Summary: Mr C complains about the care provided at a care home and says the care home failed to follow the family’s request that Mr D should not be taken to hospital. There was fault in the care that was provided, the record keeping and the communication of the care home and this has caused an injustice to Mr D and his wife. The Council has agreed to apologise, to pay a small financial remedy and to implement service improvements.

The complaint

1. Mr C complains on behalf of his father-in-law, Mr D, who has died. Mr D received respite care at Willerfoss House (the Home), Withernsea, Humberside. Mr C says the care provided did not meet Mr D’s needs and that the Home failed to follow the wishes of the family regarding end-of-life care for Mr D.

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The Ombudsman’s role and powers

2. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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, sections 24A(1)(A) and 25(7), as amended).
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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)

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How I considered this complaint

6. I have discussed the complaint with Mr C. I have considered the evidence that he, the Council and the Home have sent, the relevant law, guidance and policies and any comments both sides have made on the draft decision.
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Law, guidance and policies

Care Quality Commission and fundamental standards

8. The Care Quality Commission (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.
9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The CQC has guidance on how to meet the fundamental standards which says:
• The care and treatment of service users must be appropriate, meet their needs and reflect their preferences (regulation 9).
• The care and treatment must be provided in a safe way for service users. This includes the proper and safe management of medicines (regulation 12).
• Any complaint must be investigated and necessary and appropriate action must be taken in response to any failure identified (regulation 16).
• The Home must securely maintain accurate, complete and detailed records in respect of each person using the service. (regulation 17)

Mental Capacity and Lasting Power of Attorney

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves.
11. A key principle is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
12. A Lasting Power of Attorney (LPA) is a legal document, which allows a person (the donor) to choose one or more persons (called attorneys) to make decisions for them, when they become unable to do so themselves. There are two types of LPA:
• Property and Finance LPA
• Health and Welfare LPA
13. An attorney can only make decisions on life-sustaining treatment on behalf of the donor if the donor has specifically stated in the LPA document that they want the attorney to have this authority.

Safeguarding

14. The Care Act 2014 and the Care and Support Statutory Guidance 2014 set out a local authority’s safeguarding duties. Section 42 of the Care Act 2014 says the local authority should start a safeguarding enquiry if an adult in its area:
• has needs for care and support;
• is experiencing, or at risk of, abuse or neglect and
• as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
15. The objectives of an enquiry into abuse or neglect include, among other things:
• establish facts.
• ascertain the adult’s views and wishes.
16. The Care and Support Statutory Guidance emphasises the importance of putting the adult at risk of abuse at the centre of the enquiry. ‘Making safeguarding personal’ means safeguarding should be person-led and outcome-focused.
17. The Guidance says the adult should always be involved from the beginning of the enquiry. The enquiry lead should ask the adult at risk what they would like the enquiry to achieve and how they would like to be involved. What happens as a result of an enquiry should reflect the adult‘s wishes wherever possible, as stated by them or by their representative or advocate (if they lack the mental capacity to engage with the process).
18. The Council’s own adult safeguarding policy says safeguarding is ‘person-led’ and ‘engages the person from the start, throughout and at the end of the process.’

Advance decisions to refuse treatment

19. There are various options to register advance decisions to refuse treatment.

Do Not Attempt Cardiopulmonary Resuscitation (DNACPR)

20. The DNACPR form is made by the person and/or their doctor or healthcare professional. DNACPR means if a person’s heart or breathing stops, the healthcare team will not try to restart it.

Recommended Summary Plan for Emergency Care and Treatment (ReSPECT)

21. The ReSPECT form is created through conversations between the person and a trained healthcare professional (GP or nurse). The aim of the plan is to record a person’s preferences and agreed realistic recommendation for emergency situations. The plan should stay with the person and allow health and care professionals to make immediate decisions if the person has lost capacity to participate in the decisions.
22. The ReSPECT form incorporates the DNACPR form but includes more information than a DNACPR as it records the person’s wishes in treatment and care.
23. The ReSPECT form must be signed by a clinician.
24. If a person lacks the mental capacity to make decisions about their treatment, then the ReSPECT conversation should include their legal proxy (if they have one) or family members.

