Kingston Upon Hull City Council (18 015 760)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 26 Jul 2021

The Ombudsman's final decision:

Summary: Kingston Upon Hull City Council, Molescroft Nursing Home Limited and Barchester Healthcare Homes Limited all acted with fault when supporting Mrs B. Those faults include personal care, unfairly charging a top-up, best interest decision making, safeguarding investigations, and complaint handling. Those faults had an emotional and financial impact on Mrs B’s son, Mr A.

The complaint

  1. The complainant, whom I shall refer to as Mr A, complains about the care provided to his mother, Mrs B, by two care homes.
  2. Specifically, he complains that Holy Name Care Home (Holy Name – owned by Molescroft Nursing Home Limited):
      1. Did not provide a good standard of care for Mrs B’s nutrition, hydration and personal care between August and October 2018;
      2. Caused Mrs B harm by cutting her arm in August 2018 and refusing to help her during a choking episode in September 2018;
      3. Dismissed Mr A’s complaints about his mother’s care, then took punitive action by imposing unfair visiting limits and serving ‘revenge eviction’ notices on Mrs B in April 2017 and September 2018;
      4. Unfairly charged a weekly top-up fee for Mrs B’s care from September 2015, on top of her Continuing Healthcare funding;
      5. Staff struck Mrs B in the face in March 2017;
      6. Unfairly served an eviction notice in April 2017;
      7. In April 2018, following a seizure, a paramedic said Mrs B’s paperwork was missing which ensured she did not move to hospital;
      8. Exposed Mrs B’s private parts during an altercation when changing her pad;
      9. Did not serve the notice letter privately in September 2018; and
      10. Made false allegations about what was said when Mrs B was choking in September 2018.
  3. Mr A complains that during October and November 2018, Castle Rise Care Home (Castle Rise – owned by Barchester Healthcare Homes Limited):
      1. Inappropriately thickened Mrs B’s ice cream;
      2. Failed to contact Mrs B’s Speech and Language Therapist
      3. Unfairly excluded Mr A and his partner, Mrs C, from Mrs B’s mealtimes;
      4. Did not meet Mrs B’s hydration needs;
      5. Did not provide Mrs B with acceptable pain relief;
      6. Did not tell Mrs B’s family about changing her GP.
      7. Left medication for other people in Mrs B’s room and two tablets were unaccounted for.
      8. Failed to fix the heating in Mrs B’s room.
      9. Placed Mrs B on her oxygen wire on one occasion.
  4. Mr A also complains about Kingston upon Hull City Council (the Council). Specifically, that:
      1. Mrs B’s Social Worker did not support Mrs B and her family and delayed the move between Holy Name and Castle Rise in September and October 2018. Further, the actions of Council staff negatively influenced the attitudes of both care homes toward Mrs B and her family.
      2. Between October 2018 and April 2019 it poorly handled Mr A’s safeguarding concerns. It wrongly advised him there would be a second safeguarding investigation into Holy Name.
      3. The safeguarding investigation into Holy Name did not consider his issues about Castle Rise also.
      4. The safeguarding investigations into Holy Name and Castle Rise did not recommend apologies to him.
      5. The report into how it handled the Holy Name safeguarding investigation did not identify failings in Mrs B’s care, the limits imposed on him and serving notice.
  5. The organisations actions impacted Mrs B’s well-being and the family suffered distress. Mr A would like apologies, a financial payment for the distress he suffered, and Holy Name to pay back the top-up fees. Mr A would also like systemic improvements to ensure other families do not go through the same experience.

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What I have investigated

  1. I have investigated parts 2a-d, 3a-f and 4a-b. The final section of the statement contains my reasons for not investigating the rest of Mr A’s complaints.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
  2. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A (1), as amended).
  3. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
  4. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:
    • It is unlikely they would find fault, or
    • The fault has not caused injustice to the person who complained, or
    • It is unlikely they could add to any previous investigation by the bodies.
  5. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may 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. 
  6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by Mr A and the organisations. Mr A and the organisations had an opportunity to comment on two draft decisions. I considered any comments received before making a final decision.
  2. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Key facts

  1. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about Continuing Healthcare (CHC). It states that where an individual is eligible for CHC funding the CCG is responsible for care planning, commissioning services and case management.
  2. Mrs B moved to Holy Name in 2014. Mr A’s father agreed to pay a top-up for various services.
  3. In September 2015, City Health Care Partnership (CHCP), identified Mrs B had a primary health need, so became eligible for CHC a month later. CHCP managed Mrs B’s CHC on behalf of the CCG. Holy Name’s weekly top-up increased to £50.50, which Mr A’s father and her son (Mr A) jointly paid. In April 2016, the weekly top up increased to £55. When Mr A’s father died in November 2016, Mr A started paying the top-up to Holy Name. In April 2017, the weekly top-up increased to £60. Then in June 2018, the top-up increased to £67.50.
  4. In August 2018, Mrs B cut her arm. Staff treated her wound and applied stitches.
  5. On 11 September, Mrs C raised a safeguarding alert about Holy Name’s care and support. The next day, the Council agreed to carry out a safeguarding investigation.
  6. On 21 September, a Safeguarding Officer contacted Holy Name. Holy Name confirmed it was considering serving notice to Mrs B based on Mr A and Mrs C’s harassment of staff. The Safeguarding Officer asked Holy Name to delay serving notice until the Council had completed its safeguarding investigation. Three days later, Holy Name told the Safeguarding Officer it would serve notice and would not negotiate.
  7. On 27 September, the Safeguarding Officer and Social Worker met Holy Name, who explained why they had decided to serve notice to Mrs B. The same day Mrs B choked on her food. Mrs C and staff disputed how Mrs B came to choke. Mrs C said there was too much gravy. Staff felt Mrs C had reclined Mrs B’s chair too far backwards. Holy Name and the Council agreed to restrict Mr A and Mrs C to visiting Mrs B at certain times during the day.
  8. The next day, Holy Name served notice to Mrs B.
  9. The Safeguarding Officer spoke to Mr A and Mrs C a few days later. They denied they had harassed staff and felt they had been ‘set up’. Mrs C agreed to stop visiting if it was in Mrs B's best interests. Mrs C said she would arrange to move Mrs B from Holy Name.
  10. On 10 October, CHCP held a best interest meeting about the decision to move Mrs B to Castle Rise. Everyone (CHCP, Council, Mrs C, and an Independent Mental Health Advocate) agreed it was not in her best interests. However, there was no alternative, and Castle Rise could safely support her.
  11. Mrs B moved to Castle Rise on 15 October. Castle Rise recognised Mrs B was at risk of choking, so decided to ban Mr A and Mrs C from feeding Mrs B at mealtimes. Castle Rise also changed Mrs B’s GP, as she had moved out of the area of her previous GP.
  12. On 9 November, Mr A raised safeguarding concerns about Castle Rise, including that it had banned him from feeding Mrs B at mealtimes and she was not eating. The Safeguarding Officer agreed to carry out a safeguarding enquiry into Mr A’s first point. Castle Rise said Mrs B’s appetite had decreased because she was dying.
  13. On 17 November, Mrs B died.
  14. In January 2019, Mr A chased the Council’s safeguarding investigation outcome. He was unhappy with the delays, lack of communication and reiterated issues he was unhappy with about Holy Name and Castle Rise. The next day, the Council told Mr A it had not completed the investigation. It needed to interview the Safeguarding Officer, who was on annual leave.
  15. In February 2019, the Council completed its safeguarding investigation into Holy Name. It found:
    • Staff did not always treat Mrs B with dignity and respect. People shouted and argued in front of her. All staff should behave professionally. They should not raise their voices or act in a way which upset residents, and should walk away from confrontation.
    • Holy Name should ensure it took complaints seriously, manage them appropriately, and take action to resolve them to satisfy the complainant.
    • It had opened a further enquiry into how Mrs B and the family’s experience led to Holy Name serving the eviction notice. It would also investigate the length of time it took to complete this safeguarding enquiry, the restrictions at Holy Name, its failure to respond to their concern that staff hit Mrs B in 2017, and nutritional concerns.
    • It would ensure Holy Name carried out its recommendations.
  16. Two months later, the Council met with Mr A and Mrs C. Mr A and Mrs C discussed the general issues at Holy Name and Castle Rise, including the safeguarding investigation in 2018.
  17. Between April and July 2019, the Council completed its safeguarding investigation into Castle Rise. It found:
    • Castle Rise did not include Mr A and Mrs C in the decision to limit their support for Mrs B at mealtimes. That decision should have been in Mrs B’s best interests, after a Deprivation of Liberty Safeguards (DoLS) assessment. It recommended that Castle Rise completes DoLS assessments in a timely manner.
    • Two staff members should check medication on admission and record that on medication administration record (MAR) charts.
    • Castle Rise should have consulted Mr A and Mrs C in the best interest decision to change her GP.
  18. In July 2019, Mr A told the Council that Holy Name had said he must pay the £270 top-up even though he was struggling to do so. In response, the Council said the CCG would be responsible for considering that complaint.

