Summary: The Care Provider failed to consider Mr D’s capacity properly when supporting him with his medication. It also failed to adequately support him with his nutrition. This has caused the complainants uncertainty about whether the care home could have prevented a decline in Mr D’s health. To remedy the complaint the Care Provider has agreed to apologise to the complainants, make them a symbolic payment, review procedures, provide staff training and remind staff about the importance of recording actions, assessing capacity and monitoring weight.

The complaint

1. The complainant, who I call Ms C complains about services provided to her late father who I refer to as Mr D. Ms C complains in her own right and on behalf of her brother who I refer to as Mr C.
2. Ms C complains that Beaumont Care Home, owned by Care Concern (Frinton) Limited, the “Care Provider” failed to provide suitable care to Mr D in the weeks leading up to his death. In particular it failed to get and follow advice about Mr D’s medication; consider his capacity properly and monitor his weight. Ms C also says the Care Provider failed to update family members, lost property and delayed in refunding over paid fees.
3. Because of these failures Ms C says Mr D did not receive suitable care. Ms C says the Care Provider’s failures have caused both her and Mr C stress and upset.

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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 an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. 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.
6. 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

7. I read the complaint and the associated documents. I spoke with Ms C and made enquiries of the Care Provider. This included asking for documents and specific questions about its actions. I considered:-
• the Care Provider’s response;
• Mr D’s care records;
• 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.
8. Ms C 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

9. Mr D went into the care home in October 2021. Mr D had a diagnosis of Alzheimer’s disease. Ms C says when Mr D entered the care home she had a registered Lasting Power of Attorney for both health and welfare matters.

What should have happened

Fundamental standards

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
11. 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…”.
12. 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.
13. Regulation 14 says Care Providers must meet service user’s nutritional and hydration needs. The associated guidance says Care Providers,
14. “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.
15. Providers should have a food and drink strategy that addresses the nutritional needs of people using the service.”
16. 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.”
17. Regulation 19 – Care Providers must make written information available about any fees, contracts and terms and conditions, where people are paying either in full or in part for the cost of their care, treatment, and support.

Mental Capacity Act 2005

18. The Mental Capacity Act 2005 and the associated Code of Practice 2007 provide the framework and steps a person should take when supporting someone who may lack capacity to make decisions for themselves.

Mental capacity assessment

19. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behavior; or
• before all practicable steps to help the person to do so have been taken without success.

20. The “authority” must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

21. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
22. A Lasting Power of Attorney (LPA) is a way of giving someone, an attorney, the legal authority to make decisions on their behalf if they lose the mental capacity to do so in the future. There are two types of LPA, one for financial decisions, and another for health and care decisions. An LPA needs to be registered with the Court of Protection but only comes into effect when a person loses capacity to make decisions about their financial and welfare matters.

Contractual terms

23. Mr D’s contract with the care home says its insurance, “does not extend to your personal property exceeding the value of £500. We shall make good any loss or damage to your property which is the result of our negligence, but you may wish to make your own arrangements to insure all personal property which you bring into the Care Home.”

What happened

Administration of medication

24. In June 2022 Mr C spoke to the care home about Mr D not taking his medication. At this point the Care Provider considered Mr D had capacity to make decisions about whether to take the medication. This included medication to support Mr D with the risk of a stroke and heart attack. The case notes record Mr D’s refusal to take medication because of what he perceived to be the side effects of the medication in particular tingling in his hands.
25. The Care Provider completed a capacity assessment for Mr D on 28 July. This says,
26. “Mr D may have to have information surrounding his medications given to him many times due to his cognitive impairment. He suffers with pain and can ask for pain medications if he needs it. However, he may not comprehend the importance of his other medications and the implications of not taking them”
27. The staff did not record any other analysis of Mr D’s capacity to decide whether he should take his medication.
28. On the 10 August a GP paramedic saw Mr D about his refusal to take medication. This was the fifth contact the Care Provider had with the GP surgery about Mr D’s refusal. The GP paramedic said Mr D had “full capacity to understand that he may suffer a stroke or heart attack due to not taking his medication”; and advised staff to continue to offer Mr D his medication informing him of the possible consequences if he refused. The following day the GP decided to change Mr D’s medication so it could address the tingles in Mr D’s hand and to pinpoint which medication was causing side effects. The Care Provider also agreed to make a referral to the Dementia service to complete a capacity assessment.
29. Between 15-25 August Mr D had no medication. Mr D saw a GP on 26 August, his blood and urine were tested for signs of infection and any side effects of not taking his medication. The GP advised the Care Provider needed,
30. “to explain each time he is refusing his medication the consequences this may cause him and to document. Also to keep the family informed”.
31. The Care Provider says it took this action. I have however only seen one entry on 29 August when care staff recorded this action.
32. There is no record of the Care Provider discussing issues about Mr D’s medication until Mr C visited on 3 September. Ms C visited later the same day and was shocked by Mr D’s appearance and the failure of the Care Provider to contact her about their concerns. Over the next few days Ms C says she liaised with both the GP and Care Provider, so Mr D got the correct medication.

