Summary: The Care Provider acting on behalf of the Council failed to have a detailed “End of Life” plan in place. This resulted in Ms C potentially missing the opportunity of being with her mother when she died. The Care Provider also failed to adequately arrange contact between Ms C and her mother causing frustration and distress. To remedy the complaint the Council has agreed to ensure the Care Provider reviews its policies, reminds staff and if necessary, provides training about care planning. It will also apologise and make a symbolic payment to Ms C for the distress, time and frustration the Care Provider’s failures have caused her.

The complaint

1. The complainant who I call Ms C complains about services provided to her late mother, who I call Mrs D from Lilleybrook Care Home run by Rico Healthcare, the “Care Provider”. The Council commissioned the service provided.
2. Ms C complains the Care Provider failed to:-
1. properly communicate with Ms C and had a faulty phone line which made contacting the care home difficult;
2. respond to Ms C’s complaint properly and accusing her of verbally aggressive behaviour as part of its response;
3. arrange weekly call times between Mrs D and her family;
4. properly note and make suitable referrals for a skin condition for Mrs D;
5. deal with concerns about a nurse properly,
6. show sensitivity to Ms C after her mother died;
7. contact Ms C when her mother was receiving anticipatory medication to prepare her for death.
3. Ms C says as a result of these failures her mother was alone when she died. Ms C had the frustration and anger that she could not have regular contact with her mother in the months before she died. She also says she has had to liaise with staff members who she describes as insensitive and unprofessional.

Back to top

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. 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 a council or Care Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. 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)
7. 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)

Back to top

How I considered this complaint

8. I spoke with Ms C and considered information she provided. I made enquiries of the Council and considered its responses as well as those of the Care Provider. I considered:-
• the Care Provider’s “Anticipatory or “Just in Case” Medicines in Care Homes Policy” and “End of Life care Policy”;
• 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.
9. Ms C and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Background information

10. Mrs D went into the care home in 2018. Mrs D had no sight and a condition which caused hallucinations. This was frightening for Mrs D. Ms C started to have difficulties with the care home during COVID-19 when she says communication became difficult.

What should have happened

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
12. Regulation 9 “Person Centred Care” says Care Providers should enable and support relevant people to make or participate in making decisions relating to the service user's care or treatment to the maximum extent possible…”.
13. Regulation 12 “Safe care and treatment” says Care Providers must assess risks to people's health and safety during any care and make sure that staff have the qualifications, competence, skills, and experience to keep people safe.
14. Regulation 16 says care providers must have an effective and accessible system for identifying, receiving, handling, and responding to complaints from people using the service, people acting on their behalf or other stakeholders. All complaints must be investigated thoroughly, and any necessary action taken where failures have been identified.
15. Regulation 17 says Care Providers should “maintain securely” records and should have “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”.
16. The Care Provider’s “Anticipatory or “Just in Case” Medicines in Care Homes Policy” says
17. “The home will note and record that the medicines have been prescribed for the individual person and the details will be recorded on their (end-of-life) care plan…..The plan will state which medicines have been prescribed and under what circumstances they will be used and by who.”
18. The Care Provider’s “End of Life care Policy” says
19. “Priority 4 – The needs of the family are identified and respected
20. 6.1 Staff must recognise that this is a very emotional and stressful time for the dying person and their family……
21. 6.4 Opportunities should be given to families to discuss changes and/or progress reports during their absence.
22. 6.5 The family’s and Service User should be given the opportunity, wherever possible, to be present when the person dies, and all reasonable steps should be taken to ensure that they are present when the time arrives.”
23. “Priority 5 – An individual Care Plan
24. 7.1 Unless it is sudden and could not have reasonably be foreseen, a comprehensive and responsive plan of care should be formulated at the earliest opportunity for the person.”

What happened

25. Visiting restrictions caused by COVID-19 resulted in limited access to the care home. Between March 2020 to July 2021 an activities co-ordinator scheduled weekly telephone or facetime calls between Mrs D, her husband, who I call Mr D, and Ms C. Apart from nurse contact Ms C says this was the only interaction Mrs D had as she did not leave her room.
26. Ms C started to have problems after the activities co-ordinator left. Ms C says that although agreed the Care Provider often missed calls or needed prompting. Ms C says she was often unable to get through on the phone lines. Ms C raised her concerns with the Care Provider on several occasions. The Care Provider says there were no technical problems with the phone lines, but the phone lines were busy which made it difficult to get through. The Care Provider says it took various steps to ensure regular contact between Mrs D and her family, but Ms C was too rigid in her timings which made contact difficult. It also said that it had to prioritise nursing tasks ahead of contact arrangements.
27. The Care Provider decided not to make a GP referral for a skin “growth” identified by Ms C. It says this was not necessary as it was a flat scab. Following further prompting by Ms C a month later a GP diagnosed the scab as low grade cancer but took no further action.
28. By April 2022 Mrs D’s health had worsened. Ms C moved on 23 April to be near to her mother. Ms C says she told care staff to contact her at any time for updates and so she could be there when her mother died. If that was not possible she asked the care home to ensure her mother was not alone when she died. Although there was an “End of Life” care plan this was general and there was no record about when and what actions care staff should take either in the daily care notes or care plan.
29. Family visited Mrs D on 26 April. The records show care staff regularly checked Mrs D during the night. At 04.24 on 27 April a carer gave Mrs D both midazolam and morphine, she records that Mrs D displayed signs of distress and pain and was unhappy. The carer left Mrs D to support an emergency with another resident. The carer returned at 05.30 at which point Mrs D had died. The carer completed vital observations for 15 minutes before contacting the Out of Hours GP. The Care Provider says this is usual practice when someone dies in a care home. At 06.10 the carer phoned Ms C to tell her of Mrs D’s death.
30. The Care Provider says it could not predict when Mrs D was going to die and there was nothing significant that warranted earlier contact with Mrs D’s family.
31. Ms C says during the call the carer was unsympathetic and concentrated on finding out details about the funeral director and the speed at which Ms C could come to the care home. Ms C says the carer said she was on her own and this was the reason she could not call earlier. Ms C says there was a lack of sympathy when she went to the care home to see her mother. The same carer offered no condolences when she arrived at the care home, was cold and had not removed a catheter from her mother. Ms C says staff should have removed the catheter before her arrival. The Care Provider in its complaint response apologised for this failure but said there was no evidence of any other service failure by the carer.
32. Ms C also complains about the conduct of a nurse. Ms C says this nurse was abrupt on the phone, dismissive, and wrongly advised her that weekly calls would have to end. Ms C raised these issues at the time with the Care Provider. The Care Provider did not respond to Ms C’s specific concerns about the nurse but said the weekly calls would continue. In response to Ms C’s later complaint the Care Provider said the nurse’s conduct was one person’s word against another and without any independent proof it could not make a finding on the complaint.

Was there fault causing injustice?

(a) The Care Provider failed to properly communicate with Ms C and had a faulty phone line which made contacting the care home difficult.

33. The Care Provider accepted there were difficulties with phone access to the care home. This caused Ms C time, trouble, and frustration. The email trail shows several times when Ms C could not access the care home for both scheduled calls and to get updates on her mother. The Care Provider offered no alternatives and Ms C had to either make repeated calls or email the care home.

(b) The Care Provider failed to respond to Ms C’s complaint properly, accusing her of verbally aggressive behaviour as part of its response

34. The Care Provider responded to Ms C’s complaints but in doing so raised issues not previously shared with Ms C. This includes that she was verbally aggressive and inflexible. There is no evidence of Ms C’s aggression from either the Care Provider or the care records. Both the chronology and email exchange between the Care Provider and Ms C contain no evidence to suggest she was inflexible. Ms C was understandably frustrated that the Care Provider had not kept to agreed arrangements which was the only regular access both Ms C and Mr D had with Mrs D.
35. Ms C had outrage and frustration by the way in which the Care Provider responded to her complaints focusing the “blame” on Ms C.

c) The Care Provider failed to arrange weekly call times between Mrs D and her family

36. Between August 2021 and December 2021 Ms C did not always receive weekly calls; neither was she told about any delays or cancellations. This is evidenced from the email communication between Ms C and the Care Provider. From February and March 2022 there are care records of regular weekly updates. Although the situation improved, the failure to arrange regular calls for Ms D is fault.
37. The Care Provider did not properly consider Mrs D’s emotional and mental health needs and the importance of these calls to both Mrs D and her family. The calls were the only contact Mrs D had with people other than care staff. Although there was some consideration about these needs in the care plan there is a lack of detail about how often contacts should take place and how Mrs D’s emotional needs would be met. The failure to properly consider, prioritise these needs, and include them as part of a care plan is fault and not in line with Regulations 9 and 12.
38. The Care Provider’s failures caused Ms C time and frustration in chasing calls and waiting unnecessarily for calls that did not occur.

d) The Care Provider failed to properly note and make suitable referrals for a skin condition for Mrs D

39. Ms C says the Care Provider should have contacted the GP earlier about a skin “growth”. The Ombudsman cannot challenge a professional judgement unless there is fault in the way the decision was reached. The Care Provider made a reasoned decision about why it did not contact the GP, it is therefore difficult to criticise its judgement. There was no follow up action by the GP, and therefore even if I found fault I could not say this caused Mrs D or Ms C any injustice. I therefore do not intend to investigate this part of the complaint further.

(e) The Care Provider failed to respond to concerns about a nurse properly

40. It does not appear from the records the Care Provider considered Ms C’s early concerns and complaints about a nurse properly. There is no response about her cause of complaint. This is fault and not in line with Regulation 16.
41. In response to Ms C’s later complaint the Care Provider said it could not reach a decision on her complaint as it was one person’s word against another. Had the Care Provider considered this complaint earlier it may have been able to reach a decision. Although I cannot say now what the result of the investigation would have been, Ms C lost an opportunity for her complaint to be properly considered at the time.
42. Ms C was upset by the tone and what she considered to be the dismissiveness of the nurse. On balance and looking at the email exchange at the time between the Care Provider and Ms C I consider it is more likely than not that the nurse told Ms C visits would end. This caused Ms C distress, time, and trouble in escalating her concerns.

(f) The Care Provider failed to show sensitivity to Ms C after her mother died

43. I have listened to the telephone recording of the care home telling Ms C of her mother’s death. Although the carer at first offered her sympathy her focus was on finding out about the funeral directors. The failure to already have this information on record when the Care Provider knew Mrs D was at end of life care is not in line with Regulations 9 and 17 and is fault.
44. While I appreciate telling a family member about a death is difficult, carers should show sensitivity and empathy. While I do not consider the carer acted out of malice her lack of empathy left Ms C feeling bewildered and distressed.

(g) The Care Provider failed to contact Ms C when her mother was receiving anticipatory medication to prepare her for death.

45. The Care Provider did not have a detailed “End of Life” plan. This was not in line with its own internal policy nor Regulations 9 and 17. There was no detail about what actions to take, when, and who to contact. This is fault.
46. In addition the care notes record, and Ms C says she told the Care Provider to tell her about any changes in Mrs D’s condition. I consider the administration of morphine and midazolam, and the change in Mrs D’s behaviour was information the Care Provider should have shared with Ms C. While I understand the Care Provider cannot accurately predict the timing of a death I consider there was a material change in Mrs D, and it should have updated Ms C.
47. Ms C says the care home failed to call her because it was understaffed. The Ombudsman is unable to say what the appropriate level of staffing is. This is a matter of judgement based on the level of residents’ needs at any given time. I would however suggest that as part of the Council’s role in monitoring the service it also considers checking staffing is at an appropriate level.
48. Ms C says had the Care Provider contacted her she would have got to the care home within twenty minutes. Mrs D died between 04.24 and 05.30. I cannot say now whether Ms C would have been with Mrs D when she died. But Ms C has the uncertainty of not knowing what might have happened but for the faults identified. She also has distress and upset by the missed opportunity to be with Mrs D near or at the point of her death.

Back to top

Agreed action

49. 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/service of the Care Provider, I have made recommendations to the Council.
50. Within one month of the final decision the Council has agreed to:-
1. apologise to Ms C for the failures I have identified, this includes:-
1. the uncertainty caused by the lack of an “End of life” care plan for Mrs D;
2. the frustration, time, and trouble she had because of failures of the Care Provider to communicate properly;
3. the failure to consider her complaint properly.
2. pay Ms C £650 for the uncertainty, time, trouble, distress, and frustration the service failures caused her.
51. Within three months of the final decision the Council has agreed to ensure the Care Provider:-
1. reviews “End of Life” care plans so they are relevant to time and health of a resident;
2. reminds staff and if necessary, provides training about the need to update care plans and the detail required within a care plan,
3. reminds staff and if necessary, provides training about the importance of social interaction and family contact to mental wellbeing;
4. reminds staff and if necessary, provides training about the importance of recording and sharing information with appropriate family members;
5. reminds staff and if necessary, provides training about dealing with ongoing concerns as complaints, and investigation of complaints.
52. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

53. I have found fault and service failure in the actions of the Council commissioned Care Provider which has caused injustice. I consider the agreed actions recommended above are suitable to remedy the complaint. I have now completed my investigation and closed the complaint.
54. 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.

Back to top

Investigator's decision on behalf of the Ombudsman