Holy Name

Hydration

  1. Mrs B’s care plan stated that Holy Name would provide normal fluids and would record when she did not achieve her daily fluid target. If Mrs B did not reach her target, staff should have noted to encourage more fluids. Holy Name would also contact Mrs B’s GP if her fluid intake continually decreased over 48 hours, or if she was confused or had a low urine output.
  2. The Speech and Language Therapist Team (SALT) provided support to Holy Name around fluids. It advised staff to encourage Mrs B to take fluids only when she was alert to reduce the risk of choking. Mrs B’s low blood oxygen level meant it was difficult for Mrs B to be fully alert. Holy Name told me this impacted Mrs B reaching her daily target.
  3. I have reviewed the fluid charts for Mrs B between August and October 2018.
  4. Mrs B’s fluid intake rose and fell during that period. Over the 74 days, Mrs B did not reach her fluid target on 43 days. I do not consider Holy Name was at fault that Mrs B did not always reach her fluid target. I do not doubt that Holy Name acted in line with the SALT guidance. I am satisfied it was regularly offering Mrs B fluids, and noting when she was refusing fluids, or only taking some. I recognise Holy Name could not force Mrs B to take fluids.
  5. On the 43 days Mrs B did not reach her fluid target, staff should have been recording to encourage more fluids on the fluid charts. That did not happen on 20 days. On the balance of probabilities, staff would have seen that Mrs B did not achieve her fluid target from the previous day, as the target and fluids taken were always clearly documented. However, it would have been good practice for staff to record that they had encouraged or not encouraged fluids (and explained why).
  6. However, there were five times when Mrs B’s fluids continually decreased over 48 hours:
    • 13 to 16 August: 1050, 1030, 910, 555mls.
    • 18 to 20 August: 1260, 1025, 640mls.
    • 15 to 17 September: 1500, 830, 770mls.
    • 25 to 27 September: 790, 530, 550mls.
    • 30 September to 2 October: 1400, 900, 890mls.
  7. According to the care plan, Holy Name should have alerted Mrs B’s GP to this gradual decline in fluids. I have not seen any evidence Holy Name did that on the occasions above. My provisional view is that was fault. However, I do not consider there was any injustice to Mrs B. While the last figures for Mrs B’s fluid intake are low, her fluids returned to her target level the next day. I do not doubt that Mrs B’s fluctuating fluid intake was due to her alertness, caused by her low blood oxygen level.

Nutrition

  1. Mrs B’s care plan stated Holy Name would provide a pureed meal because of her choking risk. Staff should help Mrs B to eat.
  2. Holy Name recognised Mrs B was a high-risk of malnutrition because of her low weight. Therefore, it would document what it had offered Mrs B and if she refused any food. I consider Holy Name appropriately reviewed the care plan and risk assessment in August and September 2018.
  3. Holy Name recorded that Mrs B had gained 3kg between July and August 2018 (42.5kg to 45.8kg). Mrs B gained another 4kg from August to September (49.3kg).
  4. I have reviewed the food charts for Mrs B between August and October 2018.
  5. I consider Holy Name robustly documented what food it offered Mrs B, and how much of it she ate. Holy Name appropriately highlighted the risk of malnutrition, and Mrs B’s weight gain after August 2018 showed staff were actively encouraging Mrs B to eat, which was successful. I am satisfied Holy Name acted in line with Mrs B’s care plan after August.

Personal Hygiene

  1. Mrs B’s care plan stated:
    • Two staff should support her personal hygiene needs twice a day (minimum).
    • She should be bathed once a day (minimum).
    • She should receive mouth care swabs after every meal.
    • Staff should wash her hair once a week.
    • Staff should provide continence care every two hours.
    • Staff should keep her fingernails short and clean.
  2. I will address the points above individually below. I have considered the daily care records and repositioning charts.
  3. Based on the daily care records, I do not consider Mrs B always received support from two carers, twice a day, to support her personal hygiene. Holy Name provided once daily personal care on eight occasions in late August 2018, eight times throughout September and twice in early October. I asked Holy Name about this. It said that was an oversight, but said it provided “lots of care and attention” to Mrs B. While I note what Holy Names says, either it did not provide twice daily care and support or did not accurately record providing it. Regardless, my provisional view is that was fault. I will consider the injustice of that fault at the end of this section.
  4. Holy Name used Mrs B’s repositioning charts to record when it provided bed baths. Holy Name regularly recorded providing bed baths to Mrs B. Between August and October 2018, there were seven times when staff did not specifically record providing bed baths. However, on those days, staff noted in the daily care records that it supported Mrs B with “personal care” or “personal hygiene”. I consider, on the balance of probabilities, that included bed baths. Holy Name also told me that was correct. Therefore, on the evidence I have seen so far, I consider Holy Name acted in line with the care plan about bed baths.
  5. On Mrs B’s repositioning charts, there is a column to record what oral hygiene staff provided. For the first half of August 2018, staff regularly recorded swabbing Mrs B’s mouth in the morning, I would assume after breakfast. However, after 12 August, staff only recorded what mouth care it provided 10 times, until mid‑October. My provisional view is that was fault. Staff should have been regularly providing mouth care to Mrs B after every meal, according to the care plan. I consider Holy Name was most likely not providing regular mouth care. If it did not provide mouth care for any reason, it should have explained why. I will consider the injustice of that fault at the end of this section.
  6. Holy Name’s repositioning charts show that Holy Name washed Mrs B’s hair weekly between August and October 2018. I consider that was in line with Mrs B’s care plan.
  7. I do not consider Holy Name provided continence care to Mrs B in line with the care plan (every two hours). Between 10pm and 6am, Holy Name supported Mrs B appropriately, every two hours. During the day, I am not persuaded Mrs B received the same regular support. The repositioning charts show Mrs B did not regularly receive two hourly support. Holy Name regularly supported Mrs B every three hours in the afternoons. I understand it is more difficult to provide regular support to someone who is awake. However, there were times when Mrs B went significant periods without any continence care. I have listed those times below, between:
    • 6am and 11.30am on 8 August
    • 3.30pm to 7.30pm on 12 August
    • 6am and 11am on 17 August
    • 11.30am to 4pm on 27 August
    • 3pm to 7pm on 30 August
    • 3.30pm to 7.45pm on 3 September
    • 9.30am to 1.30pm on 9 September
    • 3.30pm to 7.30pm on 11 September
    • 4pm to 10pm on 14 September
    • 3.30pm to 7.30pm on 24 September
    • 4.30pm to 10pm on 25 September
    • 3.30pm to 7.30pm on 28 September
    • 4pm to 10pm on 2 October
    • 6am and 11am on 13 October
  8. Holy Name has said its care and support was appropriate and any gaps in its record keeping was an oversight. It told me “all personal care” included bathing, washing, showering, grooming, dressing, continence and oral care. I consider Holy Name used “all personal care” as a catch all to show that it provided appropriate care to Mrs B. That term is not defined in Mrs B’s care plans. Also, some staff were recording continence and oral care on a separate form, which I consider was the right thing to do. Therefore, Holy Name was wrong to consider incontinence and oral care under “all personal care”, especially when there was a specific form to record that information. I consider Holy Name’s record keeping around personal care was inconsistent. That was fault.
  9. Due to Holy Name’s inconsistent record keeping, I cannot say, even on the balance of probabilities, if Mrs B received all her personal care in line with her care plan. That leaves Mr A with a sense of uncertainty.
  10. Holy Name told me it has remind staff how important detailed record keeping is, even when staff are extremely busy. Holy Name has agreed to review how staff record different aspects of care to ensure consistency. That is good practice. I consider it should do more to remedy the injustice Mr A has suffered, and to stop similar faults happening to others.
  11. Holy Name has provided evidence to show it was providing appropriate nail care to Mrs B between August and October 2018.

The cut to Mrs B’s arm

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set 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.
  2. The CQC is the statutory regulator of care services. It keeps a register of care providers who show they meet their fundamental standards of care, inspects care services and issues reports on its findings. It also has the power to enforce against breaches of fundamental care standards and prosecute offences.
  3. The CQC’s fundamental standards ensure care providers enquire about: “incidents that, in the reasonable opinion of a healthcare professional, could result in, or appear to have resulted in, the death of the person using the service or sever harm, moderate harm, or prolonged psychological harm”.
  4. I have considered Holy Name’s skin inspection record and its daily record.
  5. Holy Name recorded a skin tear on Mrs B’s lower right arm on 3 August 2018. Holy Name applied three butterfly stitches and dressed the wound. There is no record of how Mrs B cut her arm.
  6. Mr A says the staff caused the skin tear. I have not seen any evidence from the time to agree with that statement. The skin tear was a minor injury, and I would not have expected Holy Name to have investigated the circumstances of it. While Holy Name could have included more detail about the skin tear, I do not consider its record keeping amounted to fault. Also, Holy Name appropriately treated Mrs B’s skin tear with stitches.

The choking incident

  1. The DoLS is an amendment to the Mental Capacity Act 2005 that came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no other less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without authorisation, a deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to ensure that any deprivation of liberty is lawful. The Government issued a DoLS Code of Practice in 2008, to serve as statutory guidance on how DoLS should be applied in practice.
  2. If there is a conflict about a deprivation of liberty and all attempts to resolve it have failed, the case can be referred to the Court of Protection.
  3. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be done, or made, in that person’s best interests. Section 4 of the Act provides a checklist of steps that decision-makers must follow to determine what is in a person’s best interests. The decision-maker must also consider if there is a less restrictive option available that can achieve the same outcome.
  4. Mrs B was at high risk of choking. In April 2018, Holy Name carried out a best interest decision that said: “Family are happy to assist with the feeding when visiting and will inform staff should [Mrs B] start coughing or aspirate while feeding her”.
  5. Mr A says a nurse did not support Mrs B on 27 September 2018 and instead blamed him and his partner for her choking.
  6. In response, the nurse said when she entered the room, she saw Mrs C using the remote to return Mrs B to an upright position. So, she asked Mrs C if Mrs B was upright or sleeping before she stared coughing. She was trying to find out the facts rather than accuse anyone. The nurse said she left the room because she felt vulnerable and humiliated by Mr A and Mrs C.
  7. I have considered Holy Name’s fluid chart from 27 September 2018. Also, Mr A’s, Mrs C’s, and the staff’s version of events on that day.
  8. I consider, on the balance of probabilities, Holy Name tried to support Mrs B when she was choking on 27 September 2018. I am persuaded by the testimonies of staff on that day. The relationship between Mr A, Mrs C and certain staff was clearly breaking down. I consider that contributed to Mr A’s and Mrs C’s belief that staff refused to help Mrs B, which was unfortunate. Rather, I am persuaded staff tried to support Mrs B. I am not persuaded by Mr A’s view that staff blamed them for Mrs B’s choking. Rather, I am more persuaded staff were simply trying to understand how Mrs B started choking. Therefore, I do not consider Holy Name’s attempt to support Mrs B amounted to fault.

Mr A’s complaints

  1. Mr A says Holy Name did not take his complaints seriously, which led to their relationship breaking down.
  2. Mr A raised many formal and informal complaints using a form in September 2018 about Mrs B’s personal care, support eating, fluids, continence, and missing furniture from her room. Mr A made most of those complaints on the same day (17 September). Mr A also raised issues going back to 2017 and about previous complaints he felt Holy Name had ignored.
  3. Holy Name addressed many of Mr A’s complaints on 28 September in writing at the bottom of the same form that Mr A completed on 17 September. Holy Name said it had already resolved issues going back to 2017.
  4. The Council’s safeguarding investigation found Holy Name should take all complaints seriously. Holy Name should complete complaint forms correctly, noting a detailed result, action taken and how it resolved the issue.
  5. In 2019 the Council inspected Holy Name following its earlier safeguarding investigation. It said the complaints procedure was on display. Holy Name also kept a log of complaints and showed evidence it had used them to improve its service. The CQC also did not note any concerns with Holy Name’s complaint handling.
  6. The CQC’s fundamental standards state care providers should:
    • Acknowledge complaints verbally or in writing.
    • Take appropriate action without delay.
    • Decide how detailed an investigation is required based on the complaint.
    • Log all complaints, outcomes and actions it has taken.
    • Tell residents and families how to complain and share its complaints procedures.
  7. Holy Name provided me with a copy of its Complaints, Suggestions and Compliments Policy and Procedure.
  8. I have considered if Holy Name handled Mr A’s complaints after August 2018 in line with its policy and procedure.
  9. After Holy Name received complaints, it appropriately classed the issues as formal or informal. I consider it quickly addressed the informal complaints (removal of furniture). I am also satisfied Holy Name acknowledged Mr A’s complaints. However, I am not persuaded it consistently and robustly recorded the investigation and outcomes.
  10. For example, Mr A complained on 6 September about staff exposing Mrs B’s private parts. Holy Name carried out multiple meetings with staff to understand events, and then fed back to Mr A in another meeting. I consider Holy Name managed that investigation well. However, when Mr A sought a written response to his complaint a week later, Holy Name sent him a copy of their meeting notes. While I consider Holy Name took Mr A’s complaint seriously, it did fail to provide a robust formal response. Meeting minutes cannot replace a formal tailored response to a complaint.
  11. When Mr A used complaint forms, Holy Name would record its response at the bottom of the same form. In response to the complaint about personal care, Holy Name noted: “Diet and fluid book states 15.00 Pad change [and] mouth swabbed. Incontinence aid was wet, also Pad changed at 16.30, Pad again was wet, [Mrs B’s] pad was changed 2 hourly and each time it was wet, which indicates that [Mrs B] received adequate fluids. [Signature] 28.9.19”.
  12. I do not doubt Holy Name properly explored Mr A’s concerns. I also understand the pressure staff were under at that time, considering the amount of complaints Mr A made and trying to support Mrs B. However, the example above showed it did not communicate the outcome clearly. That response was limited and handwritten at the bottom of a complaint form. My provisional view is that was fault. I do not agree the fault in September 2018 solely caused the breakdown in their relationship. However, I can understand how Holy Name’s complaint handling made Mr A feel as if they were being dismissive. That would have been frustrating for him.
  13. If Holy Name found Mr A’s complaints were unwarranted, then it should have explained why the complaints were frivolous and vexatious. It did not do that.
  14. After September 2018, the Council and CQC (in its inspection reports) did not find any issues with Holy Name’s complaint handling. However, the Council and CQC’s focus was on the administration of complaints, rather than the quality of its communication. I have not seen evidence Holy Name has acknowledged or improved how it responds to complaints. Therefore, I consider it should take further action to put right the injustice Mr A suffered.
  15. I also consider the complaints policy should be updated, as it is nearly ten years old. The contact details for other organisations are out of date.

Visiting restrictions

  1. On 27 September 2018, during a safeguarding meeting, the Council’s Social Worker, Safeguarding Officer and Holy Name agreed to restrict Mr A and Mrs C from visiting Mrs B. The next day, Holy Name wrote to Mr A, to say he could only visit his mother at 12-1pm and 4-5.30pm.
  2. Mr A felt he could no longer visit Mrs B at Holy Name after that point. In response, Holy Name and the Council both said the limits did not stop Mr A visiting his mother.
  3. I consider there was fault in how Holy Name and the Council restricted visits. I understand it had genuine concerns about the impact of Mr A and Mrs C on its staff’s ability to support Mrs B. Holy Name wanted to care for Mrs B without Mr A and Mrs C present. However, that decision should have made in Mrs B’s best interests as she lacked capacity. So far, I have not seen any evidence of a best interest decision, which was fault.
  4. The limits made Mr A feel as if he had done something wrong or violated his mother. I appreciate that was distressing for Mr A. If the Council and Holy Name had carried out the decision in Mrs B’s best interests, Mr A maybe would have agreed a less restrictive choice. That was a missed opportunity.
  5. Holy Name told me the decision was in Mrs B’s best interests as it allowed staff to provide care and support to her and other residents. I do not doubt this. But Holy Name has not provided any evidence from the time of the event that showed it considered Mrs B’s best interests when it decided to restrict visiting hours.
  6. The Human Rights Act 1988 brought the European Convention on Human Rights (ECHR) into UK law. Section 6 says it is unlawful for a public authority to act in a way which is incompatible with a convention right.
  7. Article 8 of the EHCR says everyone has the right to respect for private and family life. This right is qualified and cannot be interfered with. It is not the Ombudsmen’s role to decide whether a public authority has breached the Human Rights Act, this is for the courts. But we can decide whether a body addressed a person’s human rights in their treatment of them.
  8. In Mrs B’s case, my current view is that I do not consider Holy Name and the Council considered the impact on Mr A and Mrs B’s human rights under Article 8 in its decision.
  9. The Council upheld Mr A’s complaint and apologised. It said that, with Holy Name, it should have considered Mrs B’s best interests when deciding to restrict her contact with her family. The Council said it would provide training to the Social Worker and Safeguarding Officer involved in the decision to restrict visiting hours. The Council also recommended Holy Name management team carry out refresher training.
  10. The Council and Holy Name should take further action to remedy the injustice Mr A suffered.

The eviction notice

  1. Mr A says Holy Name should not have served notice just because he raised concerns about his mother’s care and treatment.
  2. The CQC’s fundamental standards state: “Providers must make sure that they give a copy of any contract detailing the service to be provided to the person using the service and/or the person lawfully acting on their behalf”.
  3. The terms and conditions of Mrs B’s contract at Holy Name states: “The home will not tolerate any form of continual harassment from residents or relatives towards staff (verbal or otherwise). If this occurs, immediate notice will be given”.
  4. Harassment is a subjective issue. From Holy Name’s evidence, it clearly felt Mr A and Mrs C had continually harassed its staff. It highlighted many occasions (over months) where staff had felt harassed and intimidated.
  5. Before Holy Name decided to serve notice to Mrs B, it should have worked with Mr A and Mrs C to resolve their differences and improve the relationship. I can see Holy Name had met with Mr A and Mrs C many times since 2017 to try to improve their relationship. My current view is that Holy Name made reasonable attempts to improve its relationship with Mr A and Mrs C before it decided to serve notice.
  6. Overall, I consider Holy Name served its eviction notice in September 2018 in line with the terms and conditions of the contract. However, I consider Holy Name should have shared a copy of Mrs B’s contract with Mr A before it served notice. Holy Name has not been able to show me it shared a copy of Mrs B’s contract with Mr A. Therefore, Mr A would have been unaware of the terms and conditions I have highlighted above.
  7. Overall, I do not consider Holy Name acted with fault, by not sharing a copy of Mrs B’s contract with Mr A. However, it would have been best practice.
  8. Paragraph 144 of the National Framework says: “The risks and benefits to the individual of a change of location or support (including funding) should be considered carefully before any move or change is confirmed...”.
  9. Once Holy Name had served its notice, it was then responsible for working with CHCP and the Council to find a suitable placement for Mrs B. CHCP was responsible for managing people who received CHC in Hull, on behalf of the CCG. The Council was also responsible for identifying placements.
  10. CHCP later held a CHC review with a Social Worker, Mrs C and an Independent Mental Health Advocate (IMCA) before Mrs B moved to Castle Rise. All parties agreed while it was not in Mrs B’s best interests to move to Castle Rise, there was no other choice as Holy Name had served notice.
  11. In October 2018, the Council emailed the IMCA and suggested referring Mrs B to the Court of Protection, as everyone agreed the decision to move her was not in Mrs B’s best interests. The IMCA did not respond to that question.
  12. In November 2018 (after Mrs B moved to Castle Rise), the IMCA said: “Where ever [sic] possible the needs of [Mrs B] have been considered in accord with the MCA. The decision is not in the least restrictive option as ideally [Mrs B] should remain at Holyname [sic] where the staff know her and can respond to her needs. However, as notice has been given, and due to the irretrievable breakdown of the home/family it is the only option available. The safeguarding issues will no longer be in effect when [Mrs B] moves, which is to take place immediately.”
  13. I consider CHCP appropriately weighed the risks and benefits of Mrs B moving to Castle Rise, which was in line with the National Framework. Clearly, all parties agreed moving Mrs B was not in her best interests. The time limited eviction notice essentially forced the best interest decision. I agree it was the only choice then which would meet Mrs B’s needs. Provisionally, I do not consider the CHCP made the best interest decision to move Mrs B to Castle Rise with fault.

