Summary: We have upheld one of Ms X’s complaints about a failure to ensure one of her husband’s medicines was re-supplied. There was also poor-record-keeping in relation to the support Mr X required at hospital appointments. Mrs X has already had an apology from the Care Home which acted on behalf of the Council. We do not uphold complaints about a failure to understand Mr X’s needs, to obtain medicine for a skin condition or about poor communication. The Care Home has already taken appropriate action to remedy the injustice.

The complaint

1. Mrs X complained about her husband Mr X’s care in St Mary’s Care Centre (the Care Home) between July and December 2021. The Council arranged and funded Mr X’s placement. Ms X said:
1. There was a lack of understanding by care home staff about Mr X’s brain injury and his needs;
2. Her concerns and requests for a psychiatric assessment for Mr X were ignored;
3. Hospital appointments were cancelled as she could not accompany Mr X. This meant medication for his skin condition ran out as the hospital would not re-issue the prescription;
4. Anti-liver rejection medication was not given for five weeks;
5. Three injections (for migraine prevention) were delivered and went missing;
6. Communication with Mr X about coming home was inappropriate; and
7. The Care Home did not complete forms for the Department for Work and Pensions (DWP).
2. Mrs X said the Council and Care Home caused her and Mr X avoidable distress and an exacerbation of Mr X’s skin condition and placed his health at increased risk.

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The Ombudsman’s role and powers

3. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council/care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
4. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service and we use public money carefully. We do not start or continue an investigation if we decide any injustice is not significant enough to justify our involvement. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. The Council commissioned the Care Home to provide care for Mr X under powers and duties in the Care Act 2014. We can investigate the Care Home’s service.
7. We make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
8. 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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What I have and have not investigated

9. I have investigated complaints (a) to (f). I did not investigate complaint (g) because Mrs X confirmed Mr X did not lose out on any benefits and she resolved the matter with the DWP herself. Our investigations focus on the most serious issues where there an unremedied injustice because of fault. Mr X had no financial loss and the time and trouble to Mrs X of having to resolve the issue with the DWP is not significant enough to justify an investigation.

Complaint history

10. Below I set out a chronology of the complaint to explain why I have investigated complaints (a) to (f), even though they are late:

Date Action

November 2021 Mrs X complained to the Care Provider about the complaint in paragraph 1(f).

December The Care Provider replied. It suggested she might raise her concerns with Mr X’s social worker. The response went on to say if staff had felt there was any risk in relation to Mr X’s mental health, they would have assessed the situation and discussed it with the social worker immediately.

February 2022 Mrs X made a further complaint about points (a) to (e) when she became aware of missed medication upon Mr X’s return home. The Care Provider responded saying it had carried out an internal investigation about the matters she had raised and sent a report to Council B’s safeguarding team. The response went on to say it accepted there were some areas of concern and had set out how it would improve.

June Mrs X complained to us. We told her in July she needed to use all stages of the Council’s complaints procedure.

July-November The Council logged Mrs X’s complaint and sent Mrs X an email saying it would respond by the start of August. The Council asked the Care Provider to deal with the parts that related to their care of Mr X. The Council chased the Care Provider several times for a response. Mrs X also chased the Council.

March 2023 The Council’s response to the complaint said the Council felt the Care Provider was best placed to respond and it did so in December 2021 and February 2022. There were no issues relating to the social worker. Mr X had regained mental capacity and he wanted to return home.

August 2023 Mrs X contacted us having got an email from the Council about her complaint. The email said it would not progress her complaint because the Care Provider did not wish to engage further with the complaints’ process. We accepted her complaint for investigation.

11. Although some matters are late, I have investigated Mrs X’s complaints (a) to (f) because it appears she has not had a full response from the bodies concerned despite her reasonable attempts to get one. The evidence indicates Mrs X has not let matters rest and it appears there has been some delay by the Council.

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How I considered this complaint

12. I considered the complaint to the Care Home and Council and the responses, the complaint to us and documents in this statement. I discussed the complaint with Mrs X and considered information from her.
13. Mrs X, the Council and the Care Home 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

Relevant law and guidance

14. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42)
15. The Care Home is in a neighbouring council area. That council (I have referred to it as Council B) was responsible for safeguarding enquiries under section 42 of the Care Act 2014.
16. The law says an assessment of a person’s capacity to make a specific decision is needed where there is a doubt about their capacity.
17. An assessment of someone’s capacity is specific to the decision to be made at a particular time. 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?
18. The Deprivation of Liberty Safeguards (DOLS) framework protects people who lack capacity to consent to being deprived of their liberty in a care home or hospital and who are not detained under the Mental Health Act 1983. People are instead detained by a ‘standard authorisation.’ The care home or hospital applies to the supervisory body (a team in the local authority) which carries out an assessment to decide whether to approve the authorisation. A person cannot have a standard authorisation if they have mental capacity to consent to their care arrangements.
19. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the 2014 Regulations) set out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) issued guidance in March 2015 on meeting the regulations (the Guidance.) The Ombudsman considers the 2014 Regulations and the Guidance when determining complaints about poor standards of care.
20. Regulation 9 of the 2014 Regulations requires care and treatment to be appropriate, to meet a person’s needs and to reflect their preferences. Care providers should carry out an assessment of needs and preferences and design a care plan to meet needs and preferences.
21. Regulation 17 of the 2014 Regulations requires a care provider to maintain securely an accurate, contemporaneous and complete record of care and treatment and of decisions taken in relation to care and treatment.
22. Old guidance from the Care Quality Commission which is no longer in force advised care providers to retain care records for three years. In the absence of any current guidelines, we consider a three-year retention policy reflects good practice in the sector.
23. Regulation 12 of the 2014 Regulations says:
• a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
• care must be provided in a safe way including assessing risks to the safety of people using the service and doing all that is reasonably practicable to mitigate risks. Where equipment or medicines are supplied the care provider should ensure there are sufficient supplies to meet needs and medicines are managed safely. Guidance explains medicines should be given accurately and in line with the prescriber’s instructions and at suitable times to ensure the person is not placed at risk. Staff must follow policies and procedures about managing medicines and these should address supply and ordering, storage, preparation and dispensing, administration, disposal and recording.
24. The Care Home shared with me a copy of its medication policy and procedures which it has amended since Mr X was in the home. The revised procedures include a form for nursing staff to complete when a resident is being discharged and a form to list medication taken out when a resident is discharged or goes on leave. The procedures say staff must obtain, share and record accurate information about medicines when a resident moves in or is transferred.

What happened

25. Mr X had many conditions affecting his health including a traumatic head injury. He was in hospital before moving into the Care Home in the summer of 2021. The placement was commissioned by the Council. Mr X’s preference was to live at home. The Care Home requested a standard authorisation. See paragraph 18).

The Council’s records

26. The Council carried out a social care assessment in July 2021. The outcome was Mr X was eligible for social care and his needs could be met in a placement in the Care Home which is for adults who have complex needs including mental health problems.
27. The Council’s care and support plan said Mr X needed support to manage his medication and staff were to support him with all prescribed medication. The plan also described Mr X’s needs around mental health and emotional well-being and noted there had been some aggressions related to confusion, some disturbances in mood and hallucinations related to a brain injury.

The Care Home’s care records

28. The Care Home’s health care plans for Mr X said:
• He needed his medication to be ordered and administered as prescribed
• He had a steroid injection for a skin condition (Medicine A) once a fortnight and this needed to be kept in the fridge and administered for him. He had regular medication reviews by the specialist and had routine bloods taken every 3 to 6 months.
• He had moderate emotional and mental health issues with limited impact on others. There were occasional outbursts of physical aggression.
• He had some issues with expressing himself verbally.
29. A discharge letter from the hospital listed Mr X’s medication. It included Medicine A (once every two weeks on Friday.) It says “wife to supply.” The letter looks to be incomplete and the Care Home has not supplied the remaining pages of the letter. (There is no reference to the migraine injection on the discharge letter, in complaint (e) because this was not prescribed until September 2021 and so Mr X was not taking it in July when he first moved into the Care Home.)
30. An email from a nurse to the GP’s surgery in October listed Mr X’s medication for reordering including: Medicine A, Medicine B and Medicine C.
31. An email from the GP said Medicine A was hospital supplied.
32. In November, a social worker from the Council carried out an assessment of Mr X’s mental capacity to decide on his care and living arrangements. The outcome was he had capacity to decide where he wanted to live. The Council’s DOLS team therefore refused the Care Home’s request for a standard authorisation.
33. A nurse at the Care Home noted they had asked Mr X’s GP to refer him for a psychiatric review at the start of November. This was following a discussion with Mrs X where she reported Mr X had told her there were cameras in his bathroom.
34. Mrs X met with staff at the Care Home in November 2021 and discussed plans for Mr X going home. Mrs X was concerned about psychiatric symptoms (like paranoia) that she had observed in Mr X and about potential falls. Staff working with him noted they had not seen any paranoia and one member of staff expressed the view that Mr X’s mobility may improve in a familiar environment. Ms X also spoke to a member of staff on another occasion about what she would like to happen as regards Mr X coming home.
35. Another member of staff at the Care Home spoke to Mr X about going home. Their note of the discussion said Mr X said he wanted to go home ‘today’ and she had said he could if he wanted to and no-one could stop him. Mr X said he would stay as it was up to his wife. The member of staff suggested Mr X stayed there a bit longer to allow time to organise medicine and at-home support. Mr X said he was worried about getting stuck in the Care Home long-term and would speak to his wife.
36. The Care Home’s daily records said the social worker called to say she had asked for Mr X’s GP to review him before he was discharged from the Care Home.
37. A note in the Care Home’s records said a member of staff had given Mrs X all appointment letters ‘as she will sort it out.’
38. The Care Home’s diary has a handwritten entry at the start of December as a task for staff to chase up one of Mr X’s medication prescriptions (Medicine B). There is a tick next to it.
39. The Care Home’s medication chart for Medicine B indicates Mr X did not receive this medicine on the last five days at the Care Home because the Care Home had run out. It also indicates the same thing happened for three days in November 2021. I have no evidence about the administration of Medicine C because the Care Home cannot locate the medicine charts. However, the repeat prescription order record for August to November indicates the Care Home ordered more of Medicine C for Mr X.
40. The Care Home has records in August, October and December saying Mrs X took Mr X’s hospital letters with her as she was taking him to appointments.
41. The daily record (on 11 December) said Mrs X was unhappy because Mr X had not gone to his dermatology appointment. It went on to say staff had given her an appointment letter to attend a new appointment in February 2022.
42. The records indicate Mrs X spoke to Mr X’s GP directly about his health. Staff then had some contact with the GP who advised them to arrange a psychiatric review before he went home. Mr X still wanted to go home. No psychiatric review took place before he left the Care Home. The Care Home emailed the GP to ask if the psychiatric review could happen at home as Mr X planned to go home the same day. There is no record of the GP responding.
43. Mr X went home. The notes indicate Mrs X took his medication and appointment letters. There was no list of exactly what letters or which medication was given to Mrs X. The nurse who gave Mrs X the medication sent an internal email after the event to say she had given Mrs X “blister pack medication [and five other medicines]”). The nurse said she had later been told Mr X had not received Medicine B because the prescription had run out.
44. Mrs X later called the Care Home to say Mr X did not have some of his medication. The nurse checked the medicine cupboard and his night-time medication was still there. Mrs X came back to collect them.
45. The Care Home’s manager completed an investigation report following an instruction from Council B’s safeguarding team. I have summarised the findings below:
• Mrs X was not given all Mr X’s medication to take home. She was also given medication in a blister pack which was not usual medication. He should have received leave medication which would have had clear instructions.
• Medication that was removed was not signed out. This was against policy as all medication in and out must be accounted for.
• Mr X missed five days of Medicine B. This was vital and should not have been missed. He had also missed it for three days the previous month. Staff had again not chased up the repeat medication request.
• Mr X received his injection for his skin condition and this was prescribed.
• Diary notes indicate Mrs X had taken hospital appointment letters home and there was an entry saying Mrs X was taking him to the appointment on 18 November. Mrs X said in her safeguarding email to Council B that she had told a carer the day before that she wouldn’t be available to attend the appointment (in December). If this was the case, the nurse should have been told. There is no evidence this happened. It would have been difficult to arrange an ambulance or an extra member of staff to take Mr X at short notice.
• The nurse was under pressure to dispense the medication for Mr X to take home because Mrs X was agitated and angry.
• The policy could be clearer regarding discharge medication and there was no discharge procedure.
• Nurses should have completed an incident form regarding the medication.
46. The Care Home’s manager completed a safeguarding action plan at the end of December 2021 as a result of its investigation. The plan noted the following had been completed:
• A memo was sent to staff about revised procedures for leave/discharge medication.
• Introduction of a sign-out sheet for leave/discharge medication and an amendment to the medication policy.
• Staff nurse to receive training and reflective supervision/disciplinary – the nurse left the service so this could not be completed.
• Introduction of a new discharge policy.
47. The Care Home’s manager sent an email with her report (paragraph 45) and the action plan (paragraph 46) to Council B’s safeguarding team. The email explained there were some failings by the home and one medication was missed for five days.
48. In February 2022, the Care Home’s manager apologised in a letter to Mrs X for the failings she had identified.

Comments from Mrs X, the Council and the Care Home

49. The Council’s contact records include a note by an officer of a call with Mrs X. Mrs X said Council B did not proceed with investigating what happened about the migraine injection (complaint e). Mrs X said the Care Home had told her it did not know anything about the injection and then later said the injection had been returned to the company because Mr X no longer lived in the home. The Care Home told me it had no record of any discussions with Mrs X about the injection Mrs X said she usually took Mr X to appointments, but on one occasion she could not and she had asked a nurse two weeks before the appointment for staff at the home to take him. Mrs X also told me the delivery company told her the injection had been signed for by the care home. She provided me with a letter dated 24 September 2021 from Mr X’s consultant to his GP which sets out the prescription of the migraine injections. The letter refers to Mrs X being present at the clinic appointment where the consultant prescribed the injection.
50. Mrs X provided me with a delivery note dated 12 November 2021 at 07:50 from the company and a written description of the items delivered: the injection, instructions and a sharps box. The delivery note is not signed by a staff member and the signature box says ‘Covid 19’.
51. Mrs X told me she spoke to an agency nurse on the day she returned to collect Mr X’s medicine and the nurse showed her the medication sheet and this is how she knew Mr X had not received Medicine C for five weeks because it was not on the medication sheet.
52. The Care Home told me:
• Mrs X took Mr X to hospital appointments. It said he did not go to one appointment because staff were expecting Mrs X to take him and so they cancelled it and staff rearranged it. It disputed Mrs X told staff in advance that she could not go to a hospital appointment.
• It contacted the pharmacy about not providing Medicine B; this was the only medicine that had not arrived and the error was with the GP and/or pharmacy. It now used a different pharmacy which liaised with the GP if they could not source a medication. The pharmacy used at the time Mr X was resident did not do that)
• Mrs X had asked the nurse to hurry up and this placed pressure on her to get Mr X’s discharge medication ready quickly.
• There was no evidence that Mr X’s skin condition was exacerbated.

Findings

There was a lack of understanding by care home staff about Mr X’s brain injury and his needs

53. Mrs X’s view is that the Care Home did not recognise Mr X’s head injury caused psychiatric symptoms like paranoia and aggression because these were not observed during his stay. The Care Home’s care plans noted Mr X’s mental health history and how symptoms displayed, however, staff did not record they witnessed paranoia while he was in their care. I do not regard this as a failure to understand his needs. People may present differently to professionals from their family. This is not a failing by the Care Home. There is no evidence of a lack of understanding of Mr X’s brain injury or his needs. I do not uphold this complaint.

Her concerns and requests for a psychiatric assessment for Mr X were ignored

54. The GP recommended a review by the psychiatrist. The Care Home emailed the GP to ask if this could take place once Mr X went home. My provisional view is the Care Home took account of Mrs X’s concerns and acted on her request for a psychiatric assessment by contacting the GP to see if this could be arranged for when Mr X went home. The GP did not reply. As Mr X had mental capacity to decide to leave the Care Home, the Care Home could not insist that a psychiatric review took place before he went home. There was no legal authority to hold Mr X at the Care Home against his will and he was free to live any time he wanted to. Provisionally, the Care Home acted in line with Regulation 12 by liaising with the GP and there is no fault.

Hospital appointments were cancelled as Mrs X could not accompany Mr X. This meant medication for his skin condition ran out as the hospital would not re-issue the prescription

55. The Care Home told me Mrs X would accompany her husband to appointments. This appears to be in line with Mr X’s wishes and preferences and with Regulation 9 and there is no fault in the Care Home agreeing to this arrangement. However, there is nothing on Mr X’s care plans which sets this arrangement out. The failure to have a clear plan of care in relation to who was responsible for supporting Mr X to access specialist health care was fault. It is unclear how staff would receive feedback about the outcome of hospital appointments so that Mr X’s care plans could be reviewed and updated where necessary (for example, if the hospital changed the dosage or added or stopped a medicine). Records were not in line with Regulation 17 as they lacked detail.
56. There is a dispute about whether Mrs X told staff at the Care Home the day before the appointment or two weeks before that she could not attend. There is no written record of the discussion and so my view is it is unlikely to have taken place. It is more likely that Mrs X did not tell staff until the day before and therefore there was not enough time to arrange for him to be accompanied to the appointment or to arrange for hospital transport. My provisional view is the Care Home is not at fault.
57. The hospital discharge letter said Mrs X was responsible for obtaining Medicine A (the letter says ‘wife to supply’) and information from Mr X’s GP said the hospital was to supply it. So there is no fault by the Care Home which was not responsible for obtaining Medicine A. However, as I have set out in paragraph 55, the Care Home was at fault in not having a care plan for medication which stated who was responsible for obtaining this and what action to take if there was an issue with Mr X not having Medicine A.

Medication was not given for five weeks

58. This complaint concerns two different medicines: B and C. My findings are below.
59. Medicine B: On a balance of probability, Medicine B was not administered for five days in December and three days in November based on the available records. This was fault. Care was not in line with Regulations 9 or 12 and this was fault. The Care Home’s records indicate there was a shortage of Medicine B (it was on a shortage list). I would expect staff to have contacted the hospital and/or another pharmacy to obtain an alternative source. I cannot make findings against the GP or pharmacy as they are not bodies in our jurisdiction.
60. There is no evidence Mr X suffered any harm. The Care Home’s manager has apologised to Mrs X in a letter of February 2022 for its role in the matter. This is an appropriate remedy.
61. Medicine C: The Care Home cannot find copies of charts for Medication C. We expect care providers to have arrangements in place to retain care records for three years after a resident has moved out. The Care Home’s record-keeping practice fell short of expectations and this was fault. There is not enough evidence for me to conclude on a balance of probability that Mr X did not receive Medicine C. I am satisfied the Care Home re-ordered it and received it as it has provided me with relevant records to evidence this.

Three injections (for migraine prevention) were delivered and went missing

62. The available evidence indicates the Care Home had no role in obtaining this medication. Mrs X attended the hospital appointment where it was prescribed. The delivery note Mrs X has provided is not signed by a member of the Care Home’s staff. On a balance of probability I conclude the injection was delivered to the Care Home, but there is insufficient evidence to conclude what happened to it after it left the possession of the delivery driver so I cannot make a finding of fault. There is not enough evidence to conclude on a balance of probability that staff were handed the package because of the lack of a signature on the delivery note. And there is no information the Care Home can provide to say what happened.

Communication with Mr X about coming home was inappropriate

63. The Care Home’s records show several meetings in which Mr X’s discharge was discussed. Mrs X did not agree with Mr X coming home, but the Care Home had no way of preventing his discharge and staff gave him correct information about his rights. As a capacitated adult, he could choose where he wanted to live. I do not uphold this complaint.

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Final decision

64. I have upheld one of Ms X’s complaints about a failure to ensure one of her husband’s medicines was re-supplied. There was also poor-record-keeping in relation to the support Mr X required at hospital appointments. Mrs X has already had an apology from the Care Home which acted on behalf of the Council. I do not uphold complaints about a failure to understand Mr X’s needs, to obtain medicine for a skin condition or about poor communication. The Care Home has already taken appropriate action and so I am not making any recommendations.
65. I completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman