Summary: Ms C complains the Care Provider acting on behalf of the Council failed to provide acceptable care to her late grandfather. The Care Provider is at fault for failing to properly record medication, nutrition, and wound interventions. Care staff did not always act professionally or adequately support Mr D when he was vulnerable. To remedy the complaint the Council has agreed to ensure the Care Provider makes procedural changes, provide staff training, and pay Ms C £500 to acknowledge her avoidable time, trouble, distress, and uncertainty.

The complaint

1. The complainant, who I call Ms C, complains about services provided to her late grandfather, who I call Mr D. Ms C complains about the care commissioned by the Council from St Benedict’s Nursing Home Limited, the “Care Provider”.
2. Ms C complains the Care Provider:
1. failed to provide acceptable care to Mr D;
2. misadvised the family about visiting arrangements for the first 10 days of Mr D’s stay which resulted in him receiving no visitors for the first nine days of his stay;
3. had poor cleaning standards;
4. failed to support Mr D with dignity and respect;
5. failed to provide acceptable medication and nutrition;
6. mismanaged his personal items;
7. failed to unpack his personal items;
8. failed to provide correct information to family members;
9. had unprofessional care staff;
10. failed to respond to the complaint properly.
3. Ms C says the Care Provider’s failures have caused her and her family anger, distress and upset the care Mr D received was inadequate.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
7. 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”.
8. We cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
9. 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

10. I spoke with Ms C and considered information she provided. I made enquiries of the Council and asked it several questions. I considered:-
• care records, care plans, complaint correspondence, medication charts and nutrition plans;
• Council’s response to my enquiries;
• The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences. I have used the fundamental standards as a benchmark for considering this complaint.
11. Ms C, 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

Background information

12. Mr D went into the care home following a stay in hospital. When Mr D left hospital he was unwell. Mr D died within 18 days of entering the care home.

What should have happened

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
14. Regulation 10 says care providers must make sure they provide care and treatment in a way that always ensures people's dignity and treats them with respect.
15. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care Providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
16. Regulation 14 says care providers must meet service user’s nutritional and hydration needs. The associated guidance says care providers,
17. “must include people's nutrition and hydration needs when they make an initial assessment of their care, treatment, and support needs and in the ongoing review of these. The assessment and review should include risks related to people's nutritional and hydration needs. Providers should have a food and drink strategy that addresses the nutritional needs of people using the service.”
18. Regulation 15 says premises where care and treatment are delivered are clean, suitable for the intended purpose, maintained and where required, appropriately located, and that the equipment that is used to deliver care and treatment is clean, suitable for the intended purpose, maintained, stored securely, and used properly.
19. Regulation 16 says all complaints must be investigated thoroughly and any necessary action taken where failures have been identified.
20. Regulation 17 says Care Providers should “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.”
21. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to including respect for private and family life. The Act requires all local authorities - and other bodies carrying out public functions to respect and protect individuals’ rights.
22. Guidance on admission and care of residents in a care home during COVID-19 updated on 20 January 2022 says residents in isolation should have visits from essential care givers.

What happened

23. Mr D entered the care home on 9 February 2022. Due to COVID-19 restrictions the Care Provider said Mr D could not have any visitors for the first 10 days of his stay. Mr D’s family provided his personal belongings and labelled clothing so that Mr D could be as comfortable as possible.
24. On 18 February Mr D needed end of life care and the Care Provider agreed family visits. When Ms C entered Mr D’s room she found his belongings unpacked, a blood stain and orange juice on the wall, a cracked sink and dirty toilet. She took pictures of this. Ms C also found the hot water was not working, the bedding had holes, and none of the washed clothes in Mr D’s room belonged to him.
25. Ms C says the attitude of one worker X was rude and lacked empathy. On one occasion X was insensitive over the phone and another focused on funding rather than Mr D’s needs and the potential to return home to die. Ms C says X also failed to initiate free health care for Mr D and overheard X making insensitive comments about another individual.
26. Ms C says she witnessed care staff “frog marching” Mr D to the toilet and could hear him saying he wasn’t yet finished to waiting carers. She also says care staff did not provide Mr D with pain relieving medication saying “it was all in his head” when it was clear he was in pain. Ms C also says staff often called Mr D by the wrong name.
27. Ms C noted a sore on Mr D’s arm and says it was covered with a dirty brown plaster. Ms C says care staff only changed the plaster after she asked them. Ms C says Mr D also had bed sores. The Care Provider has no record or knowledge about the bed sores.
28. Ms C says following Mr D’s death care staff did not pack his belongings properly. There were missing clothes, a missing shaver charger and clothing that did not belong to Mr D in his room. The Care Provider then sent a condolence card with the wrong name.
29. The Care Provider responded to Ms C’s complaint. As part of its investigation it listened to phone recordings, watched CCTV footage of communal areas, and took witness statements. The Care Provider said:-
• it followed government guidance and told Ms C that a nominated person could visit, or if applicable it would arrange end of life care visits. It also referred to a 10 day isolation period but said family could visit if Mr D became distressed. It said the care home provided daily updates to the family;
• accepted there were issues with the room including the lack of hot water (which it was unaware of), lack of pictures, and the condition of bedrail bumpers. It said on inspection of the room there was a sealed crack in the basin and a cobweb on the extractor, but the room was up to the Council’s standards;
• accepted X had a difficult conversation with Ms C and that some of the conversation was around funding, but this was because of the concerns X had about Mr D returning home. There is no comment about whether the language used by X was acceptable during another telephone conversation; but does now accept X used inappropriate language in a communal area which it addressed with X;
• did not accept that carers frog marched Mr D to the toilet but said carers were properly supporting him to access the toilet;
• disputed that Mr D had any bed sores and said there was one wound which carers treated using a wound plan, the brown colour coming from the medication used;
• offered to buy a replacement battery charger and apologised for the wrong name in the sympathy card.
30. It agreed to remind staff to report repairs at daily meetings, review bedroom audits to include areas for repairs and cleaning. It would also now encourage any prospective residents and their families to visit the care home before entering.

Was there fault causing injustice?

a) The Care Provider failed to provide acceptable care to Mr D, in particular support Mr D with his medication and nutrition

31. There is no clear correlation between changes in the medication administration charts and advice from medical professionals. This is fault and a potential breach of Regulations 12 and 17.
32. There is evidence of one wound which the Care Provider assessed on 10 February. There is however no treatment plan or evidence within the daily records of how care staff supported Mr D with this wound. This is fault and a potential breach of Regulations 12 and 17.
33. Ms C complains Mr D did not receive pain relief when needed. There are records that Mr D did receive some pain relief, but this was not regularly nor are there any records to suggest care staff offered Mr D pain relief medication on other occasions. I consider on balance it is more likely than not there was at least one time when Mr D was in pain and did not receive pain relief. This is when Ms C was with Mr D and care staff refused to give pain relief. This is fault and a potential breach of Regulation 12.
34. Although the Care Provider recorded Mr D’s daily food and fluid intake, it did not produce a nutritional care plan with recommended consumption levels and what action it should take should Mr D not reach these levels. This is fault and a potential breach of Regulations 12 and 14.
35. Because of these failures there is at least one occasion Mr D was in unnecessary pain and there is uncertainty about whether the Care Provider could have done more to promote Mr D’s food and fluid intake. Ms C has the uncertainty and distress of not knowing how often Mr D was needlessly in pain or could have had more support with his nutrition and adequately cared for.

b) The Care Provider misadvised the family about visiting arrangements for the first 10 days of Mr D’s stay which resulted in him receiving no visitors for the first nine days of his stay.

36. The Care Provider did not properly respond to this part of Ms C’s complaint neither has it properly explained its visiting policy at the time. The guidance at the time was that a nominated person should have been able to visit Mr D in the first 10 days of his stay. The Care Provider should have clearly communicated this to Mr D’s family. The failure to do so is fault and a potential breach of Mr D’s right to family life.
37. Because of the Care Provider’s actions Mr D missed visits when he was at his most vulnerable, both declining in his health and moving from hospital into an unknown care home. The restriction also affected family who could not help Mr D to settle in, make his room comfortable or indeed decide to look at an alternative care home. Family were reliant on care staff updates rather than actual visits which had greater relevance as Mr D soon needed end of life care.

c) The Care Provider had poor cleaning standards, failed to support Mr D with dignity and respect; mismanaged his personal items and failed to unpack his personal items

38. The Care Provider has cleaning records for Mr D’s room. However Ms C’s pictures of the room and the Care Provider’s acceptance of some of the issues (hot water and cracked sink) is evidence that on balance Mr D’s room was not at an appropriate standard, and there is a potential breach of Regulation 15.
39. The Care Provider is also at fault for failing to unpack Mr D’s personal items and properly manage his personal items such as his clothes during his stay or when packing after his death. The failure to call Mr D by his correct name and within a sympathy card is also fault and a failure to respect Mr D as an individual. This is a potential breach of Regulation 10
40. Ms C says she witnessed care staff frog marching Mr D to the toilet and failed to listen to him. As I was not present and there is no independent witness it is difficult to say now whether what Ms C witnessed and heard was poor practice. I therefore do not intend to pursue this part of the complaint further.
41. Mr D has now died, and it is difficult to know the impact of the failures on him at the time. Ms C however has the anger and distress that but for the faults identified Mr D’s stay would have been more comfortable.

d) Failed to provide correct information to family members; unprofessional attitude from care staff

42. The Care Provider failed to tell family members clearly the rules for visiting during the first 10 days of Mr D’s stay. It also provided conflicting information about the number of visitors Mr D could have at each visit. This is fault.
43. The Care Provider has accepted that staff members could have handled conversations with family members better and an inappropriate comment made in a public area. The Care Provider has taken action to address this. On review of the documentation I also consider the Care Provider had inappropriate conversations about finances with Ms C and her family. Any decisions about support for Mr D should he wish to return home to die were a matter to discuss with the NHS under its remit for continuing health care.
44. The Care Provider’s failures caused Ms C and her family confusion and anger.

Failed to respond to the complaint properly.

45. The Care Provider sent two comprehensive responses to Ms C’s complaint. While the Care Provider needs to consider proportionality in its complaint handling it failed to properly address the visiting policy at the time of Mr D’s stay. This was a major element of Ms C’s complaint and the failure to properly address the matter I consider to be fault and a potential breach of Regulation 16.

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Agreed action

46. Mr D has now died, and I cannot recommend actions to remedy his injustice. The recommended actions are therefore intended to remedy Ms C’s injustice and to improve future practice. As the Care Provider acted on behalf of the Council I cannot make recommendations against the Care Provider. The agreed actions are therefore against the Council as the commissioner of the service:-
1. within one month of the final decision apologise to Ms C for the failures I have identified in this statement. This includes:
1. to properly monitor and support Mr D with pain management, nutrition, medication, and wound management;
2. for misadvising the family about visiting arrangements for the first 10 days of Mr D’s stay which resulted in him receiving no visitors for the first nine days of his stay;
3. for defective equipment in Mr D’s room and inadequate linen and cleaning;
4. for failing to support Mr D with dignity and respect and mismanaging his personal items;
5. the unprofessional attitude from some care staff;
6. for not responding to the complaint fully.
2. within one month of the final decision pay Ms C £500 to acknowledge her unavoidable time, trouble, distress, uncertainty, and anger caused by the Care Provider’s failures;
3. within three months of the final decision through its commissioning role provide evidence:-
1. the Care Provider has systems in place to monitor equipment and cleaning of rooms;
2. the Care Provider had provided information to senior care staff about NHS Continuing Healthcare, when it is applicable and when to make a referral;
3. the Care Provider has systems in place so care records are accurate, reviewed and there is a correlation between advice given and action taken. This particularly applies to wound care, medication changes and nutrition monitoring;
4. the Care Provider supports staff with training about the need to properly record interventions and supporting residents with dignity and respect;
5. Care Provider has systems in place so that resident’s property and clothing is properly managed;
6. complaint responders understand the requirement to respond to all substantive parts of a complaint.

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Final decision

47. I have found fault causing injustice. I consider the agreed actions above are suitable to remedy the complaint. I have completed my investigation and closed the complaint on this basis.
48. 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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Investigator's decision on behalf of the Ombudsman