Summary: There was no fault when the Care Provider failed to detect that Mrs Y had fallen in her room. It was wrong to use CCTV without permission and it has apologised and stopped this. The Care Provider should have ensured that it responded properly to her son’s complaint. Its shortcomings caused Mr K additional distress and frustration. The Provider has agreed to my recommended remedy.

The complaint

1. Mr K complains on behalf of his late mother, Mrs Y
2. He says Caldwell and Beling Ltd (the Care Provider):
• failed to notice that Mrs Y had fallen and seriously injured herself for almost six hours;
• failed to identify it had CCTV footage of the fall for six days;
• was recording on CCTV without consent; and
• failed to properly respond when he complained about it.
3. The issues led to Mrs Y moving to another care home, which was stressful for her and her family. Sadly, Mrs Y has recently died. I understand that her death has been referred to the coroner.

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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 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)
6. We may investigate complaints from the person affected by the complaint issues, or from someone else if they have given their consent. If the person affected cannot give their consent, we may investigate a complaint from a person we decide is a suitable representative. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

7. I considered the information provided by Mr K. I considered the information provided by the Care Provider including Mrs Y’s daily care records, the risk and mobility assessments and the care plan. I have also considered the documents of the safeguarding investigation by the local council. Both parties had the opportunity to comment on a draft of this statement.

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What I found

The law and guidance

8. 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.
9. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. I have called this the safeguarding investigation. (section 42, Care Act 2014)

What happened

10. Mr K’s mother, Mrs Y, was resident in a care home run by the Care Provider. Mrs Y’s care plan said she could mobilise without assistance and use the stairs. She tended to walk especially at night and needed support with her daily living.
11. The Care Provider’s falls risk assessment said that Mrs Y had two falls in the last year, one of which had resulted in a fracture; that she was at risk of dehydration and malnutrition which could contribute to falls, but that her physical strength and balance did not put her at risk of falls. Overall, the Provider found her risk of falls was low.
12. The Care Provider also completed an assessment of Mrs Y’s mobility. This said that Mrs Y could weight bear normally, and could move independently, including in the bed and transferring from and to the bed. Mrs Y could also move around independently and without a walking frame. Again, this assessment put Mrs Y at a low risk of harm from moving around or doing everyday tasks.
13. However, Mrs Y tended to get up in the night and wander. In the early hours of 7 December 2022, Mrs Y was up several times and was brought back to bed by a carer. However, later Mrs Y fell onto the bed rails and to the floor. Mrs Y crawled to the bathroom, stood up and got back into bed. None of the staff were aware that Mrs Y had fallen.
14. The daily care records show that in the morning, the care staff attended Mrs Y as usual. The time between the fall and the staff’s first visit of the day to Mrs Y was around 60 minutes. They spoke to her, and Mrs Y dressed herself with little assistance. The care continued as normal throughout the day. In the afternoon, Mrs Y complained of back ache. Staff took her temperature, pulse, blood pressure and oxygen levels and found these to be within her normal range. They gave her paracetamol. Mrs Y drank but did not eat much. She moved between her room and the lounge unaided.
15. The care continued as normal throughout that night. Staff observed Mrs Y regularly and she was asleep. The next day, 8 December, Mrs Y told staff she had back ache and could not feel her legs. The carer noticed that her face had drooped on one side and her speech was slurred. The Provider called an ambulance and paramedics took Mrs Y to hospital for further investigation.
16. On 12 December, the hospital advised the Provider that Mrs Y had several unexplained rib fractures, a punctured lung and a chest infection. Mr K complained to the Care Provider about the care of his mother. He was initially confused as to how his mother could have sustained the injuries when care staff insisted she had not fallen. He then understood that staff had told the hospital that his mother had had an unwitnessed fall on 8 December. This was incorrect and Mr K was understandably confused and distressed by this. He asked the Care Provider to explain this.
17. The Care Provider asked Mr K for more information and after some correspondence, it told him that it had been mistaken and his mother had not fallen. Mr K asked the Provider again to explain how his mother could have sustained the injuries.
18. On 14 December it became apparent that the Provider had CCTV footage from Mrs Y’s room. It saw that Mrs Y had stumbled when she got out of bed in the early hours of the morning of 7 December and fallen against the bed rails.
19. The Provider had not been aware that the CCTV system was recording. It had not sought consent from residents and so it immediately stopped all the recording.
20. Mr K asked the Care Provider how this could have gone undetected, as the injuries from the fall were serious. He also asked to see the CCTV footage.
21. Mr K complained to the Care Provider, that it had given conflicting information about whether his mother had fallen or not; that it took six days to find this out via the CCTV; that the Care Provider’s manager had been evasive in answering his emails when he was trying to find out what had happened. He also complained that the CCTV had been recording without permission.
22. On 16 December, the Care Provider apologised to Mr K for the way in which the previous manager had answered his concerns. It confirmed that it had raised a safeguarding concern. It would investigate itself what had happened and report back to him. It confirmed that the CCTV was installed several years ago but had not been switched on until recently. The Care Provider was unaware that it was recording. It has now been switched off and will not be used without consent.
23. However, Mr K did not hear further from the Care Provider and so on 30 January 2023 he made a formal complaint. The Care Provider responded. It said:
• Mrs Y had been attended approximately an hour after she had fallen, but nobody knew about the fall and there was no apparent cause for concern. That day the care records note that Mrs Y was content.
• It took six days to view the CCTV footage because the Care Provider did not know that the CCTV system was recording.
• It apologised for the use of CCTV.
• It apologised if the previous manager had been evasive when he was trying to find out what had happened.
• It waived the fees normally chargeable when a resident is admitted to hospital.
24. Mrs Y moved to a new home on 20 December. Mr K complained to the Ombudsman. He noted that the new care home used safety mats that would alert staff when his mother was out of bed. I understand that Mrs Y sadly died earlier this year.
25. The Care Provider had referred the matter to the local authority as a safeguarding concern. The local authority completed a safeguarding investigation. It considered whether the Provider had failed to safeguard Mrs Y against the fall, and whether it sought medical help soon enough when it realised that Mrs Y was not well. The Care Provider had made clear to the safeguarding investigation that it had used CCTV without permission.
26. The investigation considered that Mrs Y had no falls since August 2021 when she had moved to the home, and she was able to mobilise independently. In September 2022, she fell while with her son outside the home and broke her jaw and the Care Provider updated its falls risk assessment. The safeguarding investigation concluded that there were no safeguarding concerns around the unwitnessed fall. Mrs Y was at low risk of falls, and the risk assessment and care plan were appropriate to her needs.
27. The safeguarding investigation also considered whether the Care Provider sought medical attention soon enough after Mrs Y’s fall. The Provider was reliant on Mrs Y to tell them she was in pain, and she did not tell them she had fallen in the night.
28. The safeguarding investigation considered the daily care records and I have also seen these.
29. The safeguarding investigation concluded that the Care Provider acted appropriately when Mrs Y complained of back ache and there was no indication that Mrs Y had fallen. Her care plan said that she would be able to inform staff about pain, and the safeguarding investigation concluded that on balance, this was a reasonable notion as she had told them she had back ache. The investigation noted that temperature and oxygen levels taken on the day of Mrs Y’s fall were within her normal range and did not indicate pain or infection. Although she had refused meals on 7 and 8 December, this was in line with the daily care records of the previous three weeks and so would not have caused staff to suspect there was something wrong.
30. However, the safeguarding investigation found that some of the recording on Mrs Y’s daily care records on 8 December were not accurate and appeared contradictory in places, especially regarding her food and fluid intake. The investigation found that the Care Provider had appointed a new manager, had reminded staff that recording must be accurate, and the new manager would monitor the daily logs.
31. The safeguarding investigation also found that although there was no specific guidance relating to bed rails, Mrs Y did not need these and so they should have been removed. This has now been done for other residents.
32. The safeguarding investigation was concluded on 2 May 2023.

