Summary: The commissioned care provider inappropriately implemented its emergency hospital admission procedure when Mrs X was agitated after a fall. It failed to offer her prescribed pain relief. It was poor practice on the part of the care provider to tell Mrs X’s family she would be “sectioned” and caused considerable distress. The Council on behalf of the care provider will now apologise to Mrs X’s family, offer a sum to recognise their distress, and provide details of the remedial actions taken by the care provider.

The complaint

1. Mr X and his sister Ms BX (as I shall call them) complain about the care and treatment of their late mother Mrs X in a care home placement commissioned by the Council. In particular they complain that the care provider was so focussed on Mrs X’s mental ill-health that it failed to recognise and act on her physical pain. They say as a result she suffered from the pain of the fracture longer than necessary, and they suffered the anxiety of being told incorrectly she was about to be detained under the Mental Health Act.

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The Ombudsman’s role and powers

2. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
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)

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How I considered this complaint

5. I considered the information provided by Mr X and by the Council and care provider. I spoke to Mr X. All parties had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).

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What I found

Relevant law and guidance

7. 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.
8. Regulation 12 says care and treatment must be provided in a safe way for service users. Providers must do all that is reasonably practical to mitigate risks. Providers must take appropriate action if there is a medical or clinical emergency.
9. 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. 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.
10. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes. A person can be detained in hospital under section 2 of the Act for an assessment to be carried out and for treatment after the assessment. A person can be detained under section 3 of the Act for treatment and can be kept in hospital for up to six months. Informally these processes for detention are known as “sectioning”.
11. The care provider has a policy on the emergency admission of patients to hospital. It says, “The condition of a resident may be such that the need for emergency admission to hospital will be diagnosed by the GP. Alternatively, the condition of the resident may have deteriorated suddenly in the absence of the GP such as to justify an emergency admission to hospital.”

What happened

12. Mrs X was an elderly lady who was admitted to a nursing care placement at Westgate care home in March 2018 following a fractured hip. The Council funded her care. She had depression and anxiety as well as Alzheimer’s disease and vascular dementia. She had a history of falls and her risk assessment shows she was at continued high risk of falls. She had been admitted to the care home from hospital after suffering a fractured hip. Mrs X had pressure sores on her sacral area, the sole of her foot and her ankle which were dressed with bandages by the care home staff, and she was to be repositioned regularly to relieve the pressure. She was prescribed paracetamol for pain relief. Mr X and Ms BX held power of attorney for Mrs X’s health and welfare.
13. The GP referred Mrs X to the mental health team in March 2019 after observing her hitting herself in agitation. He also increased her dosage of Trazadone (an anti-depressant medicine). The mental health team attended to see Mrs X but decided to postpone their assessment for a week so that Mr X could be present, and the effects of the increased dosage of trazadone could be seen.

The first fall

14. On 9 April Mrs X had an unwitnessed fall from her wheelchair in the dayroom where she was sitting with other residents. No members of staff were present. Another resident (who also had dementia) said she had slid from her chair. The nurse’s report says she saw Mrs X on the floor at 16.25 and pressed the emergency buzzer. The visiting GP (who was in the home at the time) and the RGN responded to the emergency call. The nurse’s notes say the GP checked Mrs X over. As she was deemed to be unharmed she was hoisted back into her wheelchair and then put to bed where she “refused obs”.
15. The nurse states when they returned to Mrs X’s room, Mrs X was trying to strangle herself with the bandages from her legs. He went to find fresh dressings and when he returned Mrs X was “pushing her fingers” into the open wounds on her ankle. The nurse’s report states Mrs X was also banging her head against the bed rails and smacking herself on the face. The GP said Mrs X would require supervision and one-to one care.
16. The nurse’s report states he told the Unit Manager he would call the mental health crisis team as Mrs X “might need to be sectioned”. The notes indicate when the nurse called the crisis team they were unable to respond as Mrs X had not been referred by the mental health team, but advised him to call 999 so Mrs X could be assessed by a ward team.
17. Mr X says he attended the home when he was told about the fall. He says after he left he received a phone call saying Mrs X would be “sectioned”. He says the nurse he spoke to said the home’s protocol meant Mrs X should be “sectioned” that night.
18. The care home staff called an ambulance which attended at 3am. The paramedics would not take Mrs X to hospital. The nursing notes indicate they said Mrs X should stay in the home and be seen by the crisis team next day. The paramedics report states, “Patient denies wanting to self-harm or kill herself….No concerns regarding acute mental health. Spoken to Crisis team due to confusion regarding whether this was an admission or not. Crisis Team states Rapid Response Team to visit patient today ….and no admission has ever been planned for this patient.”
19. The local NHS Trust has provided the CPN (Community Psychiatric Nurse) notes for 9 April: “I am on annual leave today but had left work phone on and it rang several times, on answering it was Westgate Nursing Home Ground floor Unit Manager. He informed that (Mrs X) had unwitnessed fall off her wheelchair at around 5 pm. She was assisted off the floor and then assisted to her bed. when staff went to check her later they found that she had taken off her leg dressings and wrapped them around her neck.  When asked by staff, what she had done, she is reported to have said she wanted to die. Unit Manager informed that they had initially attempted to call Crisis Team, but now have called 111 and were awaiting for a call back from a Clinician. The Unit Manager further elaborated that they did not want (Mrs X) to remain in Westgate.”
20. The CPN visited Mrs X the following day. She assessed that Mrs X was at risk of accidental or deliberate self-harm, at risk of increasing depression and further deterioration in her mental and physical state. When the CPN looked at Mrs X’s MAR chart she noted that Mrs X had grade 2/3 pressure sores but was not being offered the prescribed pain relief. The care home staff told the CPN Mrs X did not like taking medication. The CPN advised she would contact the GP to arrange a pain patch instead which Mrs X might tolerate better.
21. The care home records show Mrs X started using the pain patch on 12 April. She was described as “more settled” although there were episodes when she was crying and getting very agitated.

The second fall

22. On 15 April Mrs X was found on the dayroom floor after another fall. The care notes show she was assessed by staff and there were “no apparent injuries”. The use of the pain patch was stopped as the GP felt it was not helping.
23. On 19 April a nurse changing Mrs X’s dressings noticed her ankle was swollen and bruised and noted “Could be a fracture from the falls she had in the last two weeks”. The care home staff called the GP who arranged for an ambulance to take Mrs X to hospital where it was confirmed she had a fractured lower leg. Mr X says he attended the hospital when the doctor saw Mrs X and says, “Doctor confirmed her leg was fractured, but it wasn’t a recent fracture.”
24. Mrs X returned to the care home on 20 April. On 21 April nurses noticed the plaster slab was covering an open sore and she went back to hospital for the slab to be replaced.

The safeguarding investigation

25. On 27 April the Council commenced a safeguarding investigation of alleged neglect and acts of omission in respect of the second fall. As Mrs X lacked capacity to consent to the investigation a decision was made in her best interests to conduct the investigation.
26. The safeguarding investigator spoke to Mr X on 7 May. He said he was concerned that the fall was unwitnessed by staff and that there seemed to be a lack of supervision for residents sitting in the lounge. He said following the first fall the CPN had identified Mrs X was complaining of pain in her leg but the home had not taken further action. He said he was very angry that the care home had wanted to ‘section’ Mrs X and had called an ambulance at 3am to take her to hospital.
27. Mr X expressed concerns that the repositioning charts had been poorly completed or completed retrospectively.
28. The safeguarding investigator spoke to the CPN. She said she had been on leave the day of the first fall but had received messages from the care home advising that they were admitting (Mrs X) to a mental health unit “due to her acts of suicide”: the CPN said she was surprised by this as she had seen Mrs X the previous day and she had been settled.
29. The safeguarding investigation identified three causes of risk to Mrs X:

Risk of further falls: both falls were said to have taken place by Mrs X slipping from her wheelchair, which had now been replaced in the lounge by a “tilt in space" chair;

Risk of hitting her legs against the side of her bed: padded covers were now in place and the unit manager reported this behaviour had stopped;

Risk of further deterioration of the pressure sores on her sacral area and ankle: the care home had now made a referral to the Tissue Viability nurse.

30. The safeguarding case conference discussed the response to the first fall. The minutes say, “Westgate reiterated that following the fall the correct protocol was followed and all appeared fine. GP was involved immediately. Meeting heard a concern about how sending to hospital can cause the resident additional distress so this route is not taken unless clinically justified.”
31. The safeguarding conference also discussed the terminology used by care home staff. The safeguarding investigator “recommended that Westgate consider carefully how they communicate information to family members to avoid raising family anxiety or adding to family stress. The use of the word "Sectioning" was not helpful at the time and misleading.”
32. The Council concluded the safeguarding enquiry and found on the balance of probability there was no evidence of neglect of Mrs X. The closure report recorded “the enquiry has clearly heard how Westgate took prompt actions at the time of the fall, how the GP made clinical decision not to send to hospital, of the monitoring in place and the involvement of other specialist services in the wider care of (Mrs X).” The Council said the safeguarding investigator would examine the repositioning charts closely in the light of Mr X’s concerns about their completion.
33. The Council’s agreed actions from the safeguarding investigation were the examination of the repositioning charts, provision of training on dementia and communication, and the support of the local hospice for training on pain relief.
34. Sadly Mrs X died during the safeguarding investigation.