Advance Decision to Refuse Treatment (ADRT)

25. An ADRT is a decision a person can make in advance to refuse a specific type of treatment at some time in the future. The treatments a person decides to refuse must all be named in the ADRT. A person can make an ADRT if they have the mental capacity to make the decision. ADRTs are legally binding if they comply with certain conditions.

What happened

26. Mr D was an older man who had health conditions which affected his mobility. He was admitted to hospital in December 2022. He was assessed as lacking the mental capacity to make decisions about his care and support needs and where he wanted to live. A best interest decision was made that he should move to a care home upon discharge from hospital. Nobody held a Lasting Power of Attorney for Mr D.
27. The Council’s social worker assessed Mr D’s needs for care and support and wrote a care plan. A physiotherapist also carried out a risk assessment and plan.
28. The documents noted:
• Mr D had declined rapidly in the past 6 to 8 weeks and was suffering from confusion and hallucinations.
• He was at risk of pressure sores if he did not transfer from bed to a chair or if he was not supported to change position.
29. Mr D was admitted to the Home on 30 December 2022. The Home wrote its care plan for Mr D. The Home carried out a pre-admission checklist and body map which noted a few areas of healing skin and a red sore.
30. The district nurse visited Mr D on 1 January 2023 and noted that Mr D’s right heel and bottom were slightly red and the colour did not return quickly when touched. The nurse said Mr D may need an airflow mattress. The nurse asked Mrs D whether Mr D had been mobile in the hospital and Mrs D said he had been ‘bedbound’. The nurse said she would make a referral to the occupational therapist. The nurse said the Home should continue to monitor the areas identified and the 3-hour positional changes.
31. The GP visited Mr D on 3 January 2023. The Home had asked the GP to visit Mr D as Mr D had sometimes been refusing to take his medication, he was very sleepy, was in low mood, the skin on his legs was dry and his feet had two sore areas. The GP said they would think about what treatment they would prescribe going forward, this may be in liquid form. The GP prescribed a cream to be applied to Mr D’s legs and feet.
32. The district nurse visited Mr D on 6 January 2023 as there was blood in Mr D’s urine.
33. The Home contacted the GP on 10 January 2023 as Mr D was becoming increasingly agitated and the current medication was not sufficient to calm him. The notes also said Mrs D ‘would like a ReSPECT form in place (not for resuscitation)’.
34. The nurse practitioner visited Mr D on 11 January 2023 and said Mr D had developed a cough and a temperature and they prescribed antibiotics. The notes said: ‘further actions by health care professionals’ to ‘complete RESPECT form when wife has completed.’ An airflow mattress was delivered for Mr D.
35. The Home contacted the district nurses and the GP on 13 January 2023 as Mr D would not tolerate being hoisted due to pain. This meant that they could not hoist him onto the airflow mattress which had been delivered.
36. On 14 January 2023 the Home noted a sudden deterioration in Mr D and abnormal breathing. The Home called 111 who sent paramedics and it was decided that Mr D should be taken to hospital.
37. Mr C emailed the Council’s social worker on 15 and 17 January 2023 and said:
• A ReSPECT form had been filled in which said Mr D was ‘DNACPR’ and should not be removed from the Home.
• The manager of the Home accepted the form and assured Mrs D that Mr D would not be moved.
• Mr D became ill on 14 January 2023 and staff and the paramedics were unable to find the form so Mr D was taken to hospital.
• Mr D had severe bed sores when he was admitted to hospital.
38. The social worker made a safeguarding referral to the Council’s safeguarding team.
39. Mr D died on 17 January 2023. The documents said the Council started a safeguarding enquiry on 28 April 2023, although the social worker made enquiries before that date.
40. The social worker rang the Home on 18 January 2023. The Home’s manager was not available, so the social worker spoke to a senior staff member, who had spoken to the Home’s manager about the ReSPECT form. The staff member said:
• The GP visited Mr D on 13 January and prescribed antibiotics for a chest infection. Whilst the GP was there the GP discussed the RESPECT form with Mrs D and the staff ‘about the GP doing a ReSPECT form in keeping with [Mrs D’s] wishes’ .
• Mr D was taken to hospital the next day and the ReSPECT form had not been issued or returned by the GP yet so the Home relied upon the previous ReSPECT form dated 16 December 2022 which said Mr D should be taken to hospital.
41. The social worker contacted the GP about the RESPECT form and the GP responded on 17 February 2023 and said:
• The form was completed by hand at the Home but needed scanning into the record so the GP took it to the surgery.
• The Home’s staff were asked to collect the form but appear to have forgotten to do so.
• There was a delay in scanning which meant the form was slow to get back to the Home.
• The Home was partially responsible as they forgot to collect the form.
• The GP had reminded staff to scan the forms in a timely manner.
42. Mr C contacted the Council on 25 February 2023 as he had heard nothing further about his complaint.
43. The social worker spoke to the Home’s manager on 3 March 2023 and they discussed the ReSPECT form. The manager said:
• She spoke to Mrs D about the ReSPECT form and discussed the form with Mrs D.
• The form was given to the GP on 13 January 2023, the day before Mr D went to hospital. The GP took the form for endorsement but Mr D was taken to hospital the following day before the ReSPECT form was returned to the Home.
44. The director of the Home emailed the safeguarding social worker on 8 March 2023 and said:
• Could she find out what the time lapse was between Mr D leaving the Home and his admission to the hospital ward? He said a vulnerable person would have skin breakdown if they spent a considerable time on a trolley with no pressure protection.
45. The social worker rang Mr C on 23 March 2023. The social worker’s note of the conversation said ‘[Mr C] insisted that the form had been given to the manager and not the GP’ and that Mrs D had the right to make this decision as she was Mr C’s next of kin. The social worker told Mr C that Mrs D had no legal authority to make the decision as she did not hold an LPA for health and welfare.
46. She said ‘[Mr C] did not understand the need of having the LPA as opposed to being next of kin when it comes to decision making’ and he cut off the call.

Safeguarding enquiry report – 10 April 2023

47. In the safeguarding enquiry report the social worker said the following in relation to the allegation of pressure sores:
• The Home’s manager said Mr D was admitted on 6 February 2023 (note: this is the wrong date) and had redness/pressure sores on his feet ‘which did not require district nurse input at that time.’ The district nurses ordered a pressure mattress which arrived the day before Mr D went into hospital.
48. In terms of the RESPECT form, the manager said:
• Mrs D had completed the form and discussed it with the manager.
• The manager gave the form to the GP ‘when he visited the care home the day before [Mr D] was admitted to hospital’ but Mr D’s condition deteriorated quickly on the following day and he had to be taken to hospital.
• The ReSPECT form that was on file was the previous form which said Mr D was for ‘ward care.’
• The social worker carried out a search with the Office of the Public Guardian which noted that Mrs D did not hold an LPA for Health and Welfare.
49. The Home also said in March 2023 that, as a sector it had been noted that if a vulnerable adult spent a significant time in ambulance then waiting in the hospital, they were at high risk of their skin breaking down from laying on a trolley with no pressure relief protection for long hours. So it could be that Mr D’s pressure sore had been acquired in hospital.

Mr C’s complaint – 23 May 2023

50. Mr C complained to the Council on 23 May 2023 and said:
• There were failures in the administration of medication for Mr D. Some of the medication had to be given at certain times but the Home failed to do this. Mr D often refused his medication and the Home did not try liquid medication or break up the tablets. The Home gave Mr D sedatives to calm him down and were advised by the ER nurses not to give him anymore.
• The Home failed to provide the appropriate skin care to Mr D even though he was not mobile and at high risk of skin sores. Mr D had significant skin sores when he was admitted to hospital. The Home then tried to blame the hospital for the pressure sores. Mr D was provided with an air mattress which was never used.
• The Home knew that a ReSPECT form had been signed which said that Mr D should not be taken to hospital. But, despite of this, the Home allowed Mr D to be taken to hospital.
• The Council failed to carry out a proper safeguarding enquiry into the concerns the family and the hospital had raised about the care provided. The enquiry was biased and not thorough.
• The Council failed to involve or keep Mrs D informed during the safeguarding enquiry.
• The social worker rang Mr C on 23 March 2023 to inform him of the outcome of the enquiry and continued to talk even though Mr C informed her that it was a difficult time for him to talk. The social worker said there was no case to answer despite not having carried out a proper investigation or ever involving the family. The social worker eventually agreed to ring back in two weeks’ time and never did so. She then accused Mr C of cutting of the call.

Council’s response – 29 August 2023

51. The Council responded and said:
• It upheld the complaint that there had been poor communication in the safeguarding enquiry. The Council did not inform Mr C nor Mrs D that it was starting a safeguarding enquiry and did not involve them in the enquiry. It was not clear whether the enquiry report was shared with them.
• It partially upheld the complaint that the enquiry was not thorough and said there was an expectation that the social worker spoke to Mr D’s family to establish the facts. The complaint investigator said the social worker tried to speak to Mr C on 23 March 2023 to clarify certain points but she was cut off. The social worker did not speak to Mrs D but the complaint investigator accepted that the social worker had been reluctant to speak to Mrs D because of her recent bereavement.
• It did not uphold the complaint that the social worker was rude during the conversation on 23 March. The social worker said Mr C had informed her he was on holiday but that it was okay to discuss the safeguarding enquiry. She said she spoke to Mr C appropriately. She did not ring back two weeks later as she had been advised to put the points in writing, but, by then Mr C had made his complaint and she was told to hold off sending the letter.
• It did not uphold any complaints about the care that the Home provided to Mr D.
• It offered Mrs D a distress payment of £250.

Information provided to the Ombudsman

52. In the letter of enquiries, I asked the Home to provide me with all the records it held for Mr D. The Home responded and sent me a few records but not all the records. I asked the Home again and it sent me all the records.
53. The care plan did not include skin care and the Home has not sent me a plan relating to Mr D’s skin or any requirements relating to repositioning. The record of multi-disciplinary contacts noted that the district nurse said the Home should ‘continue with 3 hourly positional changes.’
54. The repositioning chart for Mr D showed that the Home repositioned Mr D twice on 31 December 2022 and there was no record of repositioning on 1 January 2022. The record for 2 January 2022 said Mr D’s skin was ‘not intact’. On 2 January 2022 Mr D was repositioned 4 times. From 3 January 2023, the Home repositioned Mr D more frequently, in line with the recommendation that he should be repositioned every 3 hours.
55. The record said Mr D’s ‘skin not intact’ on 3 and 4 January. From 5 January 2023 the record said Mr D’s skin was intact. The ‘activities for daily living’ chart showed that Mr D was ‘pink in areas, sores on feet’ on 7 January 2023. The record on 10 January said Mr D was repositioned ‘due to redness on bottom’ but the skin was recorded to be intact. The record was left blank from 12 January 2023 onwards so it did not say whether the skin was or was not intact. But the record on 12 January said that cream was ‘applied to redness.’
56. The records showed, in line with the chronology above, that the GP visited Mr D on 6 January 2023. The nurse practitioner visited on 11 January 2023.
57. The MAR chart showed that Mr D had two medications which had to be taken at specific times of the day. The medications were given at the correct time of day until 11 January 2023. From that date, medications were not given because Mr D was sleeping.
58. There was one medication which Mr D was not able to swallow and the Home had contacted the pharmacy for a liquid medication instead. This was provided 3 times a day during the last 6 days of Mr D’s stay at the Home.
59. There was a prescription for a medication that would calm Mr D. The Home could give this medication ‘when required.’ The medication was administered 3 times during Mr D’s stay at the Home.
60. The Home confirmed that Mr D’s airflow mattress was delivered on 11 January 2023.
61. The Home also sent me a further response regarding the ReSPECT form. It said:
• The nurse practitioner had given Mrs D a blank ReSPECT form on 11 January 2023 which Mrs D was taking home to discuss with her family and then she would return it to the GP surgery herself. The Home was ‘never made aware that this had happened nor had we any contact from the surgery to tell us that a new ReSPECT form had been generated which is normal standard practice.’

