Summary: There was significant fault on the part of the Council’s commissioned care provider which caused considerable injustice to the late Mr X. The Council has acknowledged the failings by the care provider and overseen service improvements and will now make a payment to acknowledge the distress and anxiety caused to Mr X’s sister Mrs Y.

The complaint

1. Mrs Y (the complainant) says the Council’s commissioned care provider Roseberry Care Centres GB Limited, which runs the care home (Haythorne Place) where her late brother Mr X was resident, failed to care for him properly and he was admitted to hospital with severe constipation and pressure sores. Severe functional constipation led to gastric obstruction which caused his death.

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

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How I considered this complaint

6. I considered evidence provided by the Council and Mrs Y as well as relevant law, policy and guidance.
7. The Council and Mrs Y 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

Relevant law and guidance

8. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards.
9. Guidance on regulation 9 says providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be.
10. Regulation 12 refers to the responsibilities of care providers for the proper and safe management of medicines.
11. The guidance on regulation 13 says care and treatment must be planned and delivered in a way that enables all a person's needs to be met. This includes making sure that enough time is allocated to allow staff to provide care and treatment in accordance with the person's assessed needs and preferences. There should be policies and procedures that support staff to deliver care and treatment in accordance with the requirements detailed in the plan(s) of care.
12. The guidance on regulation 14 says providers must include people's nutrition and hydration needs when they make an initial assessment of their care, treatment and support needs and in the ongoing review of these. The assessment and review should include risks related to people's nutritional and hydration needs.Providers should have a food and drink strategy that addresses the nutritional needs of people using the service.
13. Regulation 16 says, “Any complaint received must be investigated and necessary and proportionate action must be taken in response to any failure identified by the complaint or investigation”.
14. A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)
15. Fluid thickness is categorized into levels using the IDDSI (International Dysphagia Diet Standardisation Initiative) framework, which ranges from Level 0 (thin) to Level 4 (extremely thick) for drinks.

What happened

16. Mr X, a man with learning disabilities, a history of mental illness and physical ill-heath, lived in the care home Haythorne Place since 2007 until his death in 2024. He was immobile and nursed in bed, with the assistance of two carers to transfer him and manage his continence and hygiene needs. As a side effect of medication, he suffered from constipation and his care plan required staff to monitor this and give medication as required. He could not eat or drink independently and was reviewed by the Speech and Language Therapy (SALT) Team.
17. At the beginning of June 2024 Mr X was taken ill and admitted to hospital with pneumonia. On his discharge back to the care home he was placed on a different wing (house 3) as the lift in his normal wing was not in use. Mrs Y agreed to this.
18. On discharge from hospital the level of Mr X’s drinks was advised to be increased to level 4 (extremely thick – 7 scoops of thickener). Mrs Y says his food thickness was also to be increased. She says when she visited Mr X the day after his discharge, she challenged the care staff about the thickness of Mr X’s drinks. She said the care staff told her they were level 4. She says two days later the same issue occurred and it became clear the care staff believed level 4 meant 4 scoops of thickener, not 7. The following day she was given a yoghurt to give to Mr X at dinner but again it was not the correct thickness. Mrs Y emailed the care home on 26 June asking for an urgent review as it was a serious matter.
19. Mrs Y met the home manager the following week and agreed for Mr X to be moved to another wing again. She emailed the manager afterwards and asked for the thickness levels and guidance charts she had obtained to be placed above Mr X’s bed. She pointed out that they “should be clearly visible for all to see” including agency and temporary staff. She also asked for an update on the manager’s investigation into what had happened on house 3.
20. On 29 July Mrs Y emailed the manager again asking for a response. She said her brother had been reviewed again by the SALT team. She said “I was present at the assessment and asked for the charts to be copied in colour and placed above his bed, as they are in hospitals. The copies are clear and visible for all to see”. She said she also had concerns that her brother had developed a pressure sore while on house 2, that it was not healing and he had been referred to the Tissue Viability Nurse as a result. She also said some items of his had gone missing while on house 2.
21. The manager emailed her with a copy of a letter dated 24 July (which she said had been sent then). The letter said the nurse on duty when Mrs Y had visited and raised her concerns had spoken to the care staff who had prepared the thickened fluids and shown her the correct number of scoops, which she said was 8 for level 4. The manager said “Guidance on the back of the thick & easy container indicates that level 4 Extremely thick is 8 scoops per 200ml”. The manager said the nurse advised the care assistant where “each resident IDDIS level information is kept. These are on display in each resident’s room along and available in each of the dining rooms.” She apologised for the distress this error had caused and said all staff were being instructed to complete the IDDSI training.
22. On 25 July Mr X was admitted to hospital. He had not passed any urine, which was causing concern. Mrs Y says the hospital staff told her he had a bowel blockage which caused bile to seep into his organs and so he had not passed urine. Mr X died on 10 August of severe functional constipation.

The complaint and the care provider’s response

23. Mrs Y wrote to the care provider on 21 October. She said there were multiple errors in the response she received in July. She said the dates for Mr X’s hospital discharge were wrong. The nurse had not told her when challenged that level 4 was 8 scoops, but the nurse said, “hospital advised 4”. Mrs Y said either way that was incorrect as level 4 for the brand of thickener used by Mr X was 7 scoops. She pointed out that there was a brand of the correct thickener on Mr X’s room but it had been prescribed for another resident. She asked which brand had been used as different brands required different numbers of scoops according to the level on the IDDSI chart.
24. Mrs Y said IDDS levels were not on display in Mr X’s room in house 3 and they were never displayed in house 4, contrary to the manager’s response. She said on one occasion she was told Mr X had been found with two medication patches, not one, and was told there would be an investigation. She said his bed extension had not been moved when he was and he was often found slumped over. She asked about his fluid and bowel monitoring charts for the relevant period. She asked what was the outcome of the safeguarding alerts which the hospital staff said they had raised in respect of Mr X’s condition, including his pressure sores and his blocked bowel.
25. On 4 November Mrs Y emailed asking for an acknowledgment of her letter. The manager replied that she had received the letter and added, “I have been very busy and will reply as soon as I can.” Mrs Y contacted the CQC.
26. On 15 November the regional manager wrote to Mrs Y about her complaint and apologised for the delay. She apologised for the error in dates on the first response. She acknowledged there were errors in the way Mr X’s thickener had been used as well as inconsistency in the recording charts. In respect of the pressure sore, she said the Tissue Viablity Nurse had advised staff on how to treat it and they were following that advice when he was admitted to hospital. She acknowledged Mr X had been found with two medication patches not one, but said the investigation had proved inconclusive; however, the home had raised a safeguarding alert and sought the GP’s advice. She also apologised that the bed extension had not been put in place.
27. Mrs Y asked for the complaints procedure. She said there remained discrepancies and unanswered concerns. She said in addition she still awaited reimbursement for the missing items she had reported in June.
28. The regional manager sent a copy of the complaints procedure and said she would arrange a refund for the missing items. She also said she had nothing to add to the previous responses as the safeguarding investigations were ongoing.

The Council’s response

29. At the time Mr X was admitted to hospital the home was already subject to an admissions embargo and an organisational safeguarding investigation by the Council.
30. The Council has provided details of the safeguarding investigations it conducted in connection with the incorrect use of thickener (raised by the CQC after contact from Mrs Y); the discovery of two medication patches (raised by the care home manager); and the concerns about faecal impaction, urine retention and pressure sores (raised by hospital staff).
31. In respect of the incorrect use of thickener, the investigation found there were inaccurate and/or missing records, poor communication between members of staff and between staff and family members.
32. In respect of the double medication patches, the investigation found poor recording on the MAR charts and loss of the 24-hour observation charts.
33. In respect of the faecal impaction, urine retention and pressure sores, the investigation found poor record keeping, failure to escalate concerns for clinical advice, some retrospective recording, lack of nursing care or oversight for Mr X when he was in urine retention.
34. The Council says despite ongoing safeguarding investigations, “the provider should have been able to tell (Mrs Y) what steps had been taken to investigate and mitigate all risks in relation to all the issues she raised”. It says “it is acknowledged that other residents living at Haythorne Place could have been at risk of poor practice around any of the complaint issues. The provider should have ensured proactively that staff were delivering care effectively and safely in all areas. This should have to been communicated clearly to (Mrs Y).”
35. The Council has also provided a chronology of the interventions it made following the safeguarding investigations. These include regular documentation checking, spot checks and competency checks, checks of incident reports. It says it continues to work with the care provider on “targeted areas including documentation, infection prevention and control, activities and stimulation for residents, staff training and competencies.”. It says the number of safeguarding concerns has decreased significantly since Mr X’s death.
36. The Council also expresses its concern about the manager’s response to Mrs Y that she had been very busy at the time of the complaint. It has instructed the provider to review and update its complaints information and response letters. It says it is sincerely sorry for the lack of support offered to Mrs Y when the enquiries were made to the home and an adequate response was not provided. It adds that it will ensure the provider complies with clause 10.4 Compliments and complaints of the Sheffield City Council contract specification which expects that providers will “regularly analyse overall trends and issues which should be used for learning and to develop action plans to ensure ongoing service improvement”.
37. Mrs Y says she felt compelled to visit her brother more often because “I knew he was not being properly cared for and I was constantly worried about him.” She was using public transport to make the journey. She says the effect on her in terms of anxiety and distress was considerable.
38. Following Mr X’s death, his care and support was reviewed through the service improvement programme “Learning from Lives and Deaths - People with a Learning Disability and Autistic People”. The report concluded that Mr X’s care package did not meet his needs; his health was impacted by delays, and a lack of communication between staff at the care home led to a poor standard of care.

Analysis

39. There were multiple failings in the way the commissioned care provider managed Mr X’s care after his discharge from hospital in June 2024.
40. The care provider failed to follow the SALT advice and regularly gave Mr X the wrong amount of thickener in his fluids because of its failure to comply with the IDDSI. That was a potential breach of regulation 14. It also failed to communicate correctly with Mrs Y about what was happening, giving her incorrect information both at the time she raised her concerns and in its written response. That caused her considerable frustration and distress.
41. The care provider was at fault in its medicines management, a potential breach of regulation 12.
42. The care provider failed to seek clinical advice promptly when Mr X fell ill with severe constipation and urine retention (regulation 9).
43. The care provider failed to keep accurate and timely records, a potential breach of regulation 17. It failed to respond properly to Mrs Y’s complaints in accordance with the regulations and caused further distress and anxiety by the implication that it was too busy to do so.

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Action

44. The Council has taken significant steps to ensure the improvement of the care by its commissioned care provider and I have no further service improvements to recommend.
45. Any injustice caused to Mr X by the failings of the care provider cannot now be remedied. However, there was also considerable distress caused to Mrs Y not only by the knowledge of the suffering caused to her brother, but also by the poor attitude of the care provider in its responses to her complaints.
46. Under Part 3 of the Local Government Act, we treat the provider’s actions as if they were council actions. Within one month of my final decision therefore, the Council agrees to offer Mrs Y £1000 in recognition of the suffering caused to her by the actions of the commissioned care provider.
47. It will also offer to her the sum of £250 in recognition of the time and trouble she was put to in making this complaint.
48. The Council should provide us with evidence it has complied with the above actions.

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Decision

49. I have completed this investigation on the basis that I find fault causing injustice. Completion of the recommendations at paragraphs 46 and 47 will remedy that injustice.

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Investigator's decision on behalf of the Ombudsman