Summary: Miss X complained about how a care home commissioned by the Council managed Ms Y’s care. We find the care home failed to keep complete records, causing uncertainty to Miss X. The Council has agreed to apologise, make a payment to recognise the uncertainty caused and act to prevent recurrence.

The complaint

1. Miss X complaints about the level of care Ms Y received in the final weeks of her life. Miss X says this has caused her real distress and upset.
2. Specifically, Miss X has said the care home:
• Failed to administer appropriate pain killers and morphine, as prescribed, which meant Ms Y was in unnecessary pain;
• Failed to treat a cigarette burn, leading to it becoming infected;
• Failed to properly investigate her allegation that Ms Y was roughly handled and thrown onto a bed;
• Had questionable practices, such as failing to provide a key to a patio door in Ms Y’s room and dressing her inappropriately for the weather;
• Lacked professionalism, as a member of staff delivered the news Ms Y’s health had declined with a smile on his face and refused to administer Covid tests Miss X had purchased; and
• Failed to alert the hospice when Ms Y entered end of life care.

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The Ombudsman’s role and powers

3. 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)
4. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
5. 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 3A is for complaints about care bought directly from a care provider by the person who needs it or their representative, and includes care funded privately or with direct payments using a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
6. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
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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How I considered this complaint

9. I considered evidence provided by Miss X and the Council as well as relevant law, policy and guidance.
10. Miss X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and policy

11. 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.
12. Regulation 9 says care and treatment must be appropriate and meet service users’ needs.
13. Regulation 10 says service users must be treated with dignity and respect.
14. Regulation 12 says care and treatment must be provided in a safe way for service users.
15. Regulation 17 says care providers should maintain accurate, complete, and contemporaneous records in respect of each service user.
16. In 2019, the National Institute for Health and Care Excellence (NICE) issued the clinical guideline ‘End of life care for adults: service delivery [NG142]’. This provides guidance for health and social care professionals on organising and delivering end of life care services. The guideline deals with providing care and support in the final weeks and months of life and the planning for this. It aims to ensure people have access to the care they want and need in all care settings. It also includes advice on services for carers.