Did the Care Provider’s actions cause, or were they likely to cause, Mrs Y or Mr K injustice?

33. It has clearly been very traumatising for Mr K to find that his mother had fallen and had sustained what must be described as serious injuries, without the Care Provider detecting this. It is also understandable that as safety mats were used with Mrs Y at the next care home, Mr K would wonder whether the Care Provider should have used these and whether this could have helped detect his mother’s fall sooner and potentially meant that there were earlier medical investigations.
34. Mr K complained to the Ombudsman before the local authority completed its safeguarding investigation. A safeguarding investigation is different to an investigation by the Ombudsman. A safeguarding investigation looks at the risk of abuse of or harm to a vulnerable person. The Ombudsman can look at wider injustice.
35. However, overall my current view is that there was no fault by the Care Provider. The care provided was appropriate to the risk and mobility assessments. It was known that Mrs Y would wander at night, but she was not at high risk of falling and could move independently. She got out of bed frequently without falling. There was no reason for the Care Provider to take additional precautions than to have regular checks on Mrs Y throughout the night.
36. Mrs Y did complain of back pain, but the Care Provider responded to this based on the observations it took and what Mrs Y was telling staff. And when the paramedics attended, it seems that they did not suspect there were these kind of injuries. I cannot say that the Care Provider’s actions caused Mrs Y injustice.
37. The Care Provider has acknowledged that it should not have been recording on CCTV. It has apologised to residents for this and stopped using CCTV. It evidently did not realise the system was recording.
38. The Care Provider has also implemented improvements based on the safeguarding conclusions so that recordkeeping is improved.
39. I can see that Mr K was not satisfied with the previous manager’s responses when he was trying to find out what happened. It may have been better if the Care Provider had offered to meet with Mr K to discuss his concerns given his mother’s injuries and that it had given him different accounts of what had happened. However, I cannot say that the Care Provider was evasive in its earlier correspondence. It was trying to establish what had happened and explain this to Mr K.
40. The Care Provider should have made sure that it had answered Mr K’s questions. In December, it said it would revert to him, but did not and so Mr K had to complain again at the end of January. This caused Mr K frustration and added to his distress. In addition, if the Care Provider had completed its complaints process it should have referred Mr K to the Ombudsman (although I note that Mr K had told the Provider that he intended to complain to the Ombudsman).

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Agreed action

41. The Care Provider will apologise to Mr K for the additional distress and frustration it caused him when it did not ensure that it had responded to his complaint properly. Its apology should be in writing.
42. It should provide us with evidence it has done this within one month of the decision.

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Final decision

43. I have completed my investigation. The Care Provider’s actions caused Mr K injustice.

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Investigator's decision on behalf of the Ombudsman