Monitoring nutrition

33. The Care Provider weighed Mr D on 6 July and 4 August. On both occasions it assessed Mr D as medium risk. It completed a food and fluid chart from July 6. When Ms C visited on 3 September she raised concerns about Mr D’s severe weight loss. Ms C says she also found sandwiches hidden in Mr D’s room. The Care Provider weighed Mr D the same day. He had lost eight kilograms in weight, 14% of his body weight.
34. The Care Provider assessed Mr D as high risk. It updated Mr D’s nutrition care plan to include making a referral to a dietician, completing hourly monitoring of food and fluid, offering fortified shakes, weighing weekly and checking Mr D’s room for hidden meals.
35. The Care Provider has accepted it should have noticed Mr D’s weight loss and not waited until the scheduled date to weigh Mr D. It has reminded staff and provided training about using observational skills when supporting residents. The Care Provider has also changed procedures. Managers now complete a daily walk around to ensure as far as possible there is an extra check on residents’ well-being.

Refunding care fees and a claim for missing items.

36. Following Mr D’s death Ms C identified there was missing jewellery. The Care Provider accepted this was lost at the care home and asked Ms C to get a quote so it could reimburse the value. Ms C provided a value of over £2000. The Care Provider has agreed to pay £1000 towards the cost of replacement. The Care Provider will not pay more than this as it says its contract limits liability to £500 per item. The Care Provider says Mr D should have insured any valuable items.
37. Ms C says the Care Provider delayed in refunding over paid fees. The Care Provider says there was no undue delay in the refund. It contacted Ms C in mid- September advising that it was completing a final account. It then contacted Ms C on 6 October advising a refund was payable and requesting documentation. It made payment on 28 October which was within the 30 day internal procedure for refunds after documentation is submitted.

Failing to provide suitable care to Mr D in the last six weeks of his life

38. Mr D’s condition declined rapidly in the last six weeks of his life. During this period the Care Provider contacted the GP on several occasions. Mr D tested negatively for a urine infection on 4 September but positive on 5 September. On the same day the GP agreed to prescribe antibiotics. There were conversations with health services on 3,4, 5, 9, and 11 September. There was a note to say the Care Provider had picked up some medication on 11 September but there was still some medication outstanding. This was after the GP had prescribed medication on 5 September.
39. Ms C says the Care Provider failed to get antibiotics and she had to chase this up so Mr D could be treated for a urine infection.

Communication with the Care Provider

40. Ms C says the Care Provider did not communicate effectively with family members about concerns, or with updates until Mr D was very ill. Ms C says she was the Power of Attorney for health and welfare matters and the care home should have communicated any concerns with her. The Care Provider has accepted it should have communicated better with Ms C.
41. Ms C complains the Care Provider did not act sensitively following Mr D’s death. Ms C says during the phone call informing of her of Mr D’s death, the staff member was more concerned about funeral arrangements than the impact on Ms C of Mr D’s death. Ms C also says although two members of staff attended the funeral, it did not send a condolence card.

Was there fault causing injustice?

Monitoring nutrition

42. The Care Provider was at fault for failing to notice and act on Mr D’s weight loss. This is service failure and not in line with Regulation 14. Although the Care Provider completed food and fluid charts it did not record the levels Mr D needed for adequate nutrition. There was therefore no analysis of whether his nutritional intake was at a suitable level. This is service failure. The Care Provider also failed to notice Mr D was hiding food in his room. Due to the significant weight loss it is more likely than not this had been going on for some time. I therefore consider the Care Provider was at fault for failing to notice Mr D was hiding food. There is also no evidence of staff offering Mr D fortified drinks after the Care Provider assessed him as high risk.
43. Because of this service failure Ms C and Mr C have the uncertainty that but for the faults identified Mr D’s weight would not have declined as it did. They also have the frustration and anger that the Care Provider did not monitor Mr D’s nutrition properly.
44. As stated in paragraph 35 above the Care Provider has accepted service failure and changed procedures. These actions are welcome. I have recommended further actions detailed below to remedy this part of the complaint.

Administration of medication

45. I appreciate giving Mr D medication was difficult. There is evidence the Care Provider was in regular contact with the GP about Mr D’s refusal to take medication. There is however some confusion about whether the Care Provider considered Mr D had capacity to make decisions about his medication. On the most part it appears the Care Provider presumed Mr D had capacity to make decisions about his medication and this was supported by the GP.
46. However there is no clear record of the Care Provider’s view on Mr D’s capacity to decide about taking his medication. The Care Provider completed a capacity assessment and noted concerns about Mr D’s ability to retain information. It did not however analyse whether Mr D had capacity to make the decision; and what steps the Care Provider needed to take to minimise risks to Mr D if making capacitated decisions. This is fault and not in line with the Mental Capacity Act.
47. The Care Provider did later refer to Dementia services to complete a capacity assessment but by then Mr D’s health had worsened. I consider the Care Provider should have acted earlier. The failure to do so was a potential breach of Regulation 12.
48. A capacity assessment should also usually involve family members for their views on the decision. The Care Provider did not contact Ms C or Mr C when completing the assessment neither did it tell them of the result. This was even though it was aware Ms C had LPA for both welfare and finances. This is fault and not in line with the Mental Capacity Act.
49. On the 10 August the GP considered Mr D had capacity to decide about taking his medication, but the Care Provider should record refusals and take additional steps. There is no evidence of the Care Provider encouraging Mr D to take his medication or the additional steps outlined in paragraph 30. The failure to take these steps and to record the actions is fault and a potential breach of Regulations 12 and 17.
50. There was a 10 day period when Mr D did not take medication. The care plan says a GP should be notified if Mr D refused to take medication for three days. The Care Provider’s failed to do this and is service failure. This preceded Mr D’s deterioration in health and while I cannot say there is a causal link between not taking the medication and Mr D’s ill health, Ms C and Mr C have the uncertainty that had the Care Provider acted earlier Mr D would not have deteriorated as he did.

General care provided

51. Both Ms C and Mr C were shocked by Mr D’s appearance when they visited on 3 September. The notes evidence the Care Provider was supporting Mr D with both his personal care and daily living tasks. However because of the failures I have found above I cannot say Mr D received the general level of care he should have.

Communication with the family, delay in refunding an overpayment and reimbursement for missing items.

52. The Care Provider has accepted it did not communicate with family about concerns it had about Mr D’s health and taking his medication. It has also apologised for failing to act with sensitivity after Mr D died. The failure to properly communicate with family members is fault and not in line with regulation 9.
53. Because of these failures the family missed an opportunity to participate in decision making about their father. They were caused upset by the Care Provider’s insensitivity and frustration and anger that had the Care Provider spoken with them at an earlier point, Mr D’s health would not have declined as it did.
54. The Care Provider accepts it did not secure some of Mr D’s jewellery. It relies on its contract terms to limit the liability to £1000. The contract is however unclear. It limits liability to £500 per item but goes on to say it will “make good any loss or damage to your property which is the result of our negligence”. The failure to have clear contract terms is a potential breach of Regulation 19.
55. Ms C and Mr C have the uncertainty and delay of not knowing in what circumstances the Care Provider would pay for lost or damaged items. I am however unable to say the Care Provider should refund the full value of the lost items as this requires the interpretation of a contract. The Ombudsman can consider the ordinary meaning of contract terms, the interpretation of a contract is however a matter for the courts. The Care Provider may want to consider reminding residents and or their families of the need to insure valuable items when completing the inventory.
56. There was an initial three week delay by the credit control team in advising Ms C about the process she needed to follow to get a refund. This was service failure and caused her time, trouble, and frustration. Once Ms C provided the relevant paperwork the Care Provider acted within its policy timescales.

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Agreed action

57. I consider there was service failure by the Care Provider which caused Mr D, Ms C, and Mr C injustice. Mr D has now passed away and we cannot remedy his personal injustice. The agreed actions are therefore to improve future practice and to address the personal injustice caused to Ms C and Mr C.
58. The Care Provider has agreed to within one month of the final decision:-
1. apologise to Ms C and Mr C for the service failure I have identified. In particular the uncertainty caused by its failure to assess Mr D’s capacity properly, monitor Mr D’s nutrition and weight adequately, communicate with Ms C and Mr C effectively, and delays in dealing with a refund and missing jewelry;
2. pay Ms C and Mr C £350 each. A symbolic payment for the distress and uncertainty caused by the Care Provider’s service failure.
59. The Care Provider has agreed to within three months of the final decision:
1. review procedures, provide training and remind staff about when and how to complete capacity assessments, when to obtain advice and who from;
2. review procedures, remind staff and if necessary, provide training about how nutrition is monitored. In particular the inclusion of nutritional levels residents need, to ensure prompt action especially when a person reaches the “High” risk category; and to provide fortified drinks as soon as they are needed;
3. remind relevant staff in the credit control team about the process people need to follow to get a refund after a resident has died to prevent delay;
4. review procedures and remind staff about the importance of communicating with families and the relevance of an LPA;
5. remind staff about the importance of recording all interventions with additional detail where necessary and following professional advice.
60. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

61. I have found service failure which has caused Mr D and the complainants injustice. I consider the agreed actions above are suitable to remedy the complaint.
62. I have now completed my investigation and closed the complaint based on the agreed actions above.
63. 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