What happened

17. I have summarised below some key events leading to Miss X’s complaint. While I have considered everything submitted, this is not intended to be a detailed account of what took place.
18. Following a dementia diagnosis and due to a lack of mobility, Ms Y moved into the care home.
19. Miss X has said that on arrival she noticed there was no key for the patio door in Ms Y’s room. She said she had concerns about this as a fire risk and asked staff for the key but was told it had been lost.
20. Miss X has said that during a visit in the summer, she noticed Ms Y had been dressed in a thick fleece despite the hot weather and was sweating and uncomfortable. Miss X says she reported this to staff, but the following day Ms Y was dressed in another thick fleece.
21. Miss X emailed the care home to raise this issue and it apologised and said it had reminded staff of the importance of appropriateness of dressing.
22. Miss X has also said Ms Y told her she was thrown onto her bed by a care assistant who was carrying out her personal care. Miss X has said she reported this to the manager who initially said this was likely down to Ms Y’s dementia distorting her view of reality but then agreed to remove the care worker from Ms Y’s care.
23. After having concerns Ms Y may be exhibiting symptoms of Covid, Miss X purchased Covid tests. Ms Y tested negative, but Miss X left tests in her room and asked staff to test her regularly. Miss X has said she checked in with Ms Y multiple times in the coming days, but no tests had been administered. Miss X said she asked staff why this was, but they simply told her they knew Ms Y did not have Covid but gave no further assurances.
24. Later, Miss X has said she noticed a wound on Ms Y’s knee. She says she reported this to the care home and was assured it would be investigated but she was never updated properly.
25. The care home’s records from this time show the wound had been identified as a cigarette burn. The records show this was monitored but no further treatment was needed, and no signs of infection were identified.
26. After Miss X was told Ms Y’s health was deteriorating towards end-of-life, she spoke to a friend who was connected to the local hospice, and they agreed to visit Ms Y in the care home. Miss X has said staff could not accurately inform them what pain relief Ms Y was receiving so the hospice advised them to administer pain relief 30 minutes before administering personal care to prevent pain. However, Miss X says the care home did not follow this advice, leaving Ms Y in pain when personal care was administered.
27. An email from the hospice to the care home shows the hospice made recommendations, but there is no specific reference to providing any particular pain relief 30 minutes prior to carrying out personal care.
28. Ms Y passed away shortly afterwards.
29. Miss X complained to the care home, explaining Ms Y had been there for around six months and had received some great care, but there were various issues Miss X had raised that she did not feel were taken seriously. Miss X provided a copy of an email she had sent to the CQC explaining her concerns, as set out in paragraph two, above.
30. The care home responded to Miss X’s complaint and explained:
• All patio doors have keys and can be opened on request. The care home said it was unsure why Miss X would have been told this was lost;
• It had reviewed emails regarding Ms Y being dressed inappropriately for the weather and was satisfied this had been dealt with at the time;
• It could not verify Miss X’s conversation with the manager regarding Ms Y being thrown onto the bed. However, it said there were no records of any bruising or anything else that would indicate rough handling. It explained the care manager moved the care assistant from delivering Ms Y’s care because of a clash of personalities between them and Miss X rather than any concerns around Ms Y’s welfare;
• Its policy was only to administer Covid tests to symptomatic residents. It said the staff constantly monitored residents, but Ms Y did not display any symptoms to warrant testing. However, it apologised for the lack of assurance Miss X had been given;
• Its staff had all been through end-of-life training to recognise when a person was in pain. It said it was confident Ms Y was given appropriate care;
• It takes prescriptions from health professionals and administers them in line with the directions given. It said the hospice had not prescribed any particular pain relief for Ms Y. It also said members of staff had assured it Ms Y was never left in pain;
• It is a nursing home who also provides end-of-life care, and it is not standard practice to refer to the hospice unless it needs special support. As Ms Y did not require a hospice referral, this was not made in her case;
• A staff member made giggling sounds when nervous but was not laughing at Miss X when delivering news that Ms Y’s health was deteriorating;
• It felt it had acted correctly in respect of the cigarette burn on Ms Y’s knee.
31. The care home said it was sorry Miss X was unhappy with the support provided but said it would use some of the points she had raised to improve the quality of care it was providing.
32. Miss X disagreed with the care home’s response to her complaint and asked it to reconsider. Miss X said the care home:
• Seemed to have given a stock answer rather than investigating her concern around the patio door key;
• Did not appear to take the matter it had dressed Ms Y inappropriately for the weather seriously;
• Not having records of her conversation with the manager about Ms Y being thrown onto the bed was concerning;
• Had refused to administer Covid tests despite her providing these;
• Had failed to administer pain relief that had been prescribed by the hospice;
• Was inconsistent in terms of whether or not it should have contacted the hospice to alert it Ms Y was receiving end-of-life care;
• Was unacceptable to dismiss the staff member’s giggling as nervousness when delivering news that a family member’s health was deteriorating;
• Did not take any action to treat the cigarette burn.
33. The care home gave its final response to Miss X’s complaint and explained:
• It had seen the patio door keys, so knew these had not been lost, but was sorry for any miscommunication;
• Agreed Miss X made a valid point about Ms Y being inappropriately dressed for the weather and agreed to communicate this to its staff;
• It takes allegations of abuse very seriously and has safeguarding measures in place. Miss X discussed with its manager that she felt staff had been rough with Ms Y and this appeared to be dealt with to her satisfaction at the time. It explained it could not comment on this any further as that manager had now left the care home;
• Its staff followed the relevant Covid guidelines while Ms Y was resident;
• Ms Y had received pain relief as prescribed to her;
• The care home does not generally involve hospice care unless there is a complex end-of-life situation;
• It was sorry for any upset caused by the way a staff member delivered the news Ms Y’s health had deteriorated;
• It had reviewed records which suggested Ms Y’s cigarette burn had been dealt with correctly.
34. In response to our enquiries, the Council has provided medical charts to show the medication Ms Y received in the final weeks of her life. It said Ms Y was on three different pain killers and was not observed to be in any pain. It explained it rarely requires hospice intervention to aid with end-of-life care and usually this only happens where someone’s needs are complex, and the home is failing to manage their pain. The Council said the hospice was only involved here as Miss X involved them herself directly.

