Summary: There is no evidence the care provider was at fault in the way it decided to manage Mrs A’s risk of falls although there were several conflicting factors to be weighed up. Continued investigation would not achieve any more for Mrs A.

The complaint

1. Mrs X and Mrs Y complain about the way the care provider prevented their mother Mrs A from walking with her frame for some time in the care home.

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The Ombudsman’s role and powers

2. 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)
3. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

4. I considered the information provided by Mrs X and the care provider. All parties had an opportunity to comment on an earlier draft of this statement, and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. Regulation 9 says “The care and treatment of service users must be appropriate, meet their needs, and reflect their preferences.” The guidance goes on to say “There may be times when a person’s needs and preferences can’t be met. In these instances, providers must explain the impact of this to them and explore alternatives so that the person can make informed decisions about their care and treatment.”
7. Regulation 11 says care and treatment of service users must only be provided with the consent of the relevant person. It says when a person is asked for their consent, information about the proposed care and treatment must be provided in a way that they can understand. It also says providers must not provide unsafe care just because someone has consented to care or treatment that would be unsafe.
8. Regulation 12 says that care and treatment must be provided in a safe way, which includes assessing the risks to the health and safety of the service user.
9. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
10. There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

Mrs X and Mrs Y have Power of Attorney for Mrs A’s property and finances.

11. A clause in the care provider’s contract says, “If the home is unable to provide the degree of care a resident needs …Shaw reserves the right to request a review of the resident’s placement at the home and this may result in the resident having to leave the home.”

What happened

12. Mrs A moved into the care home in April 2021. She had previously had a stroke and had lessened mobility as a result. The admission information completed by the home says that she needed the assistance of one carer for ‘sit to stand’, and one carer when she was walking with her trolley or 4-wheeled walking frame. Mrs X says her mother used to enjoy walking very much and wanted to stay active.
13. Mrs A was deemed to be at high risk of falls. After a hip fracture in September 2021 her mobility declined further, and she was also diagnosed with dementia. She had fluctuating capacity to make her own decisions. The care plan for October says she was no longer safe to use her trolley. Mrs X says this was removed from Mrs A’s room in March 2022.
14. A note in Mrs A’s falls risk assessment (as part of regular monitoring) for 12 August 2022 says, “(Mrs A ) has been buckling at the knees due to fatigue and is no longer safe to mobilise with a Zimmer. (Mrs A) will now be using the stedy with two carers and a sling”. Mrs X and Mrs Y points out that Mrs A had recently suffered from Covid, so fatigue was not surprising.
15. Mrs X says Mrs A’s Zimmer frame and recliner chair were removed from her room. She says her mother was confused as to why she was no longer allowed to walk and upset by the change. Mrs Y complained to the care provider’s operations manager on 29 August as she says she could not get a proper answer from the care home manager (she also complained about some other matters which the care provider resolved). She said, “The staff have said she isn’t steady and is not allowed to walk, even taking away her walking frame! I don’t know what evidence they have for doing this, for although she broke her hip last year I have not been notified of any falls prior to the removal of her frame. My point is that she would get stronger if they took the time to take her for a walk, even if it is only to the restaurant for her lunch or to and from her en-suite bathroom. It now seems the home are indicating they may not let her stay if she can’t walk, yet your staff are making sure she can’t walk.”
16. After some interim correspondence, the operations manager replied on 22 September. She said Mrs A’s mobility had been assessed by a team leader on 11 August and “During that assessment it became clear that two staff were required to mobilise your mother from her chair to the bathroom and back. Her Zimmer frame, a handling belt and a Sara Steady were all used during that assessment, and it is recorded that the Sara Steady was the only safe option at that time.” She added that Mrs A was unable to keep her legs straight during walking, that her knees were buckling underneath her and she had to be supported by staff to prevent a fall.
17. The operations manager said Mrs A had then been assessed on 14 September by an Occupational Therapist (OT) and a physiotherapist. She said “I can see from our records that the recommendations from both professionals were that there may be potential for rehabilitation however this would require two staff members to be present during all manoeuvres.”
18. Mrs Y remained unhappy and responded to the operations manager. She asked that her concerns about her mother not being allowed to walk were considered urgently as the longer she was unable to walk, the less potential there was for rehabilitation. She said as the Sara Steady required two members of staff to use it, couldn’t those members of staff have helped her mother walk instead?
19. The operations director wrote back to Mrs A in November. He said in his view the home had “provided an appropriate and proportionate amount of support for your mother’s mobilisation by taking a very cautious approach to aiding this with the use of the Sara Steady equipment.” He said while they sought to involve family members who held POA for health and welfare in the care planning, he understood that Mrs X and Mrs Y had POA for property and finance. Mrs X and Mrs Y say they believed from the contract clause which says “Any reference to the Resident will also include ‘… nominated carer, relative, properly authorised representative and/or advocate” that they were entitled to be involved in the decisions about Mrs A’s care.
20. Mrs X and Mrs Y moved their mother to another home. They say she is now walking with her frame and one member of staff.
21. Mrs X complained to the Ombudsman. She said that her mother received weekly physiotherapy after the assessment and Mrs A’s walking ability improved every time, but the care home staff would not assist her to walk in between those times as they said there were insufficient staff to assist.
22. The care provider says “Orchard Place does not accept residents who require 2:1 for mobility due to only have 1 waking night staff and therefore being unable to offer 2:1 support 24 hours a day. The only examples of this is when residents such as (Mrs A) deteriorate and we have no other option but to accommodate this until they can be found an alternative suitable placement that can meet their needs.” The care provider says the recliner chair was also removed from Mrs A’s room as there was insufficient space to accommodate that and the Sara Steady.
23. The care provider’s notes say that the physiotherapist discharged Mrs A after two visits as her difficulties with walking were “cognitive limitations not physical constraints”. However, Mrs X and Mrs Y have provided evidence from the physiotherapist that he visited Mrs A on four occasions, not two; that other physio and Occupational Therapy staff visited her more than a dozen times. Mrs X has an email from the care home manager dated 5 October confirming that “Orchard Place are able to assist the physiotherapist on a weekly basis, as requested by (the head physio).”

Analysis

24. It was not fault on the part of the care provider to take the safest course of action when Mrs A was seen to have become unstable in her walking ability. She was already deemed to be at high risk of falls. The care provider was acting within the regulations.
25. It was upsetting for Mrs A, and for her daughters, when she was unable to continue using her walking frame in between physio visits despite the understanding there was potential for rehabilitation. However, in this instance it was a matter for the care provider to make the decision although that did not meet Mrs A’s preferences.
26. In response to my draft decision, Mrs X and Mrs Y say they believe the decision to stop their mother walking was a significant one which required a documented best interest decision assessment. However, the Mental Capacity Act Code of Practice says (5.8) “For most day-to-day actions or decisions, the decision-maker will be the carer most directly involved with the person at the time.” In this context, while there was an assessment undertaken by the care home team leaders about Mrs A’s mobility and there was physiotherapy input, the frequent everyday decisions about her transfers were for the care staff to take.
27. There is an unexplained discrepancy between the information given by the care provider about the number of physiotherapy visits and the number confirmed by the physiotherapist himself. However, I do not see that discrepancy has any significance in the context of the investigation.
28. As Mrs A is now able to walk with her frame and a carer in her new home, it does not seem the period without using the frame on a daily basis has affected her ability although it is acknowledged that she was sometimes frustrated by not being always enabled to walk when she wished in Orchard Place.

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Final decision

I have completed this investigation. There is no evidence the actions of the care provider caused significant injustice to Mrs A.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman