Summary: Miss K is making a complaint about the care and treatment her father (Mr Q) received in residential care before he died. She says the Care Provider delayed in seeking suitable treatment for Mr Q and failed to consult with his family and doctor on his health decline. We have not identified any fault by the Care Provider about the issues raised by Miss K. We did find fault with information the Care Provider provided to the NHS about Mr Q’s needs to assess his eligibility for funding of his care needs. However, we cannot say whether Mr Q was eligible and therefore suffered an injustice.

The complaint

1. The complainant, who I refer to as Miss K, is making a complaint about the standard of care her late father (Mr Q) received while in receiving care and support at Ryland View. This is a residential care home providing personal and nursing care and accommodation. The care home is managed by Advinia Care Homes Limited (the Care Provider). However, Mr Q’s care and accommodation with the Care Provider was arranged and funded by the Council which is therefore responsible for the care. Miss K alleges the following against the Care Provider:
1. The Care Provider delayed in referring Mr Q for Speech and Language Therapy (SALT) to support his difficulties swallowing and eating.
2. The Care Provider was responsible for not overseeing and properly responding to Mr Q’s weight loss which caused him to be malnourished.
3. The Care Provider failed to give oxygen to Mr Q when he was discharged from hospital. Miss K says access to oxygen was a hospital discharge requirement.
4. There was a delay by the Care Provider in contacting Mr Q’s doctor and calling paramedics in response to concerns about his health. Miss K says this delayed Mr Q receiving suitable care and treatment at hospital.
5. There was a failure by the Care Provider to contact Mr Q’s family and keep them informed of any concerns with his health.
6. The Care Provider did not collect and give Mr Q medication prescribed by his doctor for a suspected chest infection.
7. The Care Provider did not complete a Continuing Health Care (CHC) form for Mr Q which was necessary for him to receive NHS funded care and treatment.
2. In summary, Miss K says the alleged faults and poor standard of care contributed to the decline in Mr Q’s health and him dying. She also considers Mr Q suffered harm while in care. Miss K explains these matters have also had a significant impact on the family as the events caused distress and anxiety. Miss K wants the Care Provider to accept responsibility for the alleged failings and that it has been negligent. She also wants an apology from the Care Provider and a refund of the care home fees for the time Mr Q was there.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
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. Where an individual, organisation or private company is providing services for a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended).
6. 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 we may find fault with the actions of the service provider, we will make recommendations to the council.
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).

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How I considered this complaint

8. I have read Miss K’s complaints to the Council and Ombudsman. I have produced this report following examining relevant files and documents and interviews with the complainant and relevant employees of the Council. I have also considered applicable legislation, guidance and policy. I provided the complainant and Council with a confidential draft of my decision and invited their comments. I considered the comments made before I made a final decision.

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My findings

Background and legislative framework

The Care Act 2014

9. Some people need extra care or support, practical or emotional, to lead an active life. The need for social care may arise when a person becomes frailer with age as one example. A care and support plan is a detailed document setting out what services will be provided by the local authority. It also explains how it will meet the person’s needs, when they will be provided, and who will provide them. A care and support plan should be reviewed regularly by the local authority.
10. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. Once a needs assessment has been completed, the Care and Support (Eligibility Criteria) Regulations 2014 are used to identify the needs which must be met by a council. Where a council has determined a person has eligible needs, it has a legal duty to meet these needs, subject to certain financial criteria.

Fundamental standards of care

11. 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. The fundamental standards include:
1. Person-centred care: Mr H must have care and treatment that suitable to him and meets his needs and preferences.
2. Duty of candour: The Care Provider must be open and transparent with Mr H and those with responsibility for him about his care and treatment.
3. Safety: Mr H must not be given unsafe care or treatment or be put at risk of harm that could be avoided.
12. 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. Under our information sharing agreement, we will share this decision with the CQC.

Speech and language therapy

13. Speech and Language Therapists play an important role in supporting patients with communication and swallowing difficulties. They can also suggest nutritional supplements such as milkshakes, juices or soups that are easier to swallow and fortified with nutrients. In cases where swallowing is difficult, SALT might suggest alternative methods of feeding, such as feeding tubes.

NHS continuing healthcare

14. Some people with complex health needs qualify for free social care arranged and funded solely by the NHS. This is known as NHS CHC which can be provided in various settings outside hospital, such as in a person’s own home or in a care home. The initial checklist assessment can be completed by a nurse, doctor, other healthcare professional or social worker. Integrated care boards, known as ICBs (the NHS organisations that commission local health services), must assess a person for NHS CHC if it seems that they may need it.
15. The applicant should be told that they are being assessed and what this involves. This may lead to a referral for a full assessment for NHS CHC which is undertaken by a multidisciplinary team (MDT) made up of two or more professionals from different healthcare professions. The MDT usually include both health and social care professionals already involved in the person’s care.

Chronology of events

16. In April 2020, Mr Q moved to the Care Provider’s care home. The placement was partially funded by the Council to meet Mr Q’s needs under the Care Act 2014.
17. From January 2022, concerns began to be identified and raised about a decline in Mr Q’s weight. Miss K said she questioned the Care Provider about this change, but she was not satisfied it was being monitored and addressed. The Care Provider did however consult with Mr Q’s doctor and made a referral that month for him to receive SALT.
18. In March 2022, the Care Provider made another referral for Mr Q to receive SALT. The previous referral was not accepted due to capacity issues with the therapy provider. The second referral was declined for capacity reasons also.
19. In mid-May 2022, the Care Provider completed a CHC assessment. it accepts this was completed incorrectly.
20. In late June 2022, the Care Provider made a third SALT referral. It gave a detailed account of Mr Q’s weight history and flagged the matter as urgent.
21. In the morning of a day in mid-July 2022, the Care Provider noted a decline in Mr Q’s health. It measured Mr Q’s vital signs (including oxygen saturation levels) and contacted his medical practice to report the change in his health and get advice. Mr Q’s doctor was unavailable to receive the update, though it was confirmed he would attend the care home and assess Mr Q in the afternoon.
22. At midday, the Care Provider’s nurse checked Mr Q’s health. It was noted that his health had stabilised with his oxygen saturation levels and body temperature returning to normal. Three hours later, Mr Q’s doctor assessed him and recorded a normal oxygen saturation level. The doctor prescribed a course of antibiotics for Mr Q, believing he may have had a chest infection. The prescription was sent electronically to a pharmacy to be processed for collection.
23. In the early evening, the Care Provider’s nurse visited Mr Q and noted his vital signs as being in the ‘normal range’. The records show Mr Q’s oxygen saturation level continued to show signs of improvement compared to earlier in the day. Also, the Care Provider says Mr Q was observed as being comfortable and taking fluid and nutrition. Later in the evening, Mr Q’s observations found his vital signs had again worsened and so the Care Provider called for paramedics to attend. Mr Q was later admitted to hospital in the early hours of the next day.
24. At the end of July 2022, Mr Q left hospital and returned to the care home. The hospital records identify the diagnosis causing Mr Q’s admission and how his care should be managed. Mr Q was also referred to dieticians due to his weight loss and being at risk of malnutrition.
25. In early August 2022, Mr Q died at the Care Provider’s residential care home.

My assessment

Weight decline and SALT

26. On admission into residential care, Mr Q weighed 64kg. The Care Provider recorded his weight routinely using a Malnutrition Universal Screening Tool (MUST). On Mr Q’s admission to hospital in July 2022, Mr Q weighed 45kg. Miss K says this decline was not monitored by the Care Provider to inform necessary referrals and changes to his care and treatment.
27. Ultimately, where health concerns are identified, the Care Provider should work in partnership with other healthcare professionals to ensure suitable care and treatment is provided. The MUST also sets out a clear scoring system in relation to assessing weight loss and what action, if any, should be taken. The available evidence shows the Care Provider taking a proactive approach to meet Mr Q’s needs. In particular, the Care Provider has correctly sought medical advice, consulted Mr Q’s doctor and actioned referral recommendations. Mr Q’s medical practice provides face to face doctor visits to the care home. Further, the medical practice has confirmed its that Mr Q’s weight loss has been noted by the GP on many occasions. When making a SALT referral, the Care Provider has provided a substantive history detailing Mr Q’s weight and the concerns identified. The MUST for Mr Q was appropriately used and followed. I consider this shows the Care Provider having effective oversight over Mr Q’s weight, as well as recording necessary information.
28. I recognise Miss K wants to know how Mr Q came to be assessed as malnourished while in residential care. However, the evidence presented to me shows Mr Q’s health was in decline which is consistent with weight loss. His weight was being monitored with input the from his doctor. As identified, Mr H had difficulty swallowing which required SALT to help him, I have not seen any complaint put forward or evidence which supports that Mr Q’s nutritional needs were not being met. There is no evidence of fault by the Care Provider.

Care and treatment before hospital admission

29. Central to Miss K’s complaint is the Care Provider’s care and treatment of Mr Q shortly before he was admitted to hospital. The records kept by the Care Provider outline Mr Q became unwell in one morning in July 2022. The Care Provider said it took Mr Q’s heart rate, blood pressure, oxygen saturation levels and temperature. It then contacted his medical practice to take advice which confirmed it would assess Mr Q during the doctors round of the care home. Miss K says the Care Provider never told Mr Q’s doctor that his oxygen saturation level were dangerously low. In Miss K’s view, had this information been given, it would have resulted in quicker medical intervention and Mr Q’s not being caused harm.
30. The evidence I have reviewed shows the Care Provider did tell Mr Q’s medical practice of his vital sighs, including oxygen saturation levels. However, Mr Q’s doctor was not available to speak to the Care Provider which is why his oxygen saturation levels were not replayed directly beyond the medical practice’s reception team. The reception team told the Care Provider that a doctor would visit to review Mr Q’s condition and that he be monitored until then. Mr Q’s doctor later visited and noted improved oxygen saturation levels in the early afternoon. Mr Q’s vitals are recorded as also being normal in the early evening. However, by the late evening, Mr Q’s vitals dropped again and the Care Provider called paramedics. He was taken to hospital in the early hours of the next day.
31. I recognise Miss K believes paramedics should have been called when Mr Q’s vital signs showed a decline in his oxygen saturation levels. However, it did contact Mr Q’s medical practice to seek advice on information it had gathered. Mr Q was health was overseen in line with the advice received. Each person's care and treatment needs and preferences should be assessed by people with the required levels of skills and knowledge for the particular task. In my view, the Care Provider justifiably acted on the reliance that Mr Q’s doctor would attend and was best placed to evaluate the situation. It should be noted that Mr Q’s doctor did not see fit to admit him to hospital when visiting him in the afternoon. Once a further decline in Mr Q’s health had been identified, the Care Provider took action so he could receive suitable care and treatment. I have not found any evidence of fault, or the Care Provider falling short of the CQC’s Fundamental Standards.
32. In addition, the day before Mr Q was admitted to hospital, he was seen by his doctor. The Care Provider’s nurse reviewed how Mr Q was feeling later in the day and contacted his doctor for medical advice. The care records show that Mr Q’s doctor suspected he may have a chest infection and so prescribed antibiotics late afternoon. Ten hours later Mr Q was admitted to hospital. Miss K complains Mr Q was not provided with the antibiotics. However, prescriptions need to be processed and collected. The timeline did not allow for this to be done before Mr Q was taken to hospital. There was no fault by the Care Provider.

Provision of oxygen on discharge

33. In addition, Miss K complains the Care Provider failed to give Mr Q oxygen when he returned from hospital. She explains this was a condition of discharge. I have read the forms and other written information provided from the hospital to the Care Provider. This states that Mr Q no longer needed oxygen. Further, it outlines arrangements for end-of-life care. There was no fault by the Care Provider.

Notifying family of health decline

34. In Miss K’s complaint to the Care Provider, she references three main areas where she feels Mr Q’s family were not informed about changes in his health. These areas include Mr Q’s weight loss, a developed itch and chronic coughing.
35. As I understand, there is a shared view by Miss K and the Care Provider that Mr Q’s wife visited the care home every other day. Further, that she could closely monitor changes in Mr Q’s health. The Care Provider says updates were provided to Mr Q’s wife. The evidence shows Mr Q’s weight loss was already information known to Mr Q’s immediate family and was being monitored and actioned so to provide necessary SALT. I have not therefore identified fault. Further, the Care Provider’s records show Mr Q’s coughing difficulties were relayed twice to his doctor who explained they would provide this information to the family. As I understand, Mr Q’s medical practice made attempts to contact Miss K using the contact information it held for her. I also note Miss K recognises in her complaints to the Care Provider that a nurse did not contact her to inform Mr Q had been taken to hospital and the reasons for this.
36. The Care Provider’s formal complaint responses to Miss K confirm there was no communication with Mr Q’s family about treatment for his experience of itching skin. The Care Provider accepts this information was not communicated to the family, though say it was of the understanding this was a known issue. Identifying fault is therefore not straightforward. In any event, I do not consider a lack of communication about this health problem resulted in Mr Q or his family suffering serious loss, harm or distress. I will not therefore explore this issue further. This is because Mr Q received suitable treatment.
37. I found the Care Provider consulted with those responsible for Mr Q’s medical care. I also consider Mr Q’s family were largely kept informed about his health which was necessary because of him lacking mental capacity. I have not seen any evidence to suggest the Care Provider fell short of its duty of candour.

NHS continuing healthcare

38. The Care Provider completed a CHC assessment and returned the necessary form in May 2022. It accepts this was completed by member of the Care Provider’s staff who was not suitable and that information provided about Mr Q was inaccurate. I therefore find fault. Miss K says Mr Q never received CHC funding as a result. The Care Provider also referred Miss K to the NHS to make a complaint about this. This was fault because carrying out the assessment is an administrative role of the Care Provider. The NHS is not responsible for information it receives, nor would it look into the actions of the Care Provider. I recognise that Miss K says Mr Q did not receive CHC funding due to the failings. I cannot say however whether Mr Q was eligible for CHC and therefore suffered loss because of the fault identified. Only a full CHC assessment can make a finding of eligibility. Miss K may wish to discuss my findings with the relevant ICB within the NHS to discuss the assessment and eligibility.

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Final decision

39. The available evidence shows the Care Provider sought suitable treatment for Mr Q and routinely consulted with his family and doctor on his health decline. We have not identified any fault by the Care Provider about the issues raised by Miss K in respect of his treatment. We did find fault with information the Care Provider provided to the NHS about Mr Q’s health needs. This was to inform his eligibility for NHS funding of his care needs. However, we cannot say whether Mr Q was eligible and therefore suffered an injustice.

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Investigator's decision on behalf of the Ombudsman