Summary: Mrs X complained about some of the care services provided to her (late) mother, Mrs Y. Mrs X also complained the Care Provider breached its contract and did not take her complaints seriously. We have found the actions of the Care Provider caused an injustice to Mrs Y, Mrs X and her family. To remedy this injustice the Care Provider has agreed to apologise to the family and review some of its procedures.

The complaint

1. Mrs X complains some of the care services provided to her mother, Mrs Y, were below the standard they should have been and that the Care Provider has breached its contract, specifically:

• that an incident at the care home in April 2021 led to a safeguarding investigation;
• that a further incident in February 2022 led to another safeguarding investigation; and
• that care staff attempted resuscitation after Mrs Y had already died and ignored the notice not to attempt resuscitation (DNACPR) on file.

2. Mrs X also says that complaints after her mother’s death were not taken seriously and that the organisation will fail to learn from mistakes.

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What I have not investigated

3. I have not investigated the actions of the NHS as these are not within our jurisdiction.

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The Ombudsman’s role and powers

4. 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)
5. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. 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.

(Local Government Act 1974, section 26A(2), as amended)

7. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
9. 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.
10. 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

11. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Care Provider questions and requested information, and in turn have considered the Care Provider’s response.
12. Mrs X and the Care Provider had the opportunity to comment on my draft decision. I have taken any comments received into consideration before reaching my final decision.

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What I found

Relevant law and guidance

13. 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.
14. The Competition and Markets Authority (CMA) published guidance in 2017 (updated in 2021) which says ‘If you’re paying for your own care, there will be a contract between you and the care home. The terms and conditions in that contract must be written simply and clearly, avoiding jargon, so that you can easily understand your rights and responsibilities’.

Fundamental standards of care

15. 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 CQC has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment;
• dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way;
• safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency;
• abuse and improper treatment (Regulation 13): Providers must have a zero tolerance approach to abuse, unlawful discrimination and unlawful restraint;
• complaints (Regulation 16): The provider must have a system in place to handle and respond to complaints;
• good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user; and
• duty of candour (Regulation 19). Providers must be open and transparent with people receiving care from them.

What happened

16. Mrs Y lived at the Rutland Care Village (the home), operated by Prime Life Ltd (the Provider). Mrs Y had been a self-funded resident there since January 2018. She had multiple care needs, some of which were associated with age related conditions.
17. In April 2021, Mrs Y made an allegation that a member of staff had been ‘rough’ with her and caused her pain. As a result of this allegation, the home:
• informed the police;
• informed the next of kin (NOK);
• began an internal investigation;
• took appropriate action to remove the member of staff whilst the investigation took place;
• notified the CQC; and
• made a safeguarding referral to the Council.
18. The Provider took action as a result of the investigation.
19. Early in February 2022, a member of staff at the home administered Mrs Y an incorrect, high dosage of one of her medications. As a result of this error, the home:
• called 111 which resulted in a paramedic visit to check on Mrs Y;
• informed the NOK;
• began an internal investigation;
• notified the CQC; and
• made a safeguarding referral to the Council.
20. Paramedics attended the home. After assessing Mrs Y, they were satisfied she could remain on site as the dosage was not at a toxic level.
21. The home discussed the incident with Mrs Y’s GP the following day. Three days after the incident, the doctor visited Mrs Y and noted that there was no immediate harm.
22. The Provider later took action as a result of the investigation, which was finalised after Mrs Y’s death.
23. Late in February 2022, Mrs Y was found unresponsive and care staff realised she had died. The home called 111 and was told to commence cardiopulmonary resuscitation (CPR) even though Mrs Y had a DNACPR in place.
24. When paramedics arrived, they stopped CPR as Mrs Y had already died.
25. Mrs X made a complaint to the Provider late in March 2022 and received responses to this initial complaint and subsequent letters sent over the next few weeks.

Analysis

Background information

26. Where someone has died, 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, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment.
27. However, if we consider the person who has complained to us has been adversely affected by the impact of that poor care on their relative, we may make a recommendation to remedy their own distress.

2021 safeguarding incident

28. Mrs X complains of an incident that took place in April 2021. Mrs Y complained that a carer at the home had moved her in a ‘rough’ way when attending to her and that he had hurt her.
29. Evidence I have seen shows the Provider took immediate action and began an internal investigation. The Provider took appropriate action as a result of the investigation. It has since acknowledged the incident was regrettable.
30. Notes from the investigation process are thorough and were taken at the time. The Provider advised other relevant bodies, including the Council, in a timely manner.
31. Whilst the incident itself will have caused Mrs Y injustice, I cannot now remedy this. This incident will have undoubtedly caused distress to Mrs X and her family. I have made a recommendation below to remedy this injustice.

2022 safeguarding incident

32. Mrs X complains of a further safeguarding incident that took place in February 2022. A member of staff administered an accidental overdose of one of Mrs Y’s medications.
33. Once again, evidence I have seen shows the Provider took immediate action and began an internal investigation. The Provider again took appropriate action as a result of the investigation. It has since acknowledged the incident was regrettable.
34. Notes about this incident are again thorough and were taken at the time. The Provider again advised other relevant bodies, including the Council, in a timely manner.
35. Again, whilst the incident itself will have caused Mrs Y injustice, I cannot now remedy this. The incident will have undoubtedly caused further distress to Mrs X and her family. I have made a recommendation below to remedy this injustice.

Resuscitation

36. Mrs X complains that on the day of Mrs Y’s death, staff at the home began CPR despite a DNACPR being in place.
37. When staff at the home called 111 to request a GP to certify Mrs Y’s death, they were advised by 111 to begin resuscitation.
38. Mrs X has advised me that the NHS has admitted to an error on its part and that the home should not have been told to start CPR due to the DNACPR held on file. As I am not investigating the actions of the NHS, I am unable to comment on any injustice that may have been caused.
39. Mrs X remains unhappy that staff at the home did not override the advice of the NHS and began CPR on Mrs Y even though they knew she had an active DNACPR.
40. Case notes made at the time show staff at the home informed the NHS several times there was a valid DNACPR in place but were told to continue with CPR. CPR was stopped on the advice of paramedics who arrived some time later.
41. When Mrs X complained to the Provider about this after her mother’s death, it said that it “is … common practice for all non-NHS staff to follow the instructions given by the NHS.”
42. As part of my enquiries, I asked the Provider to send me any policy it had relating to a DNACPR request that would support the statement made in paragraph 41. It sent me a copy of its “Resuscitation Policy and Procedure” which supports the above. This persuades me that staff at the home acted in good faith and in line with its policy and procedure by following the instructions of the NHS operatives, until paramedics arrived and advised to stop CPR.
43. Given the circumstances outlined above, I do not find the Provider’s actions to have caused Mrs Y an injustice as staff at the home were following procedure.
44. In response to my draft decision, Mrs X said there was a delay admitting her brother, Mr D, to the home after staff had called him to come. She said if staff had admitted Mr D as soon as he arrived on the day of Mrs Y’s death, as NOK, he could have intervened with the 111 staff and overridden their decision to begin CPR. As it was, by the time he was admitted to the home, staff were already underway with CPR as instructed. Mr D then chose to return to his car and entered the home again when paramedics arrived.
45. It is my view that if Mr D had gained access as soon as he arrived, care home staff would still have deferred to the instructions of the NHS staff on the telephone as they are the appropriate body from which to seek medical advice. Mrs X advised me previously that neither she nor Mr D had a Lasting Power of Attorney for Health and Welfare for their mother.

Contract

46. Mrs X complains that the incidents listed above mean the Provider breached its contract and that she would like a refund of six months’ worth of fees.
47. The Provider has advised Mrs X it does “not feel it reasonable (to) provide a refund for the care and support offered.”
48. As part of my enquiries, I asked the Provider to send me a copy of any contract held between it and Mrs Y and her family. In response, it said that it had sent out terms and conditions to Mrs Y’s NOK but that nothing was signed and returned. The Provider confirmed it has no other contract it would send to a ‘private client’ such as Mrs Y.
49. This contradicts CMA guidance (paragraph 14) and may cause an injustice to others. However, in this case, it does not seem to have caused an injustice to Mrs Y or her family as she appears to have lived at the home for several years without the contract being discussed. I have made a service improvement recommendation below to prevent injustice to others in the future.
50. The Provider said the two safeguarding incidents were regrettable. Whilst these incidents may have gone against the fundamental standards set out in paragraph 15, evidence shows that when something did go wrong it was dealt with in a transparent and timely manner, accurate notes were made and appropriate action taken as a result.
51. It is my view the Provider has acted appropriately in dealing with the incidents complained of. Mrs Y paid the fees and any injustice from these incidents cannot now be remedied by refunding fees she paid. I have made recommendations below to remedy the injustice caused to Mrs X and her family by the incidents which took place.
52. If Mrs X believes the terms of any contract between the family and the Provider may have been broken, she has the right to take court action. It is reasonable to expect Mrs X to exercise this right if she chooses.

Complaints

53. Mrs X complains that after her mother’s death the Provider did not take her complaints seriously and will not learn from mistakes made.
54. As part of my enquiries, I asked the Provider to send me a copy of its complaint procedure. In response, it sent me a clear four-stage process by which it handles complaints, signposting to other relevant bodies if the complainant remains unhappy.
55. Evidence I have seen shows Mrs X raised a complaint with the Provider’s regional team by email towards the end of March 2022. It responded within the 14 days outlined in its procedure. Other correspondence between Mrs X and the Provider over the following weeks shows timely responses to each of Mrs X’s letters.
56. It is my view that responses to Mrs X’s letters are generally detailed and attempt to respond to her concerns in an appropriate manner, whilst confirming that a refund offer will not be made.
57. The two safeguarding incidents were appropriately investigated and actions taken as a result, it therefore seems likely the Provider is seeking to learn from these. The Provider acted appropriately in dealing with Mrs X’s complaints and its actions did not cause her an injustice. I see no evidence, in this instance, that it will not try to learn from incidents which took place.

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Agreed action

58. To remedy the injustice I have identified, the Provider has agreed to apologise to Mrs X and her family for the safeguarding incidents that took place in 2021 and 2022, within four weeks from the date of my final decision.
59. Within 12 weeks of the date of my final decision, the Provider has agreed to review self-funded care packages to ensure that everyone is protected by a contract, in line with the CMA guidelines.
60. The Provider should show us evidence it has complied with the actions above.

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Final decision

61. I uphold this complaint. My investigation is now complete.

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Investigator's decision on behalf of the Ombudsman