Analysis

35. When considering complaints, if there is a conflict of testimony or evidence, we make findings based on the balance of probabilities. This means weighing up the available relevant evidence and basing our findings on what we think was more likely to have happened. Often this means we have to give most weight to documentary evidence and notes that exist over verbal testimony and recollections. Sometimes it is not possible to come to a finding, even on the balance of probabilities, where there is no independent evidence and both sides have differing views on the same events.
36. I have reviewed the available records from the time Ms Y was resident at the care home. These suggest the care home correctly administered the medicine and pain relief that had been prescribed to her. The notes also show Ms Y was consistently assessed to identify whether there was any additional pain to address. I have seen no evidence to suggest the care home was at fault here.
37. I have also seen notes to suggest Miss X contacted 111 for advice on managing Ms Y’s pain multiple times while visiting her at the care home. However, on each of these occasions the advice was to allow Ms Y to be monitored by the care home and for it to administer pain relief as already prescribed. It is clear Miss X had concerns about the pain Ms Y was experiencing, but I have seen no evidence of fault by the care home.
38. Miss X has said the hospice contacted the care home to prescribe pain relief 30 minutes before delivering personal care to Ms Y. I have reviewed the notes from the time and an email the hospice sent to the care home offering advice, but I cannot see Ms Y was ever prescribed any specific pain relief that was not delivered. For this reason, I could not find the care home at fault.
39. Ms Y suffered a cigarette burn while at the care home. However, the available notes suggest this was treated and monitored and I have seen nothing to suggest this was neglected and became infected. I appreciate this differs from Miss X’s recollections, but I have not seen any evidence to find the care home at fault here.
40. Miss X has said she has concerns around how the care home dealt with her report that Ms Y said she had been thrown onto her bed. I have looked through the daily records and care notes but cannot find any record of this incident.
41. The care home has accepted this was raised with the manager at the time and they discussed it with Miss X before agreeing there was no need to take further action. Without a record of the discussion that took place, or a note of Miss X’s concerns being added to Ms Y’s file, it is not possible for me to know with any certainty what was discussed or agreed at this meeting.
42. As Miss X does not appear to have followed up on her report until she made her complaint around eight months later, I think it is more likely than not that it was agreed there was no safeguarding issue to pursue. However the lack of records around this discussion amounts to fault and has caused uncertainty to Miss X, which is injustice.
43. Miss X has said she was told by care staff that the key to the patio door in Ms Y’s room was lost. The care home has said it has the key and is unsure why Miss X would have been told this. It has also said its usual process is not to leave the keys in the doors but to open them as and when requested.
44. Without a record of this conversation, there is nothing for me to rely on to say whose recollection is most likely to be accurate here and I cannot find the care home at fault.
45. Miss X has said on more than one occasion she found Ms Y dressed inappropriately for the weather. The care home has accepted this was the case and said it would remind staff to be mindful to choose weather appropriate clothes. This is an appropriate response, and I do not find fault with the way the care home responded to Miss X’s report here.
46. Miss X has said she was unhappy with the professionalism of a member of staff who delivered the news Ms Y’s health was deteriorating. The care home has apologised for any upset that would have been caused.
47. It is difficult to make any findings, even on the balance of probabilities, as to what the staff members intentions were here. So, while I understand this must have been highly distressing for Miss X, I find the care home’s apology to be a proportionate response.
48. Miss X has also said the care home failed to administer Covid tests she had purchased. The care home has said its practice at the time was to monitor residents and only administer tests if they displayed symtpoms. I cannot find fault with the care home where it has followed its usual processes. However, based on the balance of probabilities, I find it is more likely than not Miss X was not given this information in a clear and understandable way and this amounts to fault. This caused uncertainty for Miss X, which is injustice.
49. The care home has agreed it did not alert the hospice to Ms Y entering end-of life care, however it has said its staff is trained to deal with these situations and would only ask for hospice intervention where a resident’s circumstances were particularly complex. I appreciate Miss X feels the care home ought to have involved the hospice itself, but I could not find it at fault where it has followed its usual process.
50. Having looked through the available notes relating to Ms Y’s care, I find there is an inconsistency with how the care home recorded complaints from Miss X. I have noted, for example, a complaint recorded around purchasing cigarettes for Ms Y which was dealt with at the time. However, as set out above, the care home has agreed Miss X raised several other complaints that it feels were dealt with at the time, but the records do not reflect these. Failure to keep accurate records is fault and has created uncertainty, which is injustice.

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Action

51. When a council commissions or arranges for another organisation to provide services, we treat actions taken by that organisation as actions taken on behalf of the council and in the exercise of the council’s functions. Where we find fault with the actions of the service provider, we can make recommendations to the council alone. Here we have found fault with the actions of the care provider.
52. We recommend the Council carry out the following actions within one month of the date of this decision:
• Provide Miss X with a written apology for the uncertainty caused by the faults identified above. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Provide Miss X with a symbolic payment of £200 to recognise the uncertainty caused to her.
• Issue a written reminder to the care home to remind its staff to maintain accurate and complete records for all service users and to ensure information is given in a clear and understandable way.
53. The Council should provide us with evidence it has complied with the above actions.

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Decision

54. I find the care home at fault, causing an injustice to Miss X. The Council has agreed to my recommendations, and I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman