Summary: There is no evidence the commissioned care provider failed to give a good standard of care and treatment to the late Mx X.

The complaint

1. Mrs X (as I shall call her) complains about poor care and treatment of her late husband Mr X in the Brunswick House care home, a placement commissioned by the Council.

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What I have and have not investigated

2. I have investigated the complaint as set out above. I have not investigated a complaint about the award of Continuing Healthcare funding as that is a matter for the Parliamentary and Healthcare Ombudsman.

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The Ombudsman’s role and powers

3. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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. 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

6. I considered the written and photographic information provided by the Council, the care provider and Mrs X. I spoke to Mrs X. All parties had the opportunity to comment on an earlier draft statement and I considered their comments before I reached a final decision.
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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What I found

Relevant law and guidance

8. Where it appears a person may be eligible for NHS Continuing Healthcare (NHS CHC), councils must notify the relevant integrated care system (ICS). NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care. Such care is provided to people aged 18 years or over, to meet needs arising from disability, accident or illness. Complaints about NHS CHC are dealt with by the Parliamentary and Health Service Ombudsman.
9. 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.
10. Regulation 10 says service-users must be treated with dignity and respect. Staff must make sure that people have privacy when they receive treatment and that they are supported to wash, bath and use the toilet.
11. Regulation 12 says care and treatment must be provided in a safe way. That includes ensuring that the equipment used by the service provider for providing care or treatment to a service user is safe for such use. People’s medicines must be available in the necessary quantities at all times to prevent the risks associated with medicines that are not administered as prescribed. This includes when people manage their own medicines.
12. Regulation 13 says service users must be safeguarded from abuse or improper treatment. That includes making sure people are not left in soiled sheets for long periods or left on the toilet for long periods and without the means to call for help.

What happened

13. Mr X moved into the care home in March 2020 (at the start of the pandemic when Mrs X’s visits were necessarily limited for some time). He was mostly immobile after the removal of his left hip and had diabetic neuropathy (so he had little feeling in his feet or hands, and particular foot health problems). He had heart failure. His care plan notes he required 2/3 carers for hoisting and would not tolerate a bedpan. He used a shower chair and commode. Mr X had full capacity to make his own decisions.
14. Mrs X says the more often she visited the care home in 2021 the more aware she became of problems with her husband’s care. She says frequent changes in the home’s management hampered communications. During 2021 Mrs X was also applying for NHS CHC funding and in dispute about the relative gradings given to Mr X’s condition by the assessors and she says this caused immense stress for her.
15. In August 2021 Mrs X emailed the then deputy manager with complaints that staff did not always give Mr X adequate pain relief, that some staff insisted on his use of a bedpan not a hoist, and that she did not think agency staff knew enough about his conditions. She raised further complaints in October 2021. She said two agency carers had refused to give Mr X the prescribed Oromorph as they said it was too strong. A carer had insisted he use the bedpan. She also complained that care staff did not seem to report medical issues – such as the poor state of Mr X’s legs and his infected toes – promptly so they could be treated.
16. The deputy manager responded. She said care staff did not administer medications but did let nursing staff know of any concerns. She said residents’ health needs were promptly reported (and she cited the involvement of and discussions with the GP as evidence). She asked for more details about the carer who insisted Mr X use a bedpan. In a second response she asked whether Mrs X thought another placement would be better, “due to the frequency we are not meeting yours or (Mr X’s) expectations”. Mrs X said she thought a move might be counterproductive as she understood many homes were short-staffed.
17. Mrs X made a number of complaints about events in December. She said Mr X had been left in considerable pain because he had been told he would have to wait for pain relief. She said on 2 December he had asked for Oromorph but not been given any. Next day his call bell had been on the floor out of reach. She said on 9 December there had been a ‘mass’ in his stomach and paramedics were called but after laxative was administered the decision was taken not to go to hospital. The care home notes record staff concern about potential faecal impaction and convinced Mr X it would be sensible to attend hospital because of the risk of peritonitis. Mr X agreed but was able to open his bowls and then said he did not want to attend hospital: he agreed to the doses of laxative and also have a suppository.
18. Mrs X said the mass had forced Mr X’s bladder into his chest. She said on 13 December Mr X had been kept waiting all day to use the commode but in the end was left too long: she said staff had repeatedly told him they had run out of laxatives so he had stopped asking. The care home notes record that the GP had seen Mr X on 9 December and increased his dose of laxatives as well as recommending the insertion of a catheter as he was concerned about possible urine retention. The care home notes show the care staff were in regular contact with the GP over the next few days. Mr X was advised to go into hospital but declined.
19. The care notes for 14 December record that Mrs X had complained to a member of staff when she visited: “(Mrs X) then said about (Mr X’s)'s constipation stating staff always said that there was no Laxido in stock. (Mr X) then admitted he declined Laxido and he had only had it a couple of times this month.”
20. The deputy manager responded to Mrs X’s complaints. She said it was not possible for the bladder to be forced into the chest as Mrs X suggested. She said there was plenty of laxative in stock and carers provided Mr X with it to make up the doses a day he required: she said she had very recently had a conversation with him advising him to take both doses but said that was his decision to make. She said overall she understood Mr X was happy with his care but advised Mrs X again to consider another placement if she still had concerns.
21. At the end of December Mr X took the decision to refuse his medications in the knowledge this would hasten his death. The care home notes show Mr X’s GP discussed the matter with him and a second GP from the practice also visited to ensure Mr X understood the implications of his decision. The deputy manager explained to Mr X that staff would continue to offer him his medication and document when he declined it. The GP prescribed anticipatory medications for pain relief and sedation for when Mr X neared the end of life. Mr X died on 19 January 2022.

The complaint

22. In March 2022 Mrs X complained to the Council about the care provided to Mr X. She complained about the failure to give laxatives often enough and said this had caused a mass in his stomach and affected his bladder, after which he had to have a catheter. She said if he was not given the correct doses of Oromorph he would be in agony especially when moved in the sling or onto a bedpan. She complained that his skin was not properly looked after despite the creams she provided.
23. The Council’s contract monitoring officer investigated and responded to the complaint. She wrote to Mrs X in August 2022. She said the deputy manager had provided information in response to Mrs X’s concerns. She said Mr X had capacity and sometimes declined to take laxatives despite knowing the consequences. On one occasion paramedics had been called due to the risk of a bowel perforation but Mr X then decided not to go to hospital. He had been catheterised but this was not directly as a result of his constipation on that occasion.
24. The response also said the care team had applied the creams as prescribed and noted Mrs X had commented on an improvement in Mr X’s skin integrity.
25. The care home notes record the prescribed creams were applied regularly. The notes record Mr X’s feet were checked regularly. He was repositioned appropriately in bed to avoid pressure sores, except when he refused to be repositioned The care provider says “Our nurses are wound care trained and staff have a good understanding of skin integrity. There is no confusion in reporting skin integrity concerns and changes. TVN input was not required and this is agreed by various nurses still in employment as they were manageable with GP input for cream prescription.”
26. The care provider said they did have to insist on Mr X using the bedpan sometimes as he would not use the recommended sling. The records show the deputy manager raised concerns with the health trust about the use of the ‘access’ sling and hoist for Mr X, as he was declining to follow instructions and lifting his arms above his head, putting himself at risk of falling through the sling. A manager responded in December 2021 that the sling remained suitable for Mr X if he followed instructions. She said it may be possible to hoist him onto a bedpan on the bed as he would not then be hoisted away from a supporting surface.
27. The contract monitoring officer concluded she was satisfied the care home had addressed any concerns raised by Mrs X.
28. Mrs X emailed the deputy manager to say the letter she had written to the Council about the complaint was a fabrication. She said Mr X would never have refused laxatives and he was always in pain: to ask him to use a particular sling to comply with health and safety requirements was not possible, and it was cruel to expect him to use a bedpan.
29. Mrs X complained to the Ombudsman.

Analysis

30. Mr X had multiple health problems when he moved into the care home. The care records show care was offered appropriately but sometimes Mr X declined his medications or was reluctant to comply with the proper use of equipment. It was not the decision of a nurse, as Mrs X alleges, to insert a catheter but that of the GP.
31. There were occasions when staff could not respond immediately to Mr X’s needs but the evidence I have seen does not show that he was left for long periods without attention.
32. There is no evidence that Mr X was not treated with dignity and respect by care staff.
33. The care provider sought to provide Mr X with care in a safe way and sought advice appropriately.

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Final decision

34. I have completed this investigation on the basis there is no evidence that the actions of the commissioned care provider caused injustice to Mr X.

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Investigator's decision on behalf of the Ombudsman