments.
8. The Council delegated some safeguarding functions to Livewell Southwest in relation to the issues complained about in this case. However, the Council retains ultimate responsibility for safeguarding and therefore in this statement any findings in relation to safeguarding are against the Council.

Back to top

What I found

Brief background

9. Following a hospital admission in January 2021, Mr Y received a package of care in his own home. Carers called four times a day.
10. In May 2021 Mr Y was admitted to hospital with a chest infection. He was discharged in June 2021 to the Home.
11. The Council allocated a social worker to Mr Y on 23 June 2021 to complete a care needs assessment. The social worker met with Mr Y a couple of days later and noted Mr Y was “unsettled”. The CCG agreed to fund an additional 1:1 support through an external agency (Devoncare).
12. In July 2021 the Home raised a safeguarding alert against the Devoncare staff member providing the 1:1 support to Mr Y about a possible assault on him. The Home also contacted the police and the Care Quality Commission (CQC).
13. The Council started to look for another placement for Mr Y, but his social worker left. Mr Y’s case was reallocated a month later.
14. On 22 July the social worker and police visited Mr Y to discuss the safeguarding incident. The police did not feel they could get reliable or enough information to take matters further.
15. On 21 August Mr Y tested positive for Covid-19. His condition declined and he needed to go into hospital a couple of days later. Mr Y died on 28 August 2021.

Relevant administrative and legal information

Hospital discharge

16. Government guidance called “Covid-19 Hospital Discharge Service Requirements” published in March 2020 and updated in September 2020 was in place at the time of Mr Y’s hospital discharge. It said hospitals must discharge all patients as soon as they are clinically safe to do so and a discharge to assess model was introduced across England.
17. The Department of Health provided funding to cover the cost of care for up to six weeks while a care assessment was carried out to decide the person’s long-term needs.

Care needs assessment

18. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
19. An assessment should be carried out over an appropriate and reasonable timescale taking into account the urgency of needs and a consideration of any fluctuation in those needs. Councils should let the individual know of the proposed timescale for when their assessment will be conducted and keep the person informed throughout the assessment process.

Mental Capacity Act

20. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
21. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.

Managing medicines in care homes

22. The National Institute for Health and Care Excellence (NICE) published guidance Managing medicines in care homes (SC1) in 2014. This sets out an expectation that care homes ensure medicines are listed accurately and that health and social care practitioners ensure records about medicines are accurate and up-to-date. This includes making a clear record of all medicines given to residents.

Analysis

Placement at the Home

23. Mr X complains that his father was placed in the Home and kept there against his wishes. Mr X says if his father had been moved, he would not have caught Covid-19 and would not have died as soon as he did.
24. Mr Y’s placement at the Home was a discharge to assess placement. This was to allow discharge from hospital while assessments could be completed to establish how best to meet Mr Y’s needs. He previously had a care package in place but there were documented issues with the care agency and Mr Y’s ability to manage in his own home. Following his hospital admission Mr Y’s needs had changed. It was therefore right for the Council to reassess Mr Y’s care needs once he was medically fit to leave hospital. At the time national discharge to assess guidance was in place to reduce the time patients were in hospital.
25. The records show Mr X wanted his father to live with him but agreed to a short‑term placement at a care home so Mr Y’s needs could be assessed. The Council identified the Home as a suitable placement. This was in line with discharge to assess guidance. I have seen no fault by the Council in placing Mr Y in the Home.
26. The records show the Council started Mr Y’s care needs assessment just over a week after his placement started. This established Mr Y had significant care needs. The social worker completed a mental capacity assessment for Mr Y and concluded he lacked capacity to understand decisions around his care needs. and a Best Interests decision would be needed.
27. On 10 July the Home told the Council it could not manage to care for Mr Y without the extra 1:1 support, which was due to end. The Council liaised with the local CCG and funding for 1:1 support to continue was agreed. The records show the Council also began to look for alternative accommodation that could meet Mr Y’s longer term needs.
28. Mr Y’s placement was meant to be short-term to allow assessment of his needs and make arrangements for his future care. This included finding an alternative care home. When Mr Y’s social worker left, records show the Council provided cover with duty social workers and followed up on a referral Mr Y needed from the GP to older people’s mental health services. However, there was a short period of inactivity progressing Mr Y’s care planning until after it allocated a new social worker. Mr Y was readmitted to hospital before the new social worker was able to visit and finalise his care arrangements.
29. Given Mr Y’s increased needs/1:1 care, short-term placement and safeguarding concerns, the Council should have reallocated a social worker to Mr Y as a matter of urgency. I consider a delay of a month to be fault. The Council has acknowledged this via Livewell Southwest’s complaint response and apologised. The need to reallocate a social worker without delay was also raised with senior management.
30. There was some delay, but it is difficult to say whether the Council would have identified and arranged a suitable placement for Mr Y before he caught Covid-19. The records show Mr Y’s needs had increased significantly and that a return home was not a realistic option. Although the needs assessment was not completed, the Council and the Home ensured Mr Y’s care needs were being met at the Home, through regular review and additional 1:1 care support. I consider this to be an appropriate and proportionate response to the level of delay experienced.
31. Mr Y’s risk of being infected with Covid-19 at any other care placement would have been similar. I cannot therefore link the fault to Mr Y’s Covid-19 infection and hospital admission.
32. The Council has confirmed to the Ombudsmen that although Mr Y’s placement was longer than planned, it did not charge Mr Y or his estate for his care or the placement. I am satisfied that any potential injustice as a result of the fault identified has been addressed.

Incident with Devoncare staff

33. Mr X complains that his father was assaulted. He says no one will admit what happened or the effect it had on his father.
34. The carer provided a statement about the incident. She stated that while she was caring for Mr Y he had moved to sit on the edge of a wheelchair. The carer stated she was concerned he would fall so tried to stop him falling and help him into another chair in his room. The carer stated Mr Y then started shouting for help because he wanted to stay in the wheelchair.
35. The Home’s records note one if its carers heard Mr Y shout for help and they entered the room. The carer said they saw the Devoncare carer with her arm across Mr Y’s chest stopping him from standing up and noted she told them that Mr Y would not sit down. The records note some bruising to Mr Y’s chest. They however also note this was because Mr Y’s skin integrity was so poor suitable moving and handling could have caused the bruising.
36. Mr Y’s care records and the safeguarding records show the Home staff and the Council tried to discuss the incident with Mr Y. Unfortunately Mr Y could not say what had happened because they recorded he lacked mental capacity and could not recall the incident.
37. The Home contacted Mr X the same day to tell him about the incident and invited him to visit his father the following day. Unfortunately a Covid-19 outbreak at the Home meant the visit had to be postponed. The records show the Home tried to speak with Mr X after this but he said he did not wish to speak with them. It also recorded that Mr X terminated calls from the Home on several occasions.
38. Records also show the Council kept Mr X informed about its safeguarding enquiries. The Council asked Mr X to visit the Home with its social workers to see if he could help find out any further views from Mr Y about the incident. Unfortunately Mr Y then contracted Covid-19 and this visit could not go ahead.
39. In terms of the incident, the police, the CQC and the safeguarding team all looked into this. The police did not take matters further because of insufficient evidence. The outcome from the safeguarding alert was inconclusive, largely because Mr Y could not provide information about the incident and there were no witnesses to the actual incident. The records show Home staff entered the room after they heard shouting.
40. It is clear from the carer’s statement that she felt she was trying to prevent Mr Y from suffering serious harm. While it is understandable Mr X disagrees with this version of events, the incident was largely unwitnessed and there is no other information to corroborate exactly what happened. Having carefully considered all the information available, I do not consider there is evidence to say, even on the balance of probabilities, the carer assaulted Mr Y or intended to cause him harm. I am therefore unable to find fault in this regard.
41. I have seen clear evidence the Home and the Council have been open with Mr X about the incident and kept him informed about their investigations and outcomes. The Home’s records show Mr X told its staff he did not wish to speak with them shortly after the incident. Due to the visiting restrictions in place because of Covid‑19, he was also unable to see his father. I recognise this must have been difficult and contributed to his feeling that he was not being told everything that had happened. However, the records demonstrate there was regular contact and provision of information. I have therefore not found fault by the Council or the Home about this.

Mr Y’s safety at the Home

42. Mr X complains the Council failed to keep his father safe, despite raising concerns about the Home’s care. Mr X also considers the Home gave his father medication to make him sleep which he considers was an attempt to prevent Mr Y from talking about what had happened to him.
43. The Home sent a safeguarding referral to the Council in July 2021 about the incident with the Carer, as detailed above. The records show the Council and the Home acted together to safeguard Mr Y after the incident with the carer. The carer was removed from the Home and from caring for Mr Y with immediate effect. The Council arranged for replacement 1:1 carers to look after Mr Y. As the carer was from an external agency and not part of the Home, this removed any possible risk to Mr Y’s safety from abuse by that carer.
44. The records show the Council investigated the allegations by interviewing or getting statements from everyone involved and took time to speak with Mr Y with staff from the Home. The records show the social worker considered Mr Y’s mental capacity and asked questions to establish if he could understand the issues they were discussing. Unfortunately Mr Y lacked mental capacity and the Council could not get any further information from him. As noted previously, it had planned to revisit Mr Y with Mr X, but this was not possible. The investigation was hampered by Covid‑19 restrictions at the Home, but despite this, the Council progressed its investigations in a timely manner. I am satisfied the Council and the Home acted in accordance with the local safeguarding policy and the Care Act in ensuring Mr Y’s immediate and ongoing safety following the incident. I therefore do not find fault by the Council about its safeguarding actions.
45. Mr X also reported concerns to the Council in July and August 2021. In addition to the alleged assault, Mr X raised concerns that the Home had medicated his father to make him sleep. This was because he had visited his father and he had slept all the time he was there.
46. The Home’s daily records and those kept by the 1:1 carer were completed regularly throughout each day. These provide a good picture of Mr Y’s care and how he was feeling. The Home also completed Mr Y’s medication records daily. This is in line with NICE guidance on managing medicines in care homes.
47. There is no indication from the Home’s records to support it gave Mr Y medication to make him sleep. He had several medications prescribed by his doctor, some which could cause drowsiness as a side effect, but the records show the Home gave these to Mr Y in line with the prescribed dosages.
48. The daily records show that Mr Y was awake, mobile and eating food in the week before Mr X’s visit. The Home did not note any concerns. However the records show Mr Y was sick the day before. He had been vomiting and staff recorded he was feeling sleepy and confused and was mostly cared for in bed. On the day Mr X visited the records do show Mr Y slept most of the day. The following day he tested positive for Covid-19, but it is noted he was awake and was eating and drinking.
49. I do not consider there is evidence to support the Home used medication to make him sleepy or that it was trying to stop him talking to Mr X during the visit. There is evidence to show Mr Y was feeling unwell from the day before Mr X visited and this made him sleepier than normal. It was unfortunate Mr Y slept most of the day that Mr X visited and I understand this must have been difficult for him to witness. However, there is no evidence to support the Home overmedicated Mr Y or that he was sleepy because of anything the Home did in its provision of care to him. I have therefore found no fault by the Home in this regard.

Mobile phone

50. Mr X complained the Home took Mr Y’s phone to stop him from speaking to Mr X. The Home said Mr Y often lost his phone and would leave it in different locations. However, it said Mr X could contact the Home at any time and it would have facilitated a call.
51. Mr Y’s care assessment completed in June 2021 supports the Home’s response. It notes Mr Y has a mobile phone but often misplaces it. The care plan also notes Mr Y often experienced high levels of confusion and that he would be unable to telephone his family independently.
52. The Home’s complaint response explained that Mr X could have called the Home directly if he had problems contacting Mr Y’s mobile phone. The records also show the Home called Mr X to provide information about Mr Y, but it was not always able to speak to him as he had switched his phone off.
53. I have seen no evidence to support the Home took Mr Y’s mobile phone off him to prevent Mr Y from speaking to him. The records show the Home tried to engage with Mr X, but this was not always possible. Mr X also had the option of speaking directly with the Home if he could not reach Mr Y on his mobile phone. I have not found fault by the Home.

Covid-19 vaccine

54. Mr X complains the Home did not give his father a Covid-19 vaccine. He says this was despite the Home telling him Mr Y had received the vaccine.
55. The complaint response explained that Covid-19 vaccinations at the Home had been done before Mr Y’s admission. Mr Y had therefore not received a vaccination while he was at the Home.
56. Mr Y’s placement was a temporary discharge to assess placement. The vaccine roll-out in England for Mr Y’s age group started in December 2020 some months before his hospital admission and placement at the Home. Care homes were among the early groups vaccinated and this took place for residents at the Home before Mr Y was placed there.
57. I have seen no record of a conversation between the Home and Mr X about whether Mr Y had been vaccinated and the Home disputes it said Mr Y had received a vaccination.
58. While Mr X considers the Home staff told him his father had been vaccinated at the Home, I have not seen any evidence to corroborate this. This does not mean a discussion did not take place, but there are differing accounts and no evidence to support either view. I therefore have not found fault by the Home.

Back to top

Final decision

59. I have found fault by the Council’s delay in completing a care needs assessment, but this did not lead to the claimed injustice. I have not found fault by the Home, Devoncare or the Council in relation to the alleged assault of Mr Y or in the care provided at the Home.
60. I have therefore completed my investigation.

Back to top

Investigator's decision on behalf of the Ombudsman