The top-up fee

  1. The National Framework says:
    • Practice Guidance (PG) 96.1 - “...patients should never be charged for their NHS care, or be allowed to pay towards an NHS service (except where specific legislation is in place to allow this) as this would contravene the founding principles and legislation of the NHS”.
    • PG 96.4 - “The NHS care package provided should be based on the individual’s health and social care needs as identified in their care plan, developed from the multidisciplinary assessment in the NHS continuing healthcare eligibility process (including any changes to the care plan following review of the individual’s needs).”
    • “The care plan should set out the services to be funded and/or provided by the NHS. It may also identify services to be provided by other organisations such as LAs [local authorities] but the NHS element of the care should always be clearly identified. Any care which would normally have provided in the course of good NHS practice should continue to be offered free of charge on the NHS.”
    • “The decision to purchase additional private care services should always be a voluntary one for the individual. Providers should not require the individual to purchase additional private care services as a condition of providing, or continuing to provide, NHS-funded services to them.”
    • PG 99.1 – “The funding provided by CCGs in NHS continuing healthcare packages should be sufficient to meet the needs identified in the care plan, based on the CCG’s knowledge of the costs of services for the relevant needs in the locality where they are to be provided. It is also important that the models of support and the provider used are appropriate to the individual’s needs and have the confidence of the person receiving the services.”
    • PG 99.3 – “In some circumstances individuals become eligible for NHS continuing healthcare when they are already resident in care home accommodation for which the fees are higher than the relevant CCG would usually meet for someone with their needs. This may be where the individual was previously funding their own care or where they were previously funded by an LA and a third party had ‘topped up’ the fees payable. ‘Topping up’ is legally permissible under legislation governing LA social care but is not permissible under NHS legislation. For this reason, there are some circumstances where a CCG may propose a move to different accommodation or a change in care provision.”
  2. Mr A says since September 2015 Holy Name has unfairly charged a top-up.
  3. In April 2014, Mr A’s father started paying £396 per week plus a £50 weekly top‑up to Holy Name. That £50 paid for services such as hairdressing and chiropody. In September 2014 Mrs B’s contract stated: “If your relative’s needs change and they become more dependent requiring nursing care this will then be discussed with the responsible party and a new nursing care contract issued. Nursing care will be the weekly fee plus the free nursing care assessment, which will be paid directly to the Home”.
  4. Mrs B became eligible for CHC in September 2015. The CHCP said it would not pay for the £50.50 weekly top-up. Mr A showed me the weekly top‑up was £50.50 and increased to £55 in April 2016. Between October 2015 and October 2016, Mr A and his father shared that cost. After Mr A’s father died in November 2016, Mr A paid the top-up himself until October 2018. The top up increased to £60 in April 2017 and again to £67.50 in June 2018. Holy Name invoiced Mr A every four weeks.
  5. In response to my enquiries:
    • Holy Name said when Mrs B started to receive CHC funding, the top-up paid for the general running of the home. It said Holy Name was a new build, its nurses were highly trained, and CHC funding was not enough to pay the cost of her placement. It referred to the top-up as a “lifestyle contribution”. Holy Name added Mr A did not have an issue paying the top-up fee. However, it has been unable to provide evidence it explained what the top-up was paying for.
    • Holy Name were billing CHCP direct for the CHC payments.
    • The Council has been unable to provide a copy of the contract for Mrs B’s stay at Holy Name. The contract was most likely lost when the Council moved documents between two databases.
    • The Council said the top-up was in place when Mrs B moved to Holy Name. The family were happy to pay the top-up because they were close to Holy Name.
    • The Council did not carry out any care and support assessments or clinical reviews for CHC. CHCP send letters to families and providers about updates to CHC reviews.
  6. I have considered records from the Council, the CCG and CHCP about the top-up and CHC.
  7. In April 2014, Mr A’s father agreed to pay the £50 top-up. It was a privately agreed service with Holy Name. Therefore, I consider Holy Name was within its rights to charge that top-up.
  8. I understand the CHCP was aware that Mrs B’s husband was paying the £50.50 top-up to Holy Name in September 2015. However, at that point, the CHCP most likely understood that the top-up was paying for services outside of the CHC funding (hairdressing, chiropody etc). The CHCP rightly said it would not pay that top-up as it was not an identified need under CHC. When Mrs B became eligible for CHC funding, her weekly fee at Holy Name increased. Holy Name says the CHC funding was not sufficient to cover the full cost of the service it provided. Mrs B had to contribute a “lifestyle contribution” to top-up the cost of the placement. Therefore, when Mrs B became eligible for CHC funding, the top-up changed from paying for various private services to bridging the gap between CHC funding and the cost of the placement.
  9. I consider the top-up was most likely contributing to Mrs B’s care and support under CHC. Holy Name confirmed this during my investigation. Holy Name should not have charged Mrs B for NHS services, because she was CHC funded. That was not in line with the National Framework. Mr A should not have been expected to bridge that gap just because Holy Name felt the level of CHC funding was not enough. My current view is that was a significant fault.
  10. I have not seen any evidence that Holy Name ever explained to Mr A or the CCG what the “lifestyle contribution” paid for. Mr A always paid the top-up understanding it was required. Mr A should have understood what he was paying for. That was a missed opportunity for Holy Name.
  11. Holy Name clearly felt the CHC funding did not cover the cost of Mrs B’s care and support for her health and associated social care needs. In that instance, Holy Name should have contacted CHCP to discuss its concerns about the level of CHC funding. It should not have expected Mr A to pay the difference. CHCP would have then had the opportunity to review Mrs B’s placement. CHCP would have decided to either agree to pay the increased cost or search for other providers who could support to Mrs B’s needs.
  12. I consider Holy Name’s actions were in direct opposition to the National Framework. That had a significant emotional and financial impact on Mr A. In July 2019, Mr A told the Council he previously struggled to pay the top-up, which Holy Name said was a condition of supporting Mrs B. I do not consider Mr A had any reason to fabricate that information.
  13. The Council and the CCG both told me they were unaware that Holy Name was charging a top-up, as well as receiving CHC funding.
  14. I have not seen any evidence Mr A raised the top-up with CHCP or Council. However, this is not surprising considering he understood it was a condition of Mrs B staying at Holy Name. Therefore, I consider CHCP could do little to address the top-up. The onus was on Holy Name to raise the top‑up with CHCP or the CCG. I also understand why Mr A did not approach the CCG directly to complain about the top-up. The CCG was ultimately responsible for CHC case management, despite CHCP carrying that role on its behalf. However, the local arrangement was confusing, with multiple organisations involved.
  15. Holy Name could not tell me when the top-up started. Therefore, I have had to rely on Mr A's evidence. Mr A provided invoices which showed that between October 2015 and November 2016, Mr A and his father jointly paid £2,967.50 toward the top up. After Mr A’s father died, Mr A paid another £6,080.71 to Holy Name.
  16. Holy Name accepts there should have been a clearly documented decision with the CHCP/CCG. It cannot provide evidence to show the CHCP/CCG and family knew what the top-up was for or charged in line with the National Framework. I consider Holy Name should take further action to put right the injustice Mr A and his father suffered.

Castle Rise

Thickening Mrs B’s ice cream

  1. Mr A said Castle Rise inappropriately thickened Mrs B’s ice cream.
  2. The CQC’s fundamental standards state providers must have a system to make sure that people receive dietary supplements. Qualified staff should administer those supplements.
  3. I have considered Mrs B’s assessment, care plan and the risk assessment of choking.
  4. Mrs B’s care plan noted staff should thicken Mrs B’s ice cream as she had choked before when eating ice cream.
  5. I consider Castle Rise appropriately recognised the risk of choking from ice cream, and Mrs B would need trained staff to support her. I am satisfied that plan was in line with the CQC’s fundamental standards.
  6. Mrs B lacked capacity to decide to have thickened ice cream. Castle Rise would have been aware Holy Name previously made the same decision in Mrs B’s best interests. However, before deciding to include thickened ice cream on Mrs B’s care plan, Castle Rise should have made a fresh best interests’ decision. SALT recommended thickening Mrs B’s ice cream in November 2018. Also, the Council agreed with SALT during its safeguarding investigation.
  7. I consider Castle Rise acted with my fault, in not carrying out a fresh best interests decision. However, I am not persuaded there was any injustice to Mr A or Mrs B. If staff had not thickened Mrs B's ice cream, she would have been at risk of choking.
  8. If Castle Rise carried out a best interests decision, Mr A would most likely have disputed the decision to thicken his mother’s ice cream. However, on the balance of probabilities, Castle Rise would most likely not have given weight to Mr A’s views, as it would have posed a risk of harm to Mrs B.

Contacting the Speech and Language Therapist

  1. Mr A says Castle Rise failed to contact the SALT team.
  2. Mrs B’s care plan (dated 17 October 2018) stated staff should contact Mrs B’s GP/SALT if she coughed when eating or drinking.
  3. Castle Rise’s care records showed it referred Mrs B to the SALT team on 9 November. It noted Mrs B was worsening and she was storing food and fluids in her mouth. Three days later, the SALT team assessed Mrs B. It noted Mrs B was refusing food and fluids. It said Castle Rise should focus on providing mouth care if Mrs B was refusing food and fluids. That recommendation was in line with the support Mrs B’s GP had also recommended.
  4. Considering Castle Rise’s care records, I do not agree that Castle Rise failed to contact the SALT team. I consider it appropriately referred Mrs B to the SALT team in line with her care plan.

Restricting the family from feeding Mrs B

  1. Mr A says Castle Rise unfairly restricted the family from feeding Mrs B and this caused problems because she would only eat with them present.
  2. Mrs B’s care plan stated: "Only staff must assist [Mrs B] with her meals and drinks, this is very important as family are aware”. Castle Rise told me it completed a robust risk assessment when it admitted Mrs B on 15 October. It said Mrs B was at significant risk of choking and a trained member of staff should help her with food and fluids. Castle Rise added that a Senior Carer explained to Mr A why he could not help Mrs B with food and fluids, which he understood and accepted. Mr A agreed not to engage with staff at mealtimes.
  3. The Council’s safeguarding investigation found Castle Rise should have made that decision in Mrs B’s best interests. There was no consultation with Mr A or Mrs C. The Council recommended Castle Rise ensure it completes Deprivation of Liberty Safeguards assessments quickly when it makes decisions about residents’ care.
  4. While I understand Castle Rise’s reason to restrict the family at mealtimes, my view is that it made the decision with fault. Castle Rise’s care records showed Mrs B enjoyed mealtimes with her family. Mr A would have suffered distress at not being involved in the Castle Rise’s decision.
  5. Castle Rise told me it interfered with Mrs B’s Article 8 right because it had to protect Mrs B from choking. Therefore, it did not breach Mrs B’s human rights. I accept Castle Rise’s explanation why it interfered with Mrs B’s Article 8 rights. However, it has not provided any evidence from the time of the event to show its reasons. That poor record keeping is fault.
  6. During its safeguarding investigation, the Council has already recommended service improvements to Castle Rise to avoid similar fault happening to others. However, I consider Castle Rise needs to take further action to put right Mr A’s injustice.

Mrs B’s hydration needs

  1. Mr A says Castle Rise did not meet Mrs B hydration needs.
  2. The CQC’s fundamental standards state providers must assess people’s hydration needs in its first assessment of their care and support needs. People should also have enough to eat and drink to meet their nutrition and hydration needs.
  3. I have considered Castle Rise’s pre-admission assessment of Mrs B’s hydration needs and its fluid charts.
  4. Castle Rise’s assessment of Mrs B’s hydration needs was limited. The focus on that part of the assessment was to highlight her choking risk and need for thickeners. Mrs B’s hydration care plan was simply to be “well hydrated”.
  5. During Mrs B’s stay, Castle Rise used fluid charts to document her fluid intake. The charts do not clearly state what Mrs B’s daily intake target was. However, it was most likely 1000mls, as that was at the top of the charts each day.
  6. Mrs B never reached 1000mls. Staff recorded offering Mrs B fluids and when she refused them. Her fluid intake varied in the mid-hundreds until early November 2018. After then, Mrs B’s fluid intake decreased to the low hundreds two weeks before she died.
  7. On the evidence I have seen so far, I consider Castle Rise’s assessment of Mrs B’s hydration needs amounts to fault. It was not robust, and Castle Rise did not explain why her target was 1000mls. That was not in line with the CQC’s fundamental standards. However, I do not consider there was any injustice to Mrs B. I will explain why.
  8. Castle Rise correctly offered and recorded Mrs B’s fluid intake. Mrs B’s intake reduced because, on the balance of probabilities, she was nearing the end of her life. Towards the end of someone’s life, it is normal for someone to lose their appetite and drink less fluids.
  9. Mr A says Castle Rise did not give Mrs B cranberry juice, which was her preference.
  10. There is no evidence either Mrs B or the family stated the preference for cranberry juice. There is a section in the care plan for ‘Likes and Dislikes’. That section did not include cranberry juice. I do not consider Castle Rise missed the opportunity to give Mrs B cranberry juice. There is also evidence that Castle Rise gave Mrs B cranberry juice during her stay.

Pain relief

  1. Mr A says Castle Rise did not provide Mrs B with appropriate pain relief.
  2. The National Institute for Health and Care Excellence’s (NICE) 2014 guidelines ‘Managing medicines in care homes’ state: “1.14.2 - Care home providers should ensure that a process for administering ‘when required’ medicine is included in the care homes medicines policy (1.14.2). The following information should be included:
    • the reasons for giving the ‘when required’ medicine
    • how much to give if a variable dose has been prescribed
    • what the medicine is expected to do...
    • recording ‘when required’ medicines in the resident’s care plan”
  3. Castle Rise’s Management of Medicine Policy states all ‘when required’ medicine should have an “accompanying protocol which clearly states when the medicine is to be offered”. It also says the code G should be entered of the medication administration record (MAR) chart when medication is required. Staff should explain the reason for administration on the reverse of the chart.
  4. Mrs B’s care plan noted she could not verbalise pain, so staff should watch for physical signs of pain. This included: paleness, being clammy, grey skin, red flushed appearance, holding body, squinting and loss of appetite. Staff should contact the GP if they have any concerns.
  5. Mrs B’s sleeping care plan stated staff should administer paracetamol when required if Mrs B was restless at night.
  6. On 4 November 2018, Castle Rise decided to administer liquid pain relief to Mrs B when required (no more than 80ml in 24 hours), considering her observations for pain.
  7. Castle Rise told me it administered pain relief to Mrs B in line with the NICE guidelines, and appropriately recorded that on MAR charts.
  8. I have considered the evidence above. Castle Rise’s MAR charts show staff administered pain relief when required. When staff observed signs as per the care plan, they noted when they administered medication, if Mrs B refused the medication or if they did not provide the medication for any reason (such as sleepy). I consider Castle Rise administered medication to Mrs B in line with her care plan.

Change of GP

  1. Mr A says Castle Rise should not have changed his mother’s GP without informing the family.
  2. The Council’s safeguarding investigation found the change was necessary as Mrs B had moved out of her previous GP’s area. I agree with that view. Mrs B needed access to a GP, and that decision did not need to be made in her best interests. However, Castle Rise missed the opportunity to communicate changing Mrs B’s GP to Mr A. The evidence I have seen shows Castle Rise did not explain that decision to Mr A. While it says one of its staff tried to discuss the change with Mr A, and he would not engage, I have not seen any documented evidence of that attempted discussion. That was fault. Castle Rise should have documented any attempt to consult with the family about the decision to change Mrs B’s GP. However, I do not consider there was any injustice to Mr A or Mrs B.
  3. Castle Rise says it now discusses assigning a GP with relatives and records that conversation on admission. This is good practice, and I will not take any further action with Castle Rise on this point.

The Council

The Council’s support after the eviction notice

  1. Mr A says the lack of support from Mrs B’s Social Worker resulted in Holy Name serving notice to Mrs B in September 2018.
  2. The Council said the Social Worker did all she could to support Mr A and discussed concerns with Mrs B. The Social Worker appropriately advised Holy Name to contact other services for support when they were having issues with Mr A and Mrs C.
  3. I have already set out my provisional views about how Holy Name served notice to Mrs B and that this was due to the breakdown in the relationship with Mr A and Mrs C. I have seen evidence the Council’s Safeguarding Officer and Social Worker tried to persuade Holy Name to not serve notice to Mrs B. Provisionally, I do not consider there was any fault on the support that was provided.
  4. Mr A says the Social Worker delayed the move to Castle Rise by seeking a review of Mrs B’s needs first.
  5. I do not consider the Council were responsible for reviewing Mrs B’s needs. As Mrs B received CHC, CHCP was responsible for reviewing Mrs B’s needs. I consider CHCP acted in line with the National Framework when it reviewed Mrs B’s needs before she moved to Castle Rise.
  6. The Council said the Social Worker worked quickly to find an appropriate placement for Mrs B after Holy Name served notice.
  7. After the Council received the eviction notice, it had a duty to source an appropriate placement for Mrs B (on behalf of the CCG), which would meet her needs. The Council has provided me with evidence that it shared Mrs B’s situation with the providers in its areas and waited two weeks for responses. I consider two weeks was a reasonable amount of time to wait for responses. That search was unsuccessful. However, the Social Worker then approached Castle Rise directly, who then agreed to support Mrs B. I consider that was good practice, and the Social Worker acted quickly to arrange that support for Mrs B. Therefore, my current view is that the Social Worker did not delay the move to Castle Rise.

Negatively influenced Holy Name and Castle Rise

  1. Mr A says the Council negatively influenced the attitudes of Holy Name and Castle Rise.
  2. In October 2018, the Social Worker told Castle Rise Mrs B needed to move from Holy Name because the relationship with the family had broken down. Also, after Mrs B moved to Castle Rise, the Council told Castle Rise the family had previously made complaints about Holy Name (but did not share the details).
  3. I have considered the Council’s social care records, including discussions with Holy Name and Castle Rise.
  4. From the evidence I have seen so far, I do not agree the Council negatively influenced Holy Name’s and Castle Rise’s attitude to Mrs B and the family. The Council briefly mentioned to Castle Rise that Holy Name’s relationship with Mr A and Mrs C had broken down, and the family had made complaints about Holy Name. I consider the Council was simply explaining the circumstances of the move. Also, I have not seen any evidence from the time where the Council inferred they were a ‘problem family’.

The safeguarding investigation into Holy Name

  1. Section 42 of the Care Act 2014 says that a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.
  2. The Care Act requires that each local authority must make enquiries, or cause others to do so, if it believes an adult is experiencing, or is at risk of, abuse or neglect. An enquiry should establish whether any action needs to be taken to prevent or stop abuse or neglect and if so, by who.
  3. Mr A says the Council took too long to complete the investigation.
  4. The Council accepted it delayed completing its investigation.
  5. While the Care Act 2014 does not say how long a safeguarding investigation should take, my current view is that the Council significantly delayed its safeguarding investigation into Holy Name. That was fault which would have been distressing for Mr A.
  6. The Council agreed to set up a process to oversee active safeguarding investigations. This should ensure that no safeguarding investigation should take longer than two months. Managers would also have weekly meetings, so staff are supported when planning their investigations. The Council has provided evidence it has carried out these improvements to avoid similar fault occurring.
  7. Mr A says the Council did not involve him in the investigation and the investigation did not consider his allegation that a carer struck Mrs B in March 2017.
  8. The Council accepted it could have involved Mr A and Mrs C more in the investigation and that further enquiries should have been made into the specific allegation about a carer striking Mrs B.
  9. The Council agreed to provide training to staff to understand the importance of involving families in investigations. Also, it said it would deliver further training in the Mental Capacity Act to ensure decisions are in people’s best interests. The Council has provided evidence to show me it has commissioned an independent safeguarding trainer to work with the Council part-time. The Council has provided evidence it has carried out these improvements to avoid similar fault occurring.
  10. The Council told me its staff have reviewed the safeguarding policy around early decision making. Also, it said it would carry out further training for staff on the principles of safeguarding investigations. The Council has provided evidence it has carried out these improvements to avoid similar fault occurring.
  11. While the Council has apologised and carried out improvements to avoid the faults above happening again, it should do more to put right the injustice Mr A suffered from the Holy Name safeguarding investigation.
  12. Mr A says the Council’s safeguarding investigation into Holy Name (in February 2019) advised it would carry out a second safeguarding investigation into Holy Name. However, it later said that was a misunderstanding.
  13. The Council told me it did not agree to reinvestigate Holy Name. Rather it had agreed to carry out a safeguarding investigation into Castle Rise.
  14. Mr A refers to the following section from the 14 February letter: “One of the main recommendations and actions resulting from the safeguarding report is that a full Section 42 enquiry is launched, this will focus on the care given and treatment you received as a family at CR and HN care homes”.
  15. I agree that sentence implied the Council would carry out safeguarding enquiries into Holy Name, as well as Castle Rise. This raised Mr A’s expectation that the Council would reinvestigate Holy Name. I understand that fault would have caused Mr A frustration and disappointment.
  16. The Council should take action to put right the injustice Mr A suffered.

The safeguarding investigation into Castle Rise

  1. Mr A says the Council did not find out the facts in its investigation. Rather it relied on “he said, she said”.
  2. I have considered the Council’s safeguarding investigation report. The officer had to balance the views of multiple parties about some of the concerns, which may have given the impression of “he said, she said” as Mr A says. However, I am satisfied the officer appropriately considered the available evidence to determine the facts in the safeguarding investigation.

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Agreed actions

  1. Within four weeks of the final decision, Holy Name should:
    • Apologise to Mr A for the uncertainty caused from its poor record keeping around Mrs B’s personal care.
    • Apologise to Mr A for the frustration caused by not robustly or formally responding to his complaints in September 2018.
    • Apologise to Mr A for the distress and uncertainty it caused by not making the decision to restrict visiting hours in Mrs B’s best interests.
    • Apologise to Mr A for the distress caused by charging an improper top-up.
    • Pay £700 to Mr A to recognise the emotional impact the faults above had on him.
    • Repay £7,564.46 to Mr A for the improper top-up charges he contributed between October 2015 and October 2018.
    • Repay £1,483.75 to Mr A’s father’s estate for the improper top-up charges he contributed between October 2015 and November 2016.
    • If Holy Name does not consider the above figures are correct it should provide evidence to show how much it should repay.
  2. Within eight weeks of the final decision, Holy Name should:
    • Ensure its staff receive refresher training on the importance of consistent record keeping of personal care. That should clarify where it records specific care and define terms such as “all personal care” for all staff providing care and support.
    • Review its complaints policy and provide evidence that it provides robust responses to complaints. It should also ensure the contact details it has for other services (including the CQC, Council, CCG, LGSCO and PHSO) are up to date.
    • Provide training to relevant staff about the Mental Capacity Act: Code of Practice and best interest decision making.
    • Review its best interest decision making process. The process should ensure consideration is given to any impact to residents’ and families’ human rights.
    • Ensure any other residents receiving CHC funding are not paying the difference between the cost of its care and what it receives in CHC funding.
    • Provide training to relevant staff about care provider’s roles and responsibilities about CHC funding and top-ups in line with the National Framework.
  3. Within four weeks of the final decision, Barchester should apologise and pay £200 to Mr A to recognise the distress it caused him by not making the decision to restrict his involvement at mealtimes in Mrs B’s best interests.
  4. Within eight weeks of the final decision, Barchester should ensure Castle Rise has a process whereby, when it makes a change to a resident’s care and support, it considers and documents any impact or interference to their human rights.
  5. Within four weeks of the final decision, the Council should:
    • Apologise to Mr A for the distress and uncertainty it caused by not making the decision to restrict Mrs B’s visiting hours in her best interests. It should also recognise the impact on Mr A’s human rights.
    • Pay Mr A £200 to recognise the emotional impact the faults above had on him. That includes the distress and frustration he suffered from its handling of Holy Name’s safeguarding investigation.
  6. If any of the organisations have already carried out the remedies above, they should provide evidence of this to me.

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Final decision

  1. For the reasons explained between paragraphs 33 and 191, I have completed my investigation. The organisations will remedy any injustice in the ‘Agreed actions’ section above.

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Parts of the complaint that I did not investigate

Holy Name

  1. Mr A says a carer struck Mrs B in March 2017. Holy Name strongly denied that allegation. I consider this complaint is late Mr A could have complained to the Ombudsmen sooner than he did, within 12 months of the incident occurring. Also, Mr A has not provided a good reason why he did not approach the Ombudsmen sooner. Therefore, I have not investigated that part of Mr A’s complaint, so cannot comment on it.
  2. Mr A says it unfairly served an eviction notice in April 2017. For the same reasons above, I consider this complaint is late. In any event, I do not consider there was any injustice to Mr A or Mrs B, because Holy Name revoked the eviction notice. Therefore, I have not investigated that part of Mr A’s complaint.
  3. Mr A says in April 2018, following a seizure, a paramedic said Mrs B’s paperwork was missing. The paperwork noted Mrs B should not go to hospital unnecessarily because she had a Do Not Attempt Resuscitation (DNAR) order in place. I have not seen any evidence Mr A has raised this complaint with Holy Name. Also, I am not persuaded there was a significant injustice resulting from any potential fault. The injustice is speculative, and the evidence does not suggest Mrs B suffered any injustice from the missing paperwork. Therefore, I have not investigated that part of Mr A’s complaint.
  4. Mr A says a nurse exposed Mrs B during an altercation over changing her pad. Holy Name strongly denied that allegation. There are conflicting reports of what was said during that time. I am unlikely to reach a finding about what was said during the altercation. Therefore, I have not investigated that part of Mr A’s complaint, so cannot comment on it.
  5. Mr A says it did not serve the eviction notice letter privately in September 2018. The Council did not find evidence staff opened that letter before serving it to Mr A. However, it asked Holy Name to ensure it sends eviction notice letters recorded delivery or handed to the person by the manager. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A.
  6. Mr A says Holy Name made false allegations about what was said when Mrs B was choking in September 2018. There are conflicting reports of what was said during that time. I am unlikely to reach a finding about what was said during the altercation. There are conflicting accounts of the events, and I most likely would not be able to verify which version is accurate. Therefore, I have not investigated that part of Mr A’s complaint.

Castle Rise

  1. Mr A says staff left medication for other people in Mrs B’s room and two tablets went missing. The Council identified Castle Rise’s poor record keeping in its safeguarding investigation and recommended it put improvements in place. There is also no evidence from the time that tablets were mistakenly given to Mrs B. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A on this issue.
  2. Mr A says the heating in Mrs B’s room was broken. During its safeguarding investigation, the Council found no evidence of problems with heating. Also, that issue was not reported to the CQC.
  3. Mr A says staff placed Mrs B’s bed on her oxygen wire one time. During the Council’s safeguarding investigation, a nurse says she checked the wire after the family had requested. The wire was not trapped, and there was no evidence Mrs B’s oxygen was compromised. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A on this issue.

The Council

  1. Mr A says the Council’s safeguarding investigation into Holy Name did not consider his issues about Castle Rise also. The Council upheld this complaint and agreed to carry out a safeguarding enquiry into Castle Rise. I am satisfied the Council has remedied the injustice to Mr A by agreeing to investigate his issues about Castle Rise. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A on this issue.
  2. Mr A says the Council’s safeguarding investigations into Holy Name and Castle Rise did not recommend apologies to him. Safeguarding investigations are not there to obtain apologies. I understand why Mr A would like one. However, my investigation has identified areas where apologies are necessary from each organisation. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A on this issue.
  3. Mr A says the Council’s report into how it handled the Holy Name safeguarding investigation did not identify failings in Mrs B’s care, the restrictions imposed on him and serving notice. The Council’s report was clear that it was reviewing how it handled the safeguarding investigation. The Council said it would address the safeguarding issues separately. I do not consider an investigation by the Ombudsmen could provide anything further for Mr A on this issue.

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Investigator's decision on behalf of the Ombudsman

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