Summary: Mrs X complained about the care and service she and the late Mr Y received at Scalford Court Nursing Home, arranged by the Council. We found fault in the way the Care Provider dealt with Mrs X and Mr Y, including during his end of life care. This caused significant and undue distress at an already difficult time. The Council has agreed to apologise and take actions to avoid similar problems in future.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complained on behalf of herself and her late husband, Mr Y. She complains about the care and service they received at Scalford Court Nursing Home which was arranged by the Council.
2. Mrs X, who is in her nineties, says she was not allowed to say goodbye to Mr Y, see the room he would have, or read the documents she was required to sign. Staff told her she couldn’t use the toilet during her visits and accused her of eating Mr Y’s food. Three staff members “frogmarched” her “like a criminal” out of the home, under threat of police, although Mr Y wanted her to stay. This was because of something her daughter had said in passing to a staff member. The social worker did help with this, and Mrs X eventually got to see him at 11pm; it was his birthday. She told me it is hard enough seeing your husband suffering and dying without all the harassment which was so unnecessary. It was traumatic for their long marriage to end this way and she will never forgive the Care Provider for this.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
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)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

6. (Local Government Act 1974, section 26A(2), as amended). We consider Mrs X to be suitable to complain on Mr Y's behalf.
7. 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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How I considered this complaint

8. I considered information from the Complainant and from the Council.
9. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Safeguarding

10. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

Fundamental Standards of Care

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.

Care Quality Commission

12. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers which 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.

Continuing Healthcare

13. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
14. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making. The DST makes a recommendation about whether a person is eligible for CHC. The relevant CCG will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

What happened

15. Mrs X and Mr Y had been married over 70 years and lived at home together. Mr Y had various health conditions including dementia and Mrs X was no longer able to look after Mr Y on her own. In March 2021, he moved into Scalford Court Nursing Home (the Care Provider).
16. Mrs X says she was unable to see his room before Mr Y moved in and if she had seen it, she would not have accepted it. She was told it was a good size room with views over the garden, but it was small and looked over a road and a hedge. She did not know this as at first she was not allowed to visit. She also did not get to say goodbye to Mr Y who had to isolate for 14 days. When his isolation ended, she could only visit for 20 minutes once a week, had to wear a face covering and a staff member was always present. No other visitors were allowed to see Mr Y. These restrictions were due to the Care Provider’s COVID-19 related policies.
17. Mr Y resisted going to Scalford Court and on arrival refused care and food. He was aggressive towards the staff. The Care Provider contacted the Council and said it was not meeting his needs and staff were not trained to deal with challenging behaviour. The Council asked the Care Provider to give Mr Y more time to settle in and contacted his GP about his agitation and refusal to eat. Shortly after Mr Y moved to the home, the mental health team (MHT) visited to assess him. They said care workers were not meeting Mr Y’s needs and they felt Mr Y needed to be somewhere more suited to his needs. They were not sure if medication would help with his behaviour. Mr Y was prescribed some medication to calm him.
18. Once Mrs X was able to visit, she was upset to find a staff member had to be present during visits. She contacted the Council who confirmed this was because of COVID-19 restrictions. She also asked the Council about CHC as a paramedic had advised her Mr Y would be eligible. The Council said it did not think Mr Y would be eligible for fast track but would check, and if not, would consider completing a checklist as part of his assessment.
19. Initially, the Care Provider was able to move Mr Y to the visitor room without the need for a hoist, but his mobility worsened quite quickly. Mrs X says he was always saying he wanted to die. In late April, Mrs X spoke to the Council about moving Mr Y because she had found other care homes did not have such restrictive visiting policies and charged considerably less per week. Mr Y was paying £975 per week at Scalford Court. The Council’s records note that Mrs X was clearly distressed during the call and it was evident the situation had really upset her.
20. Mrs X was distressed by the decline in Mr Y’s health and the severely restricted visiting times. In early May, she contacted the Council again. She said he was getting worse and worse, could no longer walk, stand or speak and needed help with feeding. She also complained about the visiting restrictions though she recognised that it would not be fair to move him now. The Council noted that it advised Mrs X that Mr Y was probably not eligible for CHC and it would look into this. When the Council checked with the Care Provider for an update on Mr Y, it said the medication had helped a lot and he was now a lot calmer and compliant with care. It said Mr Y was now independent with eating and drinking. The Care Provider felt it could now manage Mr Y’s needs.
21. In mid May, Mr Y was admitted to hospital. Mrs X says she was told he was dehydrated, refusing food and fluids, had heart and kidney issues, she did not expect him to come out of the hospital. Mrs X asked the Council again about the CHC and it advised the hospital would take the lead on deciding what care he needed. Mr Y was discharged after almost three weeks and now received palliative care. Palliative care is about managing pain and other symptoms when a person has a life limiting illness which cannot be cured. Palliative care is not necessarily end of life care, though it can be. At this point, Mr Y was not considered to be at the end of life. Mrs X asked the Council to complete a care needs assessment. As Mr Y was on palliative care, Mrs X’s visits became much less restricted.
22. Towards the end of June 2021, the Council and the Care Provider discussed the CHC checklist assessment and agreed that, although he was unwell with a suspected urinary tract infection, he did not meet the criteria for CHC.
23. At the beginning of July, Mrs X complained that the Care Provider was not turning Mr Y frequently and he wasn’t eating enough. She was not happy with the visiting policy as other family could not visit him. The Council spoke to the Care Provider who said staff had not witnessed any hallucinations and Mrs X left the room every time they turned Mr Y so she was aware this was being done. Mrs X did not want to complain about the care workers who were “wonderful” and who did a “brilliant job”. The Council noted that staff had legitimate answers to Mrs X’s concerns and this was supported by its last visit. A few days later, the Council visited Mr Y. It noted that Mr Y was always positioned between two and four hourly which was what his care plan required. It noted that Mrs X was visiting every day but the Care Provider did not need to allow this as Mr Y was not thought to be at end of life.
24. On one Sunday in July, Mrs X says she was there from 2:45pm until 10pm and no one came in to check on Mr Y. The records do not confirm this but a few days earlier, Mrs X is recorded as visiting from 3pm to 10pm and there were no checks completed in that time. The Care Provider told the Council that this was not true. Mrs Y’s records made at the time, note that Mr Y faced the wall during this time and could not see the tennis and football. Twice during July, Mr Y had a fall from bed. The Care Provider made sure Mr Y had a bed which could be lowered and a crash mat beside the bed. Mrs X says the bedroom was too small for the crash mat and it presented a trip hazard to her, she was in her nineties, and care workers who had to walk over it. Mrs X has sent me photos of the crash mat and it seems excessively large, extending beyond the foot of the bed by about half the length of the bed. Mrs X complained about the size of the crash mat and that the care workers would not always move it out of the way when she visited. I understand the reason that it extended well beyond the end of the bed, was because it was moved down the bed to allow Mrs X to sit next to the bed at the top end. Crash mats do need to be substantial as they are intended to prevent injury should a person fall from bed. Mrs Y says this meant she was sitting above Mr Y’s head and he could not see her.
25. Mrs X’s relationship with the Care Provider deteriorated over the time Mr Y was in the home. The Care Provider had issues with her using a toilet which was then labelled ‘out of order’ and Mrs X believes this was to prevent her using it. The care Provider denies this. The Care Provider accused Mrs X of eating Mr Y’s food which she denies, aside from a taste of a cake. She said most of the food he ate, was food she brought from home. Staff also accused her of giving Mr Y chocolates which caused him to bleed. She says it was another relative who gave them to him for his birthday and was not aware of any bleeding. Mrs X also went into another resident’s room in response to a call for help because there were no staff around. She complained because Mr Y was not helped to bed until 2:30am and says after this it did not happen again. On another occasion she thought he appeared to have been tranquillised, and on another she complained he didn’t have a call bell. Each time Mrs X was upset with the Care Provider’s approach, she contacted the Council and it tried to resolve the issues. Mrs X mostly said she would sort out the relationship issues direct with the Care Provider and mostly these issues were resolved to some degree.
26. In late August 2021, Mrs X visited with her daughter, Ms Z, who made a comment to a staff member, after leaving the room, about helping Mr Y to die. The Care Provider reported this to the Council and the Police. Mrs X says three senior care workers told her to leave. The Council advised the Care Provider to speak to the Police about whether to refuse a visit from Ms Z and Mrs X. Late that evening, Mrs X telephoned the Council and complained that she had not been allowed to visit Mr Y and had been accused of trying to kill him. She said she didn’t know if he would be alive tomorrow and wanted to visit now. The Council called the home and was told that they couldn’t let Mrs X in on instruction from management who had all gone home. The Council asked to speak to the on call manager. Soon after this, the Care Provider told the Council it had been a misunderstanding and Mrs X could visit now. Mrs X says she was not left alone with Mr Y at any point after this and she felt she was being treated like a criminal.
27. The following day, the Care Provider telephoned the Council. It said Mr Y had only hours, maybe days, left and it did not want Ms Z visiting while the Police investigation was underway. It said it wanted Mrs X to visit only with her son, and a member of staff present. The Council asked what its concern with Mrs X was and it said she had been heard saying “isn’t it time to die” to Mr Y. Mrs X says this is not true. Mrs X and Ms Z had also taken their masks off in the room and rolled up the crash mat. The Council advised the Care Provider should allow the daughter to visit given that Mr Y only had hours left. There is no record of Mrs X’s alleged comment in the Care Provider’s records.
28. Sadly, two days later, Mr Y died. The Care Provider told the Council that Mrs X accused it of killing him as she left the home. Mrs X strongly denies this. The Council ended the safeguarding activity because the concerns did not meet the thresholds for further enquiry. No harm was caused and there was no impact on Mr Y.
29. Two months later, following an alert from Mrs X, CQC submitted concerns to the Council. These included:
• 2 occasions when PA left sitting up until 2am
• Long periods when PA not turned.
• REP banned frm visiting during meals and strict visiting times during palliative care.
• PA had crash mat – trip hazard.
• Strict visiting during EOL care.
30. The Council spoke to the Care Provider and noted that it provided a lot of evidence to refute the allegations. It was unable to substantiate any of the allegations and the crash mat being a trip hazard is unfortunately unavoidable.
31. During my investigation, I considered the Care Provider’s records. The records of repositioning were inconsistent, being recorded on different documents which meant it was difficult to get a clear picture. Observations were supposed to be half hourly and were for the most part, but there were several gaps. For example, I noted gaps of 1 hour 45 minutes, 1 hour 50 minutes, 2 hours 20 minutes and one of 5 hours. In the progress notes on the day of the 5 hour gap, it noted that Mr Y “has had regular repositioning & pad changes throughout the day, no concerns.”. This is not an adequate record. Many of the records were adequate including the care plans. However, the skin integrity care plan dated August 2021, said Mr Y should be repositioned every two hours with the support of two care workers, throughout the day and night. This is not two to four hourly as the Council noted and there is no record of this in the reviews of the care plan since March 2021.

Was there fault which caused injustice?

32. Mr Y had regular and appropriate contact with health professionals throughout his time at Scalford Court. This included the community nursing team, Mr Y’s GP and the mental health team. For the most part, the Care Provider’s records support that it provided adequate care to Mr Y. It was operating under exceptional and difficult circumstances due to the impact of COVID-19. The restrictions on visiting were part of this and I cannot find fault here. However, on the balance of probabilities, the Care Provider’s communication with Mrs X was not helpful throughout Mr Y’s stay.
33. The Council dealt with the safeguarding concerns appropriately and the Care Provider was right to raise its concerns with the Police. However, it then inappropriately restricted Mrs X's visits to Mr Y. With the Council’s intervention, it apologised for this misunderstanding and Mrs X was able to visit. It should not have stopped her from visiting Mr Y. This was fault and caused Mrs X significant and undue stress at a difficult and already stressful time.
34. The Care Provider should also have recognised the gaps in its records, as should the Council, having been alerted to Mr Y not being repositioned enough. There was a five hour gap in which there is no record of Mr Y being repositioned within a few days of the date given by Mrs X. This gap, and others, would have increased the risk to Mr Y.
35. In respect of the crash mat, I cannot say that the Care Provider should have moved it out of the way for Mrs X’s visits. However, Mrs X was in her nineties and Mr Y was dying and there were other risks besides him falling out of bed. Whether there was an alternative or not, the Care Provider should have communicated more effectively with Mrs X about this.
36. Although the Council has agreed to apologise to Mrs X and arrange an apology from the Care Provider, she told me that no apology could ever make up for the state they reduced her to.

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Agreed action

37. 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 actions of the Care Provider, I have made recommendations to the Council.
38. I recommended, to remedy the injustice identified above, the Council:
• Apologise to Mrs X in writing, for the faults identified above and detail what action it has taken or will take, to avoid similar problems in future.
• Ensure the Care Provider apologises to Mrs X in writing for the faults identified above and detail what action it has taken or will take, to avoid similar problems in future.
• Ensure Council staff investigating allegations of poor care and/or record keeping, are clear about how to go about this and do not accept a care provider’s word that all is well.
• Ensure the Care Provider reviews its communication with Mrs X and ensures staff are clear about how to communicate appropriately with residents and their families.
39. The Council has agreed to complete these actions. It should provide us with evidence of this within two months of my final decision.

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Final decision

40. I have completed my investigation and uphold Mrs X’s complaint. In completing the agreed actions, it will remedy the injustice caused as far as possible.

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Investigator's decision on behalf of the Ombudsman