The Ombudsman's final decision:
Summary: Mr X complains about the support provided to Mrs Y by the Council and the way it dealt with his complaints about this, which included safeguarding concerns. He says this impacted significantly on Mrs Y’s health and wellbeing and caused the family much distress, time and trouble. The Ombudsman finds the Council at fault in all these issues. The Council will apologise and pay Mr X £500. It will also check all residents have adequate care plans and records and monitor improvements. It will also re-train staff in complaint handling.
- The complainant, whom I shall refer to as Mr X, complains on behalf of his late mother, Mrs Y, that the Council:
- did not provide adequate support to Mrs Y;
- did not deal with Mr X’s complaints about this; and
- did not consider the issues he raised under its safeguarding procedures.
- Mr X says the lack of support caused a significant impact on Mrs Y’s health and wellbeing. She was admitted to hospital with severe dehydration and high blood sugar within 18 hours of leaving Gold Hill Residential Home (also known as Blossom House). It also caused the family much distress, time and trouble.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
- We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
- their personal representative (if they have one), or
- someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended)
- In this case, Mr X is Mrs Y’s son and we have decided he is a suitable person to complain on Mrs Y’s behalf.
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- I considered information from the Complainant and from the Council.
- I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
What I found
- When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the service of a commissioned organisation, I have made recommendations to the Council.
The Care Quality Commission
- The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) 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.
- The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
- Regulation 9 says providers “must make sure that each person receives appropriate person-centred care and treatment that is based on an assessment of their needs and preferences”.
- CQC’s guidance for providers on this regulation says:
- “Where a person lacks the mental capacity to make specific decisions about their care and treatment, and no lawful representative has been appointed, their best interests must be established and acted on in accordance with the Mental Capacity Act 2005. Other forms of authority such as advance decisions must also be taken into account”.
- “Providers must actively seek the views of people who use their service and those lawfully acting on their behalf, about how care and treatment meets their needs. Providers must be able to demonstrate that they took action in response to any feedback”.
- “Where food and/or drink are provided for people who use services, they must have a choice that meets their needs and preferences as far as is reasonably practical”.
- “Providers must make sure that they assess each person's nutritional and hydration needs to support their wellbeing and quality of life. This includes when there is no expected cure for an illness”.
- “Providers must do all that is reasonably practicable to mitigate risks. They should follow good practice guidance and must adopt control measures to make sure the risk is as low as is reasonably possible. They should review methods and measures”.
- “Relevant health and safety concerns should be included in people's care and treatment plans/pathways. This includes allergies, contraindications and other limitations relating to the person's needs and abilities”.
- “Staff must follow plans and pathways”.
- “Providers must meet people's nutrition or hydration needs wherever an overnight stay is provided as part of the regulated activity or where nutrition or hydration are provided as part of the arrangements made for the person using the service”.
- “Nutrition and hydration assessments must be carried out by people with the required skills and knowledge. The assessments should follow nationally recognised guidance and identify, as a minimum:
- requirements to sustain life, support the agreed care and treatment, and support ongoing good health
- dietary intolerances, allergies, medication contraindications
- how to support people's good health including the level of support needed, timing of meals, and the provision of appropriate and sufficient quantities of food and drink”.
- The NHS online information says Metformin is used to treat type 2 diabetes. It “does not usually cause low blood sugar” when taken on its own. However, this can happen with other diabetes medication such as gliclazide. It says low blood sugar may happen if you “eat meals irregularly or skip meals” and “do not eat a healthy diet and are not getting enough nutrients”. Also, if you have kidney or liver problems.
- The NHS information also says type 2 diabetes is an illness where the body does not make enough insulin or the insulin it makes does not work properly. This can cause high blood sugar levels. It says once stable, checks on your average blood sugar levels should be done every six months by a GP or diabetes nurse.
- NHS guidance on what to eat with type 2 diabetes says “keep sugar, fat and salt to a minimum” and “eat breakfast, lunch and dinner every day – do not skip meals”.
- The NHS information online says the symptoms of the later stages of dementia include:
- Appetite and weight loss problems
- Trouble eating or swallowing
- Depressive symptoms
- The Mental Capacity Act 2005 (the Act) sets out how to decide for people who lack the mental capacity to decide for themselves. The Act and the Code of Practice (2007) describe the steps a person should take when dealing with someone who may lack capacity to decide for themselves. It describes when to assess a person’s capacity to decide, how to do this, and how to decide on behalf of someone who cannot do so themselves.
A person must be presumed to have capacity to decide unless it is established that he or she lacks capacity.
- 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 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 also has to consider if there is a less restrictive choice available that can achieve the same outcome.
- If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the court of protection might need to decide what is in the person’s best interests.
- The Council’s complaints policy says:
- “An individual can complain when:
- They are in receipt of or have received a service.
- They are a person affected, or likely to be affected by the action, omission or decision of the Authority.
- Have died.
- Are unable to make a complaint themselves due to lack of physical or mental capacity.
- Have asked a representative to make a complaint on their behalf.
- Mrs Y lived at home with her husband, of nearly 60 years, Mr Y. Mr and Mrs Y were still living independently in rented accommodation at the start of these events. Mrs Y had various medical conditions including diabetes, which she had for many years, and recently diagnosed dementia.
- At the end of May 2018, Mr and Mrs Y caught a bus to go shopping in the town as usual, had lunch out and returned by taxi. The following day, Mr Y was admitted to hospital. Mrs Y went with him as a ‘social’ admission. This means Mrs Y had no reason to be admitted to hospital but she was not safe at home on her own and there was no suitable alternative. At this point, there were no concerns with her diabetes or her other medical conditions.
- A few days later, in early June, Mr Y sadly died. The Council arranged for Mrs Y to move to Gold Hill Residential Home. Gold Hill Residential Home, now known as Blossom House Residential Home, is run by Wishmoor Limited (the Care Provider).
- The Council assessed Mrs Y and noted she could mobilise, and eat a suitable diet, independently. She was mostly continent, her skin integrity was intact, and she was a little muddled. The assessor advised family that a package of care would normally start at home. The family were concerned that she should not return home and the assessor said she would assess Mrs Y’s needs over time while she was at Gold Hill.
- Mr X says from the start, the Care Provider told the family that Mrs Y didn’t want any breakfast and didn’t want to get up. She would regularly stay in her room without company. Mr Y had always taken the time to get her up and dressed, make sure she had breakfast and give her medication every morning. Mr X says regular eating and medication was important for her health conditions.
- After a few days, Mr X says the family became concerned that Mrs Y’s legs were swelling; they felt this was a sign of not having moved much. Staff assured the family that a GP would be called to see her on the Monday and advised family that Mrs Y had just lost her husband and was just grieving. There is no note of these concerns in the Care Provider’s records.
- On 25 June the nurse practitioner visited and checked Mrs Y.
- Almost one month after Mrs Y moved to Gold Hill, staff from another care home assessed her and family hoped she would move there that week.
- On 7 July, Mr X says family found Mrs Y in some discomfort with faeces around the room and over her hands and body where some of it had dried. The family cleaned her up and say they could not find any staff to advise.
- The Care Provider’s records note a district nurse visited on 11 July to check a sore area on Mrs Y’s buttocks. The nurse prescribed a skin protectant for Mrs Y and also arranged for a mattress and chair cushion.
- The Care Provider’s records note that Mrs Y had refused personal care and had hit out at staff when they tried to assist her. The records also note the Care Provider called the surgery and asked the nurse practitioner for a check up as Mrs Y was “remaining in bed and hitting out at staff when assisting her”. The Care Provider has provided a flyer from the surgery which advises to contact the nurse practitioner in the first instance with concerns about a resident’s health. Mr X said Mrs Y told the family she didn’t want a wash because the water was cold and staff had made a comment about drowning her.
- The nurse practitioner visited and said Mrs Y did not have a raised temperature; she would refer to the GP about her mental state
- A few days later, two family members expressed concern about Mrs Y’s condition as she appeared vacant. The Care Provider’s notes record the family’s concerns about Mrs Y being sick, not eating and a change of medication. The Care Provider said it would arrange for a GP visit on Monday.
- Mr X says staff assured the family the doctor had been and said they would not test blood sugar levels but it was the nurse practitioner who had visited. Two days later, Mrs Y was drowsy and difficult to wake in the afternoon. Staff said they would get the doctor to see her again. They said Mrs Y had pressure sores and was uncomfortable which caused her to be aggressive and staff had difficulty delivering care. When Mr X had concerns about her staying in her room and not eating or drinking adequately, staff told him that Mrs Y had only recently lost her husband. A staff member also said family had “dumped” Mrs Y at Gold Hill when her husband had just died, so what did they expect? A staff member acknowledged this was inappropriate when he complained about the comment.
- On 17 July, the district nurse visited to check Mrs Y’s skin again and two days later, a nurse checked her blood pressure.
- On 19 July, a GP advised the Care Provider to stop another of Mrs Y’s medication as he would prescribe a lower dose.
- On 25 July, another GP visited. The Care Provider’s records note that he stopped some of Mrs Y’s medication as her blood test results showed her liver was not functioning properly. The GP said this should be reviewed in a few days by a GP. Mr X says this should have said Mrs Y’s kidneys were not functioning properly, not her liver. He says a paramedic picked this up later when a handwritten transfer note referred to a test they knew was for kidney function, not liver.
- The family says staff were repeatedly serving Mrs Y with sugar in her tea and coffee. They were also giving her cakes and other sweet items including main meals like sweet and sour chicken. This was not appropriate for her health needs and was not what she would have at home. Staff told family they gave Mrs Y sweetened foods to counterbalance the reduction in the amount she was eating. There is no record of this approach in any care plan. Mr X says family asked staff, on several occasions, to check her blood sugars, to give her a simple English diet, and not to give her sweet drinks or food.
- The family were keen for Mrs Y to move to another care home and eventually, the care home in question agreed to accept Mrs Y at the same rate as Gold Hill. However, the Council’s contract set out the wrong responsibilities for the new care provider under the General Data Protection Regulation (GDPR). It needed changing and it was another three weeks before Mrs Y moved at the end of July 2018. Mrs Y was at Gold Hill for a total of seven weeks.
- Mr X says eighteen hours after Mrs Y moved to the new care home, she was admitted to hospital with kidney failure and “dangerously high blood sugar levels”. She was also malnourished.
- Sadly, Mrs Y died just over two weeks later.
- Mr X found photographs of Mrs Y on the Care Provider’s public Facebook page. The Care Provider had published these photos without consent. Mr X says Mrs Y would have found these “humiliating” and she would have been “distraught and embarrassed”. He asked the Care Provider to take one down, which it did, then he found another.
The Care Provider’s records
- The Care Provider’s records included no information about Mrs Y’s life, interests or family. They do include information about Mrs Y’s health conditions and that she needed to eat a diabetic diet.
- The care plans and risk assessments noted the following:
- Mrs Y “to be encouraged to change her position every two hours by walking round the room, going to the toilet, going to the dining room for her meals”. Also, if she was unwell and in bed, to be encouraged to turn every two hours. “Pressure areas to be checked regularly during the day and night”.
- Mrs Y “will benefit from being able to mobilise around the home”.
- “The risk could be her sugars could become low”. There was no information to explain how this might happen, how it might be identified, or what should be done if they did become low.
- “I would like staff to come and ask me if I want to get up if I am not already out of bed”.
- “I will need assistance from staff with washing feet”. “Staff to assist [Mrs Y] with washing her feet and reporting any changes”.
- “I need a good healthy diet”.
- “Staff to prompt [Mrs Y] with her meals as will often think she has already had them”.
Mr X’s complaints
- Mr X complained to the Care Provider on 18 October 2018. He explained Mrs Y had rapidly deteriorated during her short time at Gold Hill and had died a few weeks later. He felt this was due to the poor care she had received at Gold Hill. Mr X asked for all the information it held about Mrs Y’s care.
- On 21 October 2018, Mr X sent his complaint to the Council as it had arranged the placement.
- On 22 October 2018, the Council wrote to Mr X in response to his complaint. It said that he could not use the statutory complaints process because he did not have a legal authority to act on Mrs Y’s behalf. It said this was because it could not share information about Mrs Y with him without legal authority and referred him to the CQC and to the Ombudsman.
- Mr X responded saying he had found the letter of 22 October highly upsetting. On 29 October, the Council wrote to Mr X again. It apologised and said it had not intended it to cause offence and had passed his concern to the Council’s quality assurance team. It restated its position that it could not deal with his complaint. The Council responded to a further email from Mr X. It said “Because your attachments have been encrypted they have automatically gone into quarantine, which is normal practice. I am therefore unable to read them. Should you wish to provide further information you can do so by writing to me”. The officer provided the postal address. The Council says its policy is not to open emails from an unknown source.
- On 4 December, the Care Provider emailed Mr X with condolences. It said it had received his complaint and had carried out an internal investigation. Mr X was unhappy with this response. The Care Provider said it was happy to send all relevant documents direct to solicitors and asked that the solicitors write direct to the Care Provider to request this. When Mr X chased for the information, the Care Provider said it had been advised that Mr X should provide evidence such as grant of probate, stating that he was executor. Mr X explained probate was not needed and there had been no will. He offered his birth certificate.
- The Care Provider sent an undated letter which noted Mr X had met with the home manager. It said “we are working hard towards improving the overall standard of the home”.
Was there fault which caused injustice?
Support provided to Mrs Y
- The Care Provider’s records were wholly inadequate. It did not have enough information about Mrs Y, although her family were regular visitors and able to provide information. It did not involve the family in the care and the records suggest it failed to take their concerns seriously. In addition, those actions that were noted, such as ensuring Mrs Y changed position every two hours and giving a diabetic diet, were not carried out. This was fault and caused Mrs Y a significant and avoidable increased risk of harm.
- Although the Care Provider had recorded that Mrs Y had diabetes, there was no care plan that specifically dealt with her needs around this. The hospital record noted it was type two diabetes but I saw nothing in the Care Provider’s records to say what type of diabetes she had or what the risks were around this. Mrs Y took regular medication to lower her blood sugar; this suggests she was at risk of high blood sugar without the medication and a suitable diet. This risk was not mentioned. She would also have been potentially at risk of low blood sugar if she was not eating and continued to take the medication. The GP changed this medication, so the risks changed but there was no updated risk assessment or care plan. I saw no details of signs to look out for, or actions to take to minimise risk. The food provided for Mrs Y by the Care Provider did not fit with the NHS advice to “keep sugar, fat and salt to a minimum”. It should have been clear in her care plans what food was suitable. If the Care Provider had decided to give her more sugary food and drinks, the reasons should be clear in the records and should be supported by advice from professionals. This was fault.
- While Mrs Y may have been able to make simple choices about what she ate or drank, the evidence suggests she was probably unable to decide about her overall diet. The Care Provider should therefore have been providing food and drinks in her best interests. In order to understand her best interests, it needed to consult with her family. The Care Provider could not force Mrs Y to eat and drink and the significant deterioration in her intake may have been unavoidable. However, this is not evidenced because there are no records to suggest the Care Provider made any significant effort to encourage her to eat and drink. I also saw no evidence it had considered whether she was more inclined to eat some foods than others, as there were times when she ate well. I noted Mrs Y often refused breakfast and yet on most days she was offered the same – cornflakes and toast. I saw no evidence that it tried alternatives or spoke to the family to find out what she might prefer. This was fault.
- The family’s concerns focussed on the diabetes, but Mrs Y also had dementia and other conditions; her symptoms were not necessarily related to the diabetes. Mrs Y had also moved twice and lost her husband in little more than one week, which is likely to have been significantly disorientating for someone with dementia. For this reason, it is difficult to understand the reasons for Mrs Y’s apparent incontinence or decrease in food and drink intake which could have been linked to her dementia. The Care Provider did not consider reasons for these behaviours which were not as reported when she arrived. It should have treated this as a change in needs and consulted with the social worker and GP.
- Had the Care Provider had suitable care plans in place, we could take a view on whether it had taken appropriate action. Mrs Y’s care was unlikely to be adequate without adequate plans. This was fault.
- The Care Provider was not responsible for the nurse practitioner dealing with the calls; this was the surgery’s policy and not for the Care Provider or Council to deal with. A nurse practitioner should be sufficiently trained to alert the GP when necessary. However, to make that decision, they would have had to know what Mrs Y had been eating and drinking and about swollen legs or similar concerns. There is no adequate record of what the Care Provider told the nurse practitioner, so we do not know whether they were aware of the full circumstances. Mr X says the Care Provider repeatedly advised the GP had been consulted, or had visited, so they did not realise it had been a nurse practitioner. It is also concerning that the Care Provider’s record of the GP’s visit appears to have been incorrect. We cannot know whether the GP said liver or kidney, but the Care Provider should ensure it obtains any significant information from professionals, in writing.
- During the latter part of Mrs Y’s stay, the GP’s surgery was involved appropriately and was responsible for Mrs Y’s health care. However, Mrs Y had already deteriorated significantly. If the Care Provider had consulted with professionals at the start of her stay, this may have been prevented or delayed.
- The faults identified with the support provided to Mrs Y, put her at a significant and avoidable, increased risk of harm. It is possible they also affected her health and wellbeing negatively. Sadly, we are unable to put this right for Mrs Y now. They also caused Mr X and her family significant and avoidable stress, anxiety and uncertainty. They will never know what would have happened had Mrs Y’s care been adequate.
Complaints and safeguarding
- The Council failed to consider Mr X’s complaints in line with its own policy; it did not consider whether Mr X was acting in Mrs Y’s best interests. It applied a blanket policy that people without legal representatives cannot have complaints made on their behalf. Not being able to share Mrs Y’s personal information was not an adequate reason to not consider his complaint. The Council was at fault here.
- In fact, although Mr X was not a legally authorised representative, I saw nothing in the records that he should not have known about. He was Mrs Y’s son and the Care Provider should have been consulting with him, and other members of the family, to ensure it provided care in her best interests. They should have been involved in developing the care plans and other information. Mr X or other family members visited Mrs Y regularly in Gold Hill so saw much of what happened for themselves. Mr X’s only interest in having the information was to find evidence of his concerns about the care provided to Mrs Y. If there had been sensitive information which Mr X may not have known about, it could have been redacted. The Council should, at least, have considered this request fully rather than dismiss it out of hand.
- The concerns Mr X raised had a potential to be considered under safeguarding procedures, not just for Mrs Y, but for the other residents at Gold Hill. Neither the Care Provider or the Council even considered this. This was also fault and potentially left many people at unnecessary risk.
- Mr X sent the Council information about his complaint by email but it was quarantined. The Council’s policy, understandably, is not to open emails from an unknown source. When Mr X chased for a response it should have advised him how to encrypt the documents so it could access them. It was not enough to tell him to send information by post without attempting to find an encrypted solution for what was likely to be sensitive data. This was fault.
- The Care Provider also failed to respond adequately to Mr X’s complaints about Mrs Y’s care. It should also not have uploaded photos of Mrs Y without consent. It did not adequately deal with Mr X’s complaint about this either, as he found another photo after it had taken down the first. This was also fault.
- I have significant concerns about the Council’s approach to Mr X’s complaints which has serious implications for people who cannot speak for themselves. This caused Mr X significant and avoidable stress, anxiety, time and trouble.
- The issues I have referred to in this statement indicate potential breaches of regulations 9,12,14, and 16 so I will send a copy of the final decision to the CQC.
- To remedy the injustice identified above, I recommended the Council:
- Apologize to Mr X and his family for the faults identified above, setting out the actions it will take to prevent similar faults occurring in future.
- Pay Mr X £500 in recognition of the injustice it caused him.
- Take action to ensure all residents at Gold Hill/Blossom House have adequate care plans in place and records which inform and evidence the care provided.
- Ensure the quality of service at Gold Hill/Blossom House is monitored to ensure improvements to address the issues identified above are made and sustained.
- Re-train staff involved in complaints handling:
- to ensure they are clear how complaints can be made on behalf of people who cannot complain themselves.
- To ensure they are able to identify potential safeguarding issues in cases like this and know how to raise this.
- To ensure people can successfully send encrypted information to the Council.
- Complete actions a) b) and c) within one month of the final decision.
- Within one month of the final decision, send the Ombudsman:
- a copy of the letter with details of findings and actions taken in respect of action c).
- an action plan for actions c), d) and e) showing progress.
- Complete actions d) and e) within three months of the final decision and provide the completed action plan to the Ombudsman by then.
- I have completed my investigation and uphold Mr X’s complaints that the Council:
- did not provide adequate support to Mrs Y;
- did not deal with Mr X’s complaints about this; and
- did not consider the issues he raised under its safeguarding procedures.
Investigator's decision on behalf of the Ombudsman