Analysis

ReSPECT form

62. I have considered the Home’s communications and record keeping regarding the ReSPECT form in the days before Mr D was taken to hospital. Mrs D said she was assured by the Home’s manager that, once she had signed the form, Mr D would not be taken to hospital. Unfortunately, it is impossible to say what advice the manager gave to Mrs D as there was no record of the conversation and there were very few records about the ReSPECT form. The Home has also given different versions of events of what happened.
63. The Home’s manager told the social worker, during the safeguarding enquiry, that she spoke to Mrs D about the ReSPECT form and that Mrs D signed the form. The Home then gave the form to the GP on 13 January and the form had not been returned from the GP surgery when Mr D became ill.
64. This correlated with the GP’s and Mrs D’s versions of events. However, the dates did not match the records provided by the Home. There was no record that the GP visited Mr D on 13 January, but the records showed that the nurse practitioner, from the GP surgery, attended on 11 January 2023. Of course, it may be that there was poor record keeping on 13 January 2023 and the GP attended but then this would be, in itself, fault.
65. In its response to the Ombudsman the Home said the nurse practitioner spoke to Mrs D on 11 January 2023 and gave her a copy of the form to fill in. The Home said it had no involvement with the ReSPECT form and knew nothing about it.
66. It is difficult to say exactly what happened. From all the information I have read, it is likely the form was taken to the GP surgery on 11 January and the Home was aware of this. Either way, there was poor communication and record keeping about the ReSPECT form and there was fault in that respect.
67. I agree that it would have been good practice for the Home to chase the GP when the form was not returned. However, I cannot say, on balance, that there was fault in the Home’s actions regarding the ReSPECT form on the day that Mr D was taken to hospital. The ReSPECT form had to be signed by a health practitioner in conversation with the person or their family. Unfortunately, the Home had not yet received the signed form from the GP when Mr D became ill. Therefore the Home followed the advice of the paramedics which was that Mr D should go to hospital.

Care provided

68. I have investigated the skin care and pressure sore prevention care that was provided to Mr D during the time that he was at the Home. Mr D had been assessed as being at risk of pressure sores while he was in the hospital, before he moved to the Home.
69. I would therefore have expected there to be either a separate assessment and care plan for pressure sore prevention/skin care or for this to be included in the overall care plan but there was no reference in the care plan to the risk of pressure sores or the need to reposition Mr D to prevent the sores. This was fault. I appreciate that it may be that the Home has not sent me everything. But, on the records the Home has sent me, there was fault.
70. I note that the district nurse referred to the requirement that Mr D should be repositioned every 3 hours and that this should continue. This suggested that there was a pressure prevention plan in place already when the nurse visited but it was not properly recorded. I have worked on the basis that Mr D had to be repositioned every three hours, as advised by the district nurse.
71. The records showed that the Home failed to follow this advice in the early days of Mr D’s stay at the Home. Mr D was only repositioned twice on 31 December 2022, there was no record of repositioning on 1 January 2022 and on January 2022 Mr D was repositioned only 4 times. This was fault. The prevention of pressure sores is crucial when a person is at risk like Mr D was.
72. I accept that the Home may say that it repositioned Mr D more frequently but failed to record it. That may be the case but either way there was fault. The Home had a duty to follow the advice/care plan and a duty to record that it did so. The importance of record keeping cannot be understated. Without records it was impossible for staff to know whether Mr D had been repositioned sufficiently to avoid pressure sores.
73. The airflow mattress was delivered on 11 January 2023, and not the day before Mr D went to hospital (13 January) as the Home previously told the social worker. The Home sent an email on 13 January 2023 stating it was unable to hoist Mr D onto the mattress as he was in too much pain so I agree there was a delay in the Home receiving the mattress and taking any action regarding the mattress.
74. In terms of medication, the MAR chart showed that the time sensitive medication was provided at the correct times during most of Mr D’s stay. I note the deterioration in Mr D’s condition in the last days of his stay when he slept frequently.
75. Mr C also complained that the Home was giving Mr D medication to calm him down too frequently. I find no fault in that respect. The GP had prescribed this medication to be used ‘as required’ and the Home only gave the medication 3 times during Mr D’s stay which did not seem excessive.

Safeguarding enquiry

76. The CASS Guidance emphasises the importance of putting the person at risk at the centre of the enquiry. And, if the person lacks the mental capacity to engage with the enquiry, then their representatives or family should be at the centre of the enquiry.
77. The Council says it did not contact Mrs D as she was recently bereaved so it chose to involve Mr C instead as he had made the complaint and represented the family. I find no fault in that respect.
78. However, there was fault in the Council’s failure to put the person at the centre of the enquiry.
79. The Council should have involved Mr C from the outset of the enquiry. It should have told him it had started an enquiry and what the timescales and process were. It should have asked him what the family wanted to achieve from the enquiry and it should have spoken to him to listen to the family’s version of events. It should have formally informed him of the outcome of the enquiry. None of this happened and that was fault.
80. As far as I can see, the social worker rang Mr C once, on 23 March 2023 where she explained, incorrectly, that there was no fault in the Home’s actions on the day that Mr D was taken to hospital because Mrs D did not hold an LPA for Mr D.
81. I cannot say whether there was any fault in the way the social worker spoke to Mr C on that day as I accept that there may have been miscommunication and there is not enough evidence for me to say there was actual fault. However, there was fault in the Council’s communication overall during the safeguarding enquiry. The family was not put at the centre of the enquiry.
82. I also uphold Mr C’s complaint that the enquiry itself could have been more thorough. The investigation consisted, as far as I can see, of the social worker checking the LPA status and asking the Home’s manager what had happened. There was no evidence that the social worker read any of the records, care plans or any other documents to verify what the manager said. This was fault. A proper enquiry should consider all the evidence and I cannot see that this happened in this case.
83. Also, although I agree, on balance, with the Council that there was no fault in the Home calling the ambulance when Mr D became ill on 14 January 2023, the Council’s report was not quite correct in blaming the lack of LPA for the problem. The ReSPECT form would always need a signature from a clinician, even if Mrs D had held an LPA for health and welfare for Mr D.

Injustice and remedy

84. Mr D has suffered an injustice as a result of the fault, particularly in relation to the skin care.
85. The aim of the Ombudsman’s remedy is to put the complainant into the position they would have been if the fault had not occurred. Unfortunately, as Mr D has died that is not possible.
86. However, I do not underestimate the distress caused to Mrs D as she was concerned about the care Mr D received and was affected by the Home’s poor communication and record keeping regarding the ReSPECT form and the failures in the safeguarding enquiry.
87. I therefore recommend that the Council apologises for the fault. I note that the Council has offered Mrs D £250 which is in line with the remedy the Ombudsman would recommend. I therefore do not recommend an additional financial remedy.
88. I also recommend the Council reminds relevant staff of considering all available evidence when carrying out a safeguarding enquiry. The Council should also remind the Home of the requirement to include skin care and pressure sore prevention in the care plan.

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Agreed action

89. The Council has agreed to take the following actions within one month of the final decision. It will:
• Apologise in writing to Mrs D and Mr C for the fault.
• Pay Mrs D £250.
• Remind relevant staff of considering all available evidence when carrying out a safeguarding enquiry.
• Remind the Home of the requirement to include skin care and pressure sore prevention in the care plan.

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Final decision

90. I have completed my investigation and found fault by the Council. The Council has agreed the remedy to address the injustice.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman