Summary: Mrs X complained about the quality of care the Council’s commissioned care provider, the mews care home provided to her late aunt. We find the Council was at fault. This caused significant distress to Mrs X and her family. The Council has agreed to make several recommendations to address this injustice caused by fault.

The complaint

1. The complainant, Mrs X, complains about the quality of care the Council’s commissioned care provider, [the mews care home] provided to her late aunt. She said the care home:
• neglected her aunts care needs;
• stole her aunt’s jewellery; and
• lied to the family about circumstances that occurred on the day her aunt passed away.
2. Mrs X said this has had a devastating impact on the family.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. We normally name care homes and other care providers in our reports. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
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 spoke with Mrs X about her complaint. I considered all the information provided by Mrs X and the Council.
9. Mrs X and the Council now had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
11. Regulation 9 says the care and treatment of service users must be appropriate, meet their needs and reflect their preferences.
12. Regulation 10 says care providers must treat all service users with dignity and respect.
13. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
14. Regulation 17 says care providers should “maintain securely” records and should have “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”.

Summary of the key events

Assessment and care plan

15. The care home completed a care plan and assessments for Mrs X’s aunt, Mrs Y. It was noted that:
• Mrs Y had chronic obstructive pulmonary disease (COPD) and required oxygen;
• morphine was available for Mrs Y when other methods to address her breathlessness had failed;
• when Mrs Y felt she could not breathe, a nurse was to observe respiration and anxiety levels. The nurse was to work with Mrs Y to focus on her breathing until she regained her breath. If this was not successful, a PRN nebuliser was to be utilised. If this did not work, morphine could be used; and
• Mrs Y requested her bedroom door be kept open when she was using the commode due to her being breathless.
16. The care plan stated:
• Mrs Y’s breathing had deteriorated to the point where any exertion made her very breathless. Therefore, she required the commode placed next to her bed and needed one member of staff to assist with transferring; and
• Mrs Y could independently use the commode.

The care notes

17. On the 25 June 2023, it was noted that:
• Mrs Y had asked to use the toilet. She was transferred to the commode. But as she was breathless, she requested the PRN nebuliser and morphine. This was provided;
• Mrs Y complained of abdominal pain when on the commode and the nurse gave her 500mls of paracetamol;
• the nurse told Mrs Y they needed to administer medication to another patient;
• the pendant alarm went off. A staff member checked on Mrs Y at 14:11 and she was content;
• a staff member checked on Mrs Y at 14:11 and she appeared as if she was dosing on the commode;
• a staff member checked on Mrs Y at 14:25 and she was unresponsive;
• Mrs Y passed away at approximately 14:15; and
• Mrs Y’s son and sister were contacted.
18. On the 26 June 2023 it was noted that two staff members had removed some jewellery from Mrs Y's room. This was noted as three gold rings, one watch, one bracelet and one necklace. It was noted the police had taken a picture stating they would inform the family.

The complaint to the Care Provider

19. Mrs X complained to the Care Provider and said:
• there were inconsistencies of events leading up to Mrs Y’s death. This was in relation to who was present at the time and why she was left on the commode by herself; and
• one of Mrs Y’s rings were missing.
20. The Care Provider investigated the concerns and said:
• they had spoken to all the staff on duty to gain their account of what happened on the 5 August 2023;
• there were no inconsistencies, and all staff reported the same account;
• Mrs Y was her normal presentation on the morning, and she asked to go on the commode;
• Mrs Y was left to sit on the commode unattended as per her normal routine. The door to her room was closed to maintain her dignity;
• Mrs Y had access to the nurse call system. Staff reported going to check on her but she appeared to be dosing. They said this was not unusual for Mrs Y as she would often sit on her commode to assist with her breathing;
• they had been unable to establish the last time Mrs Y was seen wearing the ring or if she was wearing it on the day she passed away;
• they failed to record the death of Mrs Y to CQC in a timely manner. They said they will carry out a reflective practice;
• staff will be reminded to log, photograph and advise management if there are jewellery of any items of value left in a resident’s room or on their person;
• there was no conclusive evidence to suggest the ring was on Mrs Y’s person on the day she passed away. All jewellery was recorded and photographed in the presence of police officers;
• the ring(s) that were collected were believed to be those that belonged to Mrs Y;
• it’s the policy of the home that any valuable property be either taken home by family members or stored in the safe. Alternatively, if declared to the home on admission and valued at £500 or less, this would be covered by the home’s insurance. Items valued at above £500, it is advised the resident or family take out their own personal insurance; and
• as a result of the complaint, they have now put in place a more robust system of recording belongings when new residents are admitted to the home. This is a photograph of all belongings, signed and dated by the resident/family member and care home staff.

Analysis- was there fault by the Council causing injustice?

21. The care plan noted Mrs Y could use the commode independently. But the assessment noted if Mrs Y felt she could not breathe, a nurse was to observe respiration and anxiety levels. This is followed by the agreed medication detailed in paragraph 15.
22. The notes state on the day Mrs Y passed away, she was breathless and had requested her medication. It was noted she was then left on the commode by herself. As stated in paragraph 21, when Mrs Y felt she could not breathe, a nurse was to observe respiration and anxiety levels. Therefore, I consider the Care Provider to be at fault for not staying with Mrs Y. This is not in line with regulation 9. There is no evidence to suggest Mrs Y regained her breath before she was left alone. This is also not in line with regulation 12 as the Care Provider did not complete a risk assessment or update the care plan to ensure the actions it was taking were appropriate to safely meet Mrs Y’s needs.
23. The notes stated due to the pendant alarm, Mrs Y was checked on at 14:11 and was content. The Care Provider said the pendant alarm referred to the nurse call bell. But then another note states at 14:11 she was seen dosing on the commode. Mrs Y was then checked at 14:25 where she was found unresponsive. Given how much the care plan details how breathless Mrs Y was and the fact she was breathless when going onto the commode and has used the pendant alarm to call for assistance, we would have expected the Care Provider to have checked on Mrs Y properly. This is fault and not in line with regulations 9 and 12.
24. There is evidence of further fault. The Care Provider said the door to Mrs Y’s bedroom was closed to maintain her dignity as she was on the commode. But the assessment stated Mrs Y had requested her bedroom door be kept open when she was using the commode due to her being breathless. This is not in line with regulations 9 and 12.
25. As there is fault in this case, we have to consider the injustice. Had the fault not occurred, we cannot say what would have happened to Mrs Y. But this fault has caused Mrs X and her family significant distress. This fault also meant Mrs Y did not get the care specified in the care plan/assessment.
26. The Care Provider used Mrs Y’s mobile to call her son, Mr Z, to inform him Mrs Y had passed away. They said this was because they could not find his details on their computer. We recognise that the Care Provider has acknowledged this was not best practice and said they have carried out a lesson learnt session since. But this did cause significant distress to Mr Z.
27. Mrs X said the Care Provider moved Mrs Y onto her bed after she passed away. The Care Provider told us staff do not normally move residents once they have passed away especially an unexpected death. But on this occasion as Mrs Y was sat on the commode in her room, staff felt it was undignified for her to be seen by her family and moved her to her bed. The Care Provider said they did not want to cause the family more distress. While I understand the family’s concerns, I consider the Care Provider was acting in Mrs Y’s best interests and in line with regulation 10.
28. Mrs X said the care home lied to the family about the circumstances leading up to Mrs Y’s death. As part of the care homes investigation, they took statements from staff and said subsequent discussions were in line with what was recorded on the system. They said there were no inconsistencies. But the Care Provider said the original statements had gone missing and they were not able to locate them. This is fault and not in line with regulation 17. This caused further distress and uncertainty to the family.
29. Mrs X told us one of Mrs Y’s rings has gone missing. She said the Care Provider sent them a ring that did not belong to Mrs Y. The Care Provider’s investigation concluded all jewellery was recorded and photographed. They said they had no conclusive evidence suggest the ring was on Mrs Y’s person on the day she passed away. Paragraph 20 sets out the Care Provider’s policy.
30. The notes stated on the 26 June 2023, two staff members removed some jewellery from Mrs Y’s room. This included the ring that Mrs X said has gone missing. The Care Provider noted police had taken a photograph and they would inform the family. Mrs X told us the police told them this was a lie and said the jewellery had already been removed before their arrival.
31. We cannot say the Care Provider did steal the jewellery and this is a matter for the police. The Care Provider had a procedure for recording valuable items and there was no fault in the way this procedure was implemented. As a result of the complaint, the care home has introduced a more robust system of recording residents’ belongings. This includes photographs of all belongings including any jewellery. This is to be signed and dated by both residents, or family members and care home staff. This is the appropriate action, and we cannot achieve another outcome as there is no independent evidence to make a balance of probability finding about the jewellery.

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Agreed action

32. 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 I found fault with the actions of the Care Provider, I have made recommendations to the Council.
33. Sadly, it is no longer possible to remedy the injustice to Mrs Y as she has died. To remedy the injustice to Mrs X caused by fault, within one month of the date of my final decision the Council has agreed to:
• write to Mrs X and Mr Z with an apology that takes account of our published guidance on remedies and accepts the findings of this investigation;
• pay Mrs X £500 to acknowledge the distress caused to her by the faults identified in this decision.
34. Within three months of the final decision and as part of its commissioning role the Council should ensure the Care Provider has reminded staff and if appropriate provided training about:
• the importance of where relevant risk assessing residents before changing care plans; and
• appropriate record keeping.
35. The Council should provide us with evidence it has complied with the above actions.

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Final decision

36. I have completed my investigation with a finding of fault causing injustice for the reasons explained in this statement. The above agreed actions provide a suitable remedy for the injustice caused by fault.

Investigator’s final decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman