Summary: There were procedural faults by a care home during the complainant’s stay, in a placement commissioned by the Council. The Council undertook a safeguarding investigation which highlighted this, and worked with the care home to make several improvements. However, these faults did not cause an injustice to the complainant.

The complaint

1. The late complainant, to whom I will refer as Mrs W, is represented by her son, to whom I will refer as Mr M.
2. Mr M complains about the standards of care Mrs W received during her stay in Deerplay Rest Home, in a placement commissioned by the Council. Mrs W suffered a number of falls during her stay, which Mr M considers contributed to her death.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. If we are satisfied with a council’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)
5. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
6. We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), as amended)
7. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (section 26A or 34C, Local Government Act 1974)

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How I considered this complaint

8. I reviewed Mr M’s correspondence with the Council, Deerplay’s care logs, the Council’s case notes and the report of its safeguarding investigation.
9. I also shared a draft copy this decision with each party for their comments.

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What I found

10. In February 2018, Mrs W fell at home. She was admitted to hospital and underwent treatment for a broken hip. She had previously been diagnosed with a number of other medical conditions, and was thought possibly to be suffering dementia.
11. On 15 March, the hospital referred Mrs W to the Council, with a recommendation for a short-term care placement.
12. The Council undertook an assessment of Mrs W. It noted she was considered to be at a high risk of falls. On 22 March, a social worker explained to Mr M that Mrs W required a general nursing placement. The social worker recorded Mr M agreed with this.
13. The Council provided Mr M with a list of local nursing homes. However, on 29 March, Mr M said he would prefer if Mrs W were discharged instead to a care home.
14. On 4 April, Mr M told the Council he wished to explore Deerplay as an option. The Council said it would contact the home to ask it to assess Mrs W. The home did so, and confirmed on 5 April it could accommodate her from the following day. However, Mr M then told the Council that Mrs W was suffering from an infection and could not be discharged for another three days.
15. On 10 April, Deerplay confirmed it had another vacancy and could take Mrs W. She was discharged to the home the same day.
16. On the evening of 10 April, Mrs W suffered a fall at the home. She was taken to hospital, but not admitted as an in-patient, and returned to the care home on 11 April.
17. On 14 April Mrs W fell again. She was again taken to hospital, but discharged with a few hours.
18. On 16 April, Deerplay contacted the hospital discharge team to say it could not meet Mrs W’s needs. The hospital explained the Council was now responsible for Mrs W.
19. On 24 April, Deerplay contacted the Council, to say it could not meet Mrs W’s needs. It explained Mrs W was frequently agitated, and aggressive or violent towards staff. Deerplay was not registered for specialist dementia care and it considered this was what Mrs W needed.
20. Deerplay had been under the impression Mrs W’s stay had been commissioned for two weeks, but the Council explained it was a four-week placement, due to end on 8 May.
21. Mrs W fell again on 24, 26, 27, 28, 29, and 30 April, and on 2 May. After the fall of 27 April, Mrs W was again taken to hospital and discharged after a few hours.
22. But on 2 May, Mrs W was taken to hospital and it was discovered she had again broken her hip.
23. On 3 May, a safeguarding alert was raised by the local ambulance service, due to the number of times Mrs W had fallen. During the investigation, Mrs W’s other son, Mr M’s brother, raised concerns that Deerplay had been placing tables in front of Mrs W’s chair, to deter her from standing up. He also said Mrs W had been dehydrated on arrival at hospital on 2 May, and did not make serious efforts to encourage Mrs W to take her medicine.
24. On 12 May, Mrs W passed away in hospital.
25. On 7 August, the Council completed its safeguarding investigation. It substantiated the concern about the placement of tables, and about Mrs W’s medication. It said it could not draw a conclusion about the dehydration concern. Its report also recorded the Coroner’s findings that Mrs W’s falls had not contributed to her death.
26. On 15 August, Mr M submitted a complaint to the Council. He said he had received invoices from the Council for Mrs W’s stay at Deerplay, but that he had been led to believe her stay would not be charged. He also complained about the standards of care she had received at Deerplay.
27. The Council replied on 27 September. It accepted the charging arrangements had not been properly explained, and agreed to waive the charges for Mrs W’s stay. It also apologised for the failings Mrs W had experienced at the care home, but had undertaken a thorough safeguarding investigation and made a number of recommendations to Deerplay, which it had shared with the Care Quality Commission (CQC).
28. Mr M submitted a stage 2 complaint on 12 October, to which the Council responded on 5 December. It reiterated it had upheld his complaint about the charging matter.
29. Mr M had complained the Council had not maintained contact with the family or care home, and had not intervened when it became apparent Mrs W was repeatedly falling. The Council explained it had arranged for a review of the placement after four weeks, which was its normal practice. However, it expected the home to make contact if there was any significant change in circumstances.
30. The Council said falls had been included in its risk assessment of Mrs W, but said it was not always possible to prevent falls from happening, and the aim was instead to minimise the risk. It said the correct advice had been given to Deerplay when it contacted the Council about Mrs W.
31. The Council confirmed it had kept in contact with both the home and hospital during Mrs W’s admission there, but accepted it should have made Mr M aware of this.
32. Mr M referred Mrs W’s complaint to the Ombudsman on 13 February.

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Legislative background

Mental capacity

33. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
34. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

35. An assessment of someone’s capacity is specific to the decision to be made at a particular time.

Deprivation of Liberty Safeguards (DoLS)

36. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and 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.
37. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home, hospital or supported living accommodation to apply for authorisation.
38. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the MCA 2005. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of his or her liberty.

Standards of care

39. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve.
40. Regulation 12 covers ‘Safe care and treatment’. It says:

“Care and treatment must be provided in a safe way for service users. [The] things which a registered person must do to comply … include:

(a) assessing the risks to the health and safety of service users of receiving the care or treatment;

(b) doing all that is reasonably practicable to mitigate any such risks;

(c) ensuring that persons providing care or treatment to service users have the qualifications, competence, skills and experience to do so safely…”

Safeguarding

41. 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. (section 42, Care Act 2014)

Analysis

42. Mr M considers Mrs W received inadequate care at Deerplay Rest Home, and that this contributed to the number of falls she suffered there, and ultimately to her death.
43. Deerplay’s daily logs suggest the main cause of Mrs W’s repeated falls was that she needed assistance to mobilise, but would frequently attempt to do so without asking for help from staff. This included getting out of bed to use the toilet but failing to call staff to her room first, and getting up out of her chair in the home’s communal area.
44. Under the Mental Capacity Act, a person with an established mental impairment might be assessed as lacking capacity. The assessment should relate to a person’s capacity to make a specific decision at a specific time. But a person should not be considered to lack capacity simply because they make a decision which might be seen to be unwise.
45. In order to justify placing restrictions on a person’s ability to move independently, they would first need to be assessed as lacking the capacity to weigh up the risks of doing so. If such an assessment were made, the relevant establishment – such as a care home – should then make a DoLS application to the local authority, to authorise the restrictions.
46. In Mrs W’s case, the Council undertook a mental capacity assessment while she was in hospital, before her discharge to Deerplay. This assessment recorded Mrs W’s mental functioning was impaired at that time because of delirium, seemingly arising from an infection. The outcome of the assessment was that she lacked capacity to decide where she should be discharged. With Mrs W’s family’s input, the Council decided it was in Mrs W’s best interests to have a temporary stay in a care home.
47. However, the assessment did not seek to establish whether Mrs W had the capacity to weigh up the risks of attempting to mobilise without assistance, which is a different issue.
48. After Mrs W’s death, her other son – Mr M’s brother – raised a concern that staff at Deerplay had been attempting to discourage her from getting out of her chair unaided by placing a table in front of her. It also became apparent they had placed Mrs W in a bedroom with floor sensors, to alert staff if she got out of bed.
49. During the safeguarding investigation, the investigator discussed this matter with the care home manager, to whom I will refer as Mr B. The safeguarding report says:

“Discussions were undertaken with [Mr B] who stated [Mrs W] had capacity surrounding mobilising and the risks that presented when moving around the care home, therefore the tables and sensor mats were approved by [Mrs W] to be put into place. However there was no information within [Mrs W] care plan or documentation to suggest discussions had been undertaken with [Mrs W] surrounding mobilising and what risks [Mrs W] could identify if she continued to walk around the care home, alone.

“There was also no documented consent sought from [Mrs W] surrounding having a table placed in front of her while in the lounge. There were also no consent documented surrounding sensor mats being placed in [Mrs W's] bedroom. I enquired with [Mr B] if care staff/senior carer's or [Mr B] undertook a robust discussion with [Mrs W] surrounding the risk of falling when she was mobilising around the care home, [Mr B] stated 'no as [Mrs W] had capacity'. However upon viewing [Mrs W's] care file [Mr B] had completed a Mental Capacity Assessment highlighting [Mrs W] lack capacity surrounding mobilising.”

50. The report then quoted Deerplay’s mental capacity assessment, which said:

"[Mrs W] struggles to understand basic information, given in simple terms, such as understanding menu choices. Staff have encouraged her independence by presenting choices to her, such as what to wear, eat and drink. [Mrs W] has not been able to take in more complex information, such as the importance of not standing without first calling for a carer to assist her."

51. As I have stated, Mrs W could not automatically be deemed to lack capacity to make a decision about her mobility, even if – as was the case – to do so without assistance appeared unwise, because of the risk to her safety.
52. While the Council had assessed Mrs W as lacking capacity, this was only for the decision about where she should go after her hospital discharge. This could not have formed the basis of a DoLS application about restricting Mrs W’s mobility, as Deerplay then attempted to do.
53. However, Deerplay’s own assessment does appear to conclude Mrs W lacked capacity to decide whether it was safe to mobilise without assistance.
54. This causes me concern on a number of levels. First, it appears Mr B was unaware of, or did not appreciate the implications of, Deerplay’s capacity assessment. He told the safeguarding investigator that Mrs W did have capacity, when the home’s assessment said she did not. I cannot say why Mr B made this error.
55. Second, regardless of the outcome of the capacity assessment, Deerplay’s attempts to restrict Mrs W’s mobility were inappropriate.
56. If Mrs W did have capacity, it would have been her own decision whether to mobilise independently. Staff could not lawfully attempt to prevent her from doing so, regardless of the risks.
57. Alternatively, if Mrs W did not have capacity – as Deerplay’s assessment concluded – then the home should have submitted a DoLS application to the Council to authorise the use of restrictions. Without this, staff could still not lawfully restrict Mrs W’s movement, regardless of the question of capacity.
58. So, in either case, Deerplay should not have made these efforts to restrict Mrs W’s mobility.
59. I must therefore find fault here, although I note the Council has already recognised this.
60. However, and despite my criticisms, I cannot see how this could be said to have contributed to Mrs W’s falls. In fact, it appears the opposite is the case – Deerplay was evidently very conscious of Mrs W’s falls risk, and made a number of efforts to mitigate this. These efforts were, in the procedural sense, inappropriate, but this does not mean they caused Mrs W to fall.
61. As the Council said, there is a limit to what can be done to prevent a person falling. It is not the case that risk can be entirely eliminated. In Mrs W’s case, it is clear she was determined to mobilise independently, regardless of the carers’ efforts to discourage her from doing so. It is difficult to see what more Deerplay could have done to prevent Mrs W from falling.
62. The safeguarding investigation also substantiated the concern raised by Mr M’s brother about Mrs W’s medication.
63. Mr M’s brother was a frequent visitor to the home during Mrs W’s stay. Mrs W had been prescribed a number of different medications, but was often reluctant to take them. Mr M’s brother told the investigator that care staff would not make serious efforts to encourage Mrs W to take her medicine, and would instead simply record a refusal if she did not comply with their first request.
64. The investigator expressed concern about the care home’s medication administration record (MAR). It said a number of entries for Mrs W were missing staff signatures; that staff had left entries blank because (for example) Mrs W was in hospital, rather than explicitly noting this as the reason no medicine was given; and that one occasion, a staff member had recorded an incorrect name for a medicine. The investigator also highlighted inconsistencies in the MARs and a general difficulty in understanding the entries.
65. The investigator said the records demonstrated Mrs W had refused some medication, but it was difficult to conclude how much effort staff had made to encourage her. However, the investigator found the concern about medication to be ‘substantiated’, because of the gaps in the records.
66. The investigator made a finding of ‘inconclusive’ on the question of whether Mrs W had been dehydrated on arrival at hospital.
67. The investigator again highlighted poor record-keeping in the home’s fluid charts. For example, Mrs W needed thickening powder to be added to her drinks to help her swallow, and while staff had recorded the amount of powder they had used, they had not recorded the volume of fluid they had mixed it with. They had also, again, left the record blank when Mrs W was in hospital, rather than noting this as the reason they had not given her fluids.
68. But the investigator decided this did not give sufficient evidence to make a firm finding on the dehydration issue.
69. In summary, it is clear the safeguarding investigation evidenced a number of problems with Mrs W’s stay at Deerplay. The confusion about Mrs W’s capacity and the DoLS is particularly concerning.
70. However, where fault has been established, the Ombudsman’s role is then to determine whether the fault is likely to have caused a significant injustice to the complainant.
71. I understand Mr M believes the standards of care Mrs W received led to her repeated falls. I also appreciate why he believes this contributed to her death.
72. But, even accepting the safeguarding investigator’s findings, I can see no evidence to link this to Mrs W’s falls. As I have said, there is no suggestion the mobility restrictions, inappropriate as they were, actually caused Mrs W to fall. And while the investigator discovered problems with Deerplay’s medication records, there is again no suggestion this was a causal factor.
73. On the evidence, I am satisfied Mrs W’s falls were the result of her own determination to mobilise without assistance, and despite the best efforts of staff to dissuade her.
74. Further to this, the safeguarding report refers to the Coroner’s findings on Mrs W’s cause of death:

"1a) Septicaemia 1b) Occult origin, 2) frailty, chronic obstructive pulmonary disease, hypertension. She died in hospital following admittance post fall however the Dr issuing stated the fall had not contributed to her death."

75. So, even if I had found Deerplay’s actions somehow caused Mrs W to fall – which I have not – I could not find this contributed to her death.
76. At the conclusion of the safeguarding investigation, the Council agreed a number of improvements with Deerplay. This included work around improving its medication and fluid record-keeping, and training for all staff and managers in DoLS and the Mental Capacity Act. Deerplay responded positively to this and appears to have implemented the improvements. I cannot see what the Ombudsman could add to this and so I make no recommendations for service improvements.
77. And as I am satisfied there is no evidence any of this caused Mrs W’s falls, or any other harm, I cannot find it constitutes an injustice to her. I therefore make no recommendation for the provision of a remedy.

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Final decision

78. I have completed my investigation with a finding of fault which did not cause injustice.

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Investigator's decision on behalf of the Ombudsman