Summary: Mrs Y complains about the care delivered to her husband, Mr Y, while resident at St Thomas Nursing home. We find fault because of poor record keeping and a failure to evidence that staff administered a prescribed toothpaste at the required frequency. We also find the home failed to evidence the outcomes of monthly reviews undertaken regarding Mr Y’s fall risk. We find these failures created distress and uncertainty for Mrs Y which the provider will remedy with a symbolic payment of £500.

The complaint

1. The complainant, Mrs Y, complains about the actions of the care provider. In particular, she complains:
• St Thomas Nursing home (‘the home’) did not properly care for her husband, Mr Y. She raises a range of concerns around personal care, preventing bed falls and the administration of medication. Mrs Y also complains about the loss of Mr Y’s belongings and the lack of care shown by staff in managing residents’ laundry;
• about a general lack of communication by the home including delays in responding to her complaint, delays in communicating the cost of Mr Y’s care and a failure to arrange appropriate transport for Mr Y to attend medical appointments; and
• the home delayed in completing a Continuing Healthcare (CHC) checklist. She also says the home provided inaccurate information which influenced the decision not to award CHC.

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The Ombudsman’s role and powers

2. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)
3. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C) If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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

5. During my investigation I discussed the complaint with Mrs Y by telephone and considered the information she submitted.
6. I made enquiries of the care provider and considered the information it provided alongside any relevant law or guidance which is quoted in this statement.
7. I issued a draft decision statement and invited comments from Mrs Y and the care provider. I considered any comments received before issuing a final decision.
8. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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What I found

What should happen

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC is the statutory regulator of care services. It keeps a register of care providers that meet the fundamental standards of care, inspects care services, and reports its findings. It can also enforce against breaches of fundamental care standards and prosecute offences.
10. Regulation 12 of the Health and Social Care Act 2008 sets out the requirement for care and treatment to be provided in a safe way for service users. This says a registered person must, amongst other requirements, do the following:
• assess the risks to the health and safety of service users receiving the care or treatment;
• plan and deliver care based on risk assessments which balance the needs and safety of service users with their rights and preferences’
• do all that is reasonably practicable to mitigate risks;
• respond appropriately and in good time to people’s changing needs
• administer medicines accurately, in accordance with any prescriber instructions and at suitable times to make sure that people are not placed at risk.
11. The guidance also says, “Risk assessments relating to the health, safety and welfare of people using services must be completed and reviewed regularly by people with the qualifications, skills, competence and experience to do so. Risk assessments should include plans for managing risks”
12. Regulation 9 says assessments should be reviewed regularly and whenever needed, with the involvement of ‘relevant people’.
13. Regulation 17 says providers must, “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided”
14. Providers must ensure that records relating to the care and treatment of its service users are: “… complete, legible, indelible, accurate and up to date, with no undue delays in adding and filing information, as far as is reasonable.

What happened

15. Mr Y was a resident at St Thomas Nursing Home from January 2021 until his death in November 2021. During his time there, Mrs Y raised a range of concerns about the care and support provided to Mr Y as summarised in paragraph one of this statement. Dissatisfied with the care provider’s response to her complaint, Mrs Y approached the LGSCO for an impartial investigation. I will deal with each of her concerns in the section below and present my findings.

Oral care and record keeping

16. We made enquiries of the care provider to obtain Mr Y’s care records for the 11 months he was at the home. This was necessary because Mrs Y alleged the home sometimes falsified her husband’s records. Mrs Y has provided some photographs in support of her claims, which I will deal with in this section.
17. In response to our enquiries the provider explained that it could only locate care records from 7 January to 29 August 2021. Therefore, there were approximately ten weeks of missing records. When we issued a draft decision, the care provider supplied the missing records and expressed its apologies for the previous absence of these documents.
18. One of the photographs taken by Mrs Y on 8 November 2021 shows an oral care chart with missing entries between 1 and 8 November. In another photograph, taken on 11 November, the previously missing entries are complete. Despite the temporary gap in records, the provider says the documents which are now available show that oral care was provided to Mr Y during the week in question.
19. Some of the daily care notes we have received are illegible. Having reviewed the legible notes made on the dates in question, it is evident that staff recorded the provision of oral care except for 4 November when only ‘personal care’ is recorded. On 6 November there is a record of a conversation with Mrs Y about Mr Y’s dirty toothbrush but there is no entry about oral care. There is an illegible handwritten note which possibly refers to personal care.
20. Furthermore, having reviewed a wider range of the records, it is clear most of them do not specify how many times each day staff brushed Mr Y’s teeth. This is relevant because Mr Y had inflamed gums and from August 2021 he required medicated toothpaste. The instructions for the toothpaste prescribed to Mr Y recommends use at least twice a day. The records I have seen make no reference to the frequency of Mr Y’s oral care, nor is it noted on Mr Y’s Medication Administration Charts (MAR) charts.
21. The most recent CQC inspection report for the home from May 2020 says that, “Records demonstrated people received their medicines as prescribed, with the exception of people's prescribed toothpaste. Although prescribed toothpaste was included on people's MAR charts, no records for its administration were in place. The provider could not demonstrate it had been administered in line with the prescriber's advice”.
22. The report also says, “The provider could not demonstrate people's oral health care was always effectively managed in line with best practice guidance. We received feedback from some relatives and professionals that some people's day to day oral health care needed to improve” and, “people's daily records did not specifically detail what oral care support and when, had been provided to people. We raised this with the registered manager who took immediate actions to address this”.
23. In my view, there was an inconsistency between Mr Y’s oral care chart and the records. On the balance of probabilities, I consider that Mrs Y’s photograph evidences a delay between staff delivering oral care and then noting it on the chart. There is also uncertainty between August and November 2021 about whether staff correctly administered Mr Y’s medicated toothpaste.
24. The provider says it has shared feedback with the home and will remind staff to update records accurately and promptly. We welcome this recommendation. However, in my view there is some unremedied injustice to Mrs Y in the form of uncertainty because we cannot tell whether Mr Y received appropriate oral care.

Medication

25. Mrs Y says she found medication on Mr Y’s room floor on four occasions between August and October and has provided some photographs to demonstrate this. Although we know what date the photographs were taken, we do not know how long the tablets were there for. I have reviewed Mr Y’s MAR chart. On one of the dates in question (4 September) the home recorded that it gave paracetamol to Mr Y because he was ‘agitated’. There is nothing notable recorded for the other date (9 August). However, the MAR charts do reveal times when Mr Y refused medication. On these occasions staff recorded that the tablets were destroyed or discarded.
26. In response to Mrs Y’s complaint the home said it discovered Mr Y would sometimes conceal tablets in his mouth instead of swallowing them. The home said it kept this under review once staff became aware, however there is no record of any additional monitoring. With that said, as the photographs show only four occasions when medication was discovered, on balance I am not persuaded this was a regular occurrence which the home failed to manage. This is said in the context of Mr Y having approximately 14 tablets each day.
27. Mrs Y also says the home continued to administer eye drops to Mr Y for several days beyond the prescribed period. In response to the complaint, the provider acknowledged the error and apologised. Mrs Y said she spoke with the hospital who confirmed the extended use of the eye drops would have no adverse effect on Mr Y’s eyesight. I appreciate this incident understandably caused Mrs Y some concern, but I am satisfied the apology already given by the provider is proportionate to the injustice caused.
28. In her complaint Mrs Y also says that Mr Y choked on medication administered on 6 November. I have reviewed the MAR chart for this day which shows that a staff member was unable to administer a lunchtime tablet because Mr Y was sleepy and unable to swallow. However, the staff member had been able to administer a 1ml drop of medication to treat Mr Y’s oral thrush. It was this which Mrs Y says her husband choked on.
29. It is evident from the records that, towards the end of his life, Mr Y struggled to swallow some medication. But it is also evident that the home was aware of this and was mindful when administering Mr Y’s medication. On the day in question Mr Y was able to swallow five of his six doses of prescribed tablets. Four days later the home made a referral to an NHS Speech and Language Therapist (SALT) due to Mr Y’s increasing difficulties with swallowing. On balance, I am not persuaded there is evidence to show that care staff failed to take the necessary precautions, or compelled Mr Y to take medication when it was unsafe to do so.

Nutrition

30. Mrs Y has queried why the records show that Mr Y was not provided with a smoothie drink every day. I have looked at the relevant records to see whether the provision of a daily smoothie was an agreed course of action as part of Mr Y’s care planning. For example, whether fortified drinks were prescribed by the GP or if smoothies were required for the management of Mr Y’s nutrition and weight.
31. The records show the home periodically noted Mr Y’s weight. Between April and May 2021 Mr Y lost 6.6kg and a further 4.35kg between July and August. The home said Mr Y’s nutrition risk was high and that, “at times [Mr Y] will decline meals, at other times he will wait to be assisted and then at others he will sit and eat independently. He is having a fortified diet and fluids and additional snacks when he will agree to this”.
32. In July 2021 the home discussed Mr Y’s nutritional needs with the GP, “he has been discussed with the GP on several occasions and only advise so far is to keep giving additional snacks. No dietician available at present but hopefully weight will start to slowly increase over the next few months”.
33. Another note says, “[Mr Y] eating well but will decline food forcefully if not in the mood. Continue with fortified diet and although [Mr Y] didn’t previously like milky drinks he is now enjoying smoothies at times”.
34. In my view, there is no evidence showing an agreement to provide Mr Y with a daily smoothie, nor was there any recommendation to do so by the GP. However, the available records show that he did receive smoothies on many occasions. I appreciate it was Mrs Y’s preference for Mr Y to have these drinks daily, but in my view, this was only a preference rather than a requirement and I do not find fault on this point.

Bed rails and mitigation of risk

35. The pre-admission assessment completed for Mr Y in December 2020 notes that he is at high risk of falling. The assessor responded ‘no’ when answering the question about whether a ‘bed rail assessment’ is needed. An entry in Mr Y’s care plan on 8 January 2021 says it is necessary “to check [Mr Y] hourly during day and two hourly at night to ensure his safety and comfort”.
36. On 11 January 2021 the care plan was updated to say, “Bed to be at lowest level in case [Mr Y] will fall out of the bed. Any fall should be fully documented and recorded…” The risk assessment completed on this date said, “[Mr Y] is at risk of falling out of bed, chair. He tends to use both hands as support to move himself from bed to chair and [Mr Y] will crawl on the floor. He is provided with crash mat…His right side of the bed is against the wall with bed rail up fitted with cot side bumper. [Mr Y]’s movement is not fully restricted as he can still get up from the other side of the bed. Staff to check [Mr Y] on an hourly basis during the day and two hourly at night and to be recorded. The bed rail should be checked at each intervention and or more frequently as needs increases”.
37. At the end of the document there are nine dates noted. These represent the dates upon which the home undertook a monthly review of Mr Y’s fall risk between February and October 2021.
38. In the first six weeks at the home, the daily care notes show staff found Mr Y on the floor next to his bed on ten occasions. For two of those occasions, staff tried to assist Mr Y, but he declined to return to bed. There are no injuries recorded by the home.
39. Mrs Y also recalls times when she found Mr Y next to his bed. She has provided photographs showing Mr Y lying on the crash mat on four occasions in September and October 2021. Mrs Y questions why the home did not do more sooner, such as installing a second bed rail on the left-hand side of Mr Y’s bed.
40. In response to our enquiries the care provider said that Mr Y was not in receipt of 1:1 care and inevitably there would be times when he was alone in his room. The provider is satisfied the home took appropriate steps to mitigate Mr Y’s risk. The provider says it is possible that, on occasion, Mrs Y may have assumed Mr Y had fallen out of bed, but instead he could have crawled or rolled out to lie on his mat. This possibility is referred to in the February 2021 Deprivation of Liberty Safeguard (DOLS) form and again in an August 2021 ‘Moving and Handling Risk Assessment’ which says that “[Mr Y] tends to crawl on the floor”.
41. The care provider explained that it did not install a second bed rail upon Mr Y’s admission because he had the necessary strength to pull himself up and over the bedrail and could have caused himself injury. The DOLS forms completed upon Mr Y’s admission refers to him being able to self-propel his manual wheelchair; this would suggest Mr Y had an average degree of upper body strength. Therefore, the provider felt that a low-profile bed and crash mat was the best way to reduce the risk of injury.
42. However, on 15 October 2021 the home decided it was necessary to complete a risk assessment for a second bed rail due Mr Y’s increased risk of falling from bed. Two days later the home completed a ‘Best Interest Decision Making Checklist’ which noted that Mr Y is “… quite active within the bed and may fall out” and, “consideration given as to whether [Mr Y] would be at increased risk by trying to climb over the bedrails if elevated. Not felt that this would be the case, but this risk is to be monitored when bedrails are in use”. The decision made on this date was to, “elevate bed rails on both sides of the bed, with bumpers in situ to maintain his safety in his best interests when [Mr Y] is in bed. To maintain [Mr Y’s] safety to the best of our ability”.
43. With that said, in my view, there is fault in the home’s management and recording of Mr Y’s risk. The records show that Mr Y was regularly found to have come out of his bed. Although there is a possibility that Mr Y sometimes crawled onto the crash mattress by choice, I note that Mr Y had limited communication and reduced cognition. He lacked capacity to make decisions about elements of his care and support needs. There is an absence of evidence between January and October 2021 to show how the home monitored this important matter to maintain Mr Y’s safety and comfort.
44. The care provider says it kept this issue under review and appropriately mitigated the risk. Although Mr Y’s care plan lists nine dates upon which reviews were undertaken, there is no detail of those reviews, or the outcomes reached. There is no evidence the home involved Mrs Y in any of its reviews as a ‘relevant person'.
45. I consider this fault created injustice for Mrs Y in the form of uncertainty. This is because we cannot establish whether enough was done by the home to monitor and mitigate Mr Y’s risks before October. I am also mindful that Mrs Y experienced distress each time she found Mr Y out of his bed. For this reason, I the provider will make the symbolic payment at the end of this statement.

Loss of belongings

46. Mrs Y complains that Mr Y’s clothing was sometimes mislaid by the home. She also says that, on occasion, she found clothing belonging to other residents in Mr Y’s room. Mrs Y raised her concerns with staff present at the time.
47. In response to Mrs Y’s complaint and our enquiries, the provider acknowledged there were errors with laundry. This happened when residents’ clothes were not properly labelled. For example, the person who had been in Mr Y’s room previously still had Mr Y’s room number labelled into their clothes. This meant they were wrongly delivered to Mr Y’s room after laundering.
48. Although I appreciate this caused Mrs Y some worry and frustration, I am satisfied the issue was a result of genuine error and was resolved to the best of the home’s ability once identified. Due to the limited level of injustice arising from this, I do not recommend any remedy for this part of the complaint.

Communication and complaint handling

49. The provider apologised for the delays incurred in the handling of Mrs Y’s complaint. The provider also apologised for any confusion caused when responding to Mrs Y’s first complaint. The home says it issued this by post in June 2021. When Mrs Y queried its whereabouts, the home incorrectly said it had sent the response by email. This created some frustration and confusion.
50. Mrs Y also raises concerns about the lack of communication regarding the fees to be paid for Mr Y. She says she was not provided with a written agreement setting out the weekly fees until October 2021, eight months after Mr Y’s admission. Mrs Y also complains about the provider’s failure to communicate with her on occasions when Mr Y needed transport to hospital.
51. I asked the care provider to respond to these claims. It pointed out that these concerns did not form part of Mrs Y’s complaint. I have reviewed the complaint correspondence and I can see that Mrs Y does not make any reference to concerns she had about hospital transport or Mr Y’s fees. The LGSCO only investigates matters which the body in jurisdiction has had the opportunity to consider and respond to following a formal complaint. As this has not yet happened, I have decided not to investigate these points further.

NHS Continuing Healthcare

52. Mrs Y says the home is responsible for delay in the submission of an NHS CHC application. She says the local council did not receive the application until the end of May 2021. The care provider says it is not clear how Mrs Y reached this conclusion because its records show a different date of submission. Mrs Y also says the application contained incorrect information and did not accurately portray Mr Y’s health needs.
53. The email correspondence I have seen between the home and the NHS shows the Clinical Commissioning Group (CCG) made its decision on 17 February 2022, three months after Mr Y’s death. The email expressed apologies for the delay in the process and confirmed the decision was not to award CHC funding. The email however confirmed that Mr Y was eligible for Funded Nursing Care (FNC), and that this would be backdated to 29 April 2021.
54. The care provider says the manager who completed the application for CHC funding is no longer employed by the home and so they cannot provide further comments on the reasons for any wider delay in the application process. However, the provider does say that meetings to discuss Mr Y’s application were sometimes cancelled by the NHS team.
55. My role is to consider the effects of injustice caused by fault in the care provider’s actions. I am not considering the role of the health bodies involved with the CHC assessment and decision. We now know the CCG decided not to award CHC to Mr Y. This was a decision based on multi-disciplinary input and is appealable. As it stands, the decision to refuse CHC has not been subject to a successful appeal. Therefore, even if we found the home had contributed to some delay in the wider process, we could not say this created any injustice for Mr and Mrs Y. If Mrs Y feels the CCG based its decision on wrong information, then this is something she could and should have raised as part of an appeal.

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Agreed action

56. When someone has died, our Remedies Guidance says we will not normally seek a remedy for injustice caused to that person 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 to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment in recognition of that impact whilst they were alive. This is because the person affected cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact on their relative, we may recommend a symbolic payment to them as a remedy for their own distress. With this in mind, we made the following recommendations.
57. Within four weeks of our final decision, the care provider has agreed to:
• apologise and make a symbolic payment of £500 to Mrs Y for the distress and uncertainty caused by the failures identified in this statement; and
58. Within eight weeks of our final decision, the care provider has agreed to:
• share evidence with the LGSCO of the steps it has taken to remind staff that all records are to be updated accurately and promptly; and
• share evidence with the LGSCO of the steps it has taken to improve the provision of oral care, particularly for service users requiring medicated toothpaste.

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Final decision

59. We have completed our investigation with a finding of fault causing injustice for the reasons explained in this statement. The provider has agreed to implement the actions we have recommended, and these are an appropriate remedy for the injustice caused.

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Investigator's decision on behalf of the Ombudsman