The complaint

35. In May Mr X and Ms BX complained to the care provider and to the Council about the way in which Mrs X had been treated after the falls. They said when Mr X visited his mother after the first fall he found her in extreme distress, self-harming and saying she wanted the pain to stop. The nurse on duty told him Mrs X would be ‘sectioned’. Mr X said over the next two weeks his mother’s condition deteriorated. He attended hospital with her on 19 April when she was sent for an x-ray. He says the doctor then confirmed Mrs X had fractured her leg but it was an old fracture. Mr X said his mother had been left with a fractured leg for nearly three weeks without pain relief.
36. Following the safeguarding investigation Mr X complained again to the Council about the way it had ben conducted and the findings. He said the case conference had not been conducted in a professional way – the CPN who had attended his mother was not present but her manager (who did not know Mrs X) was. He said the care home manager kept leaving the meeting. He said the concerns about the threats to have Mrs X sectioned were dismissed with scant apology, and did not consider the distress caused to the family. He also complained about a lack of staffing at the home.
37. A team manager responded to the complaint. She said in terms of the information available it had not made a difference that the CPN’s manager attended, and not the CPN. She said the home’s owner had not been invited but attended anyway, although he left the meeting to attend to something else. She apologised for this and said with hindsight this had been disruptive and she should have paused the meeting. She said Mr X’s concerns about staffing had been recorded.
38. The team manager also said she had asked an officer to consider the home’s records as Mr X had concerns about the way in which the repositioning charts had been completed. She said the review showed there was evidence of both good and poor practice but this would not have made a difference to the outcome of the safeguarding investigation. She said the home was making improvements to its recording practices. She apologised that he felt the apology at the meeting for the way the home had communicated its intention that Mrs X should be ‘sectioned’ was half-hearted. She said a manager from another team had now audited the safeguarding investigation and was satisfied it was completed properly.
39. Mr X remained unhappy and the Council undertook a Senior Management Review of his complaint. The Head of Service wrote to Mr X in July 2020 with the outcome of his review. He said in terms of the safeguarding allegation, all present at the case conference had agreed it was not substantiated. He said this was not only evidenced by the fact Mrs X’s care had been managed in a “safe and effective way”, but also because appropriate measures had been taken to intervene as her needs changed: he said “This was evident in the escalation to the GP and Community Psychiatric Nurse (CPN) which not only led to her conveyance to hospital but uncovering an ‘old’ fracture for which she received treatment”.
40. The Head of Service acknowledged the disturbance caused by the actions of the home’s owner in leaving the case conference during its progress. He said the use of the term ‘sectioning’ by the Unit Manager was a genuine mistake for which he apologised.
41. The Head of Service concluded his letter by saying better systems had been put in place at the care home to improve record keeping. He said as part of the contract monitoring of the home, more focus would be placed on ensuring that designated staff had “sufficient knowledge, skills and training to meet the demands of managing the care of vulnerable people with complex care needs”.
42. Mr X and Ms BX complained to the Ombudsman. They complained that Mrs X had suffered unwitnessed falls and not been sent to hospital until ten days later. They complained that the care home had tried to have their mother admitted compulsorily to a psychiatric ward when she was agitated the night after the fall. They complained about the safeguarding investigation which they considered was not impartial – they said the safeguarding investigator hugged the care home manager when she visited.
43. The Council says it recognises Mrs X’s rapid deterioration could have been handled more sensitively by the care home staff, who have apologised for their shortcomings in this respect. It says it remains unclear how Mrs X fractured her leg. It says Mrs X had been displaying agitated behaviour before the first fall bit as the GP who examined her found no signs of injury, the care home staff focussed on her behaviour.
44. In terms of the lack of impartiality of Council officers, the Council says the hugging Mr X witnessed between the care home manager and the locality manager was a sign of their good working relationship but not of a personal friendship.
45. In response to Mr X’s concerns that Mrs X had unwitnessed falls in the dayroom, the Council says Mrs X was observed regularly but not constantly at this point (as she was not deemed to require 1 to 1 observation).
46. The local NHS Trust responded to our enquiries about the way in which the care home staff asked for Mrs X to be admitted under a section of the Mental Health Act. It says, “it is our understanding that (Mrs X) was physically agitated due to pain... Our CRISIS team were monitoring the effects of the pain medication on her presentation. We would not have called a mental health act assessment for this and there is no documentation that this was ever spoken about.”
47. Mr X and Ms BX say there was a failure on the part of the care provider to follow the advice of the Tissue Viability Nurse sooner. They say Mrs X was frequently left for long periods of time in her wheelchair.

Analysis

48. The care provider was able to respond promptly to Mrs X’s first fall as the visiting GP was present and examined her. She found no signs of injury at that point and Mrs X was returned to bed. It was not fault on the part of the care provider not to take further action at that point as Mrs X had been clinically assessed.
49. However, when Mrs X’s agitation increased the response of the care home was to consider it due entirely to her depression and dementia. Although the care provider expressed to the safeguarding meeting “concern about how sending to hospital can cause the resident additional distress so this route is not taken unless clinically justified”, there was apparently no such consideration given to how much distress the possibility of compulsory hospital admission might cause to a vulnerable elderly lady in the middle of the night.
50. It is difficult to see how the home followed its policy for emergency hospital admission which says, “the condition of the resident may have deteriorated suddenly in the absence of the GP such as to justify an emergency admission to hospital”. Mrs X was already being seen by the mental health services. Her distress had already been witnessed by the GP who had not considered hospital admission. The nurse made it very clear to Mr X that Mrs X would be ‘sectioned’ although he had no justification for saying so (the local NHS Trust has confirmed it would not have undertaken a Mental Health Act assessment for Mrs X’s presentation at that time). The unit manager also made it very clear to the CPN that “they did not want (Mrs X) to remain in Westgate”.
51. As a result of the actions of the care provider Mrs X was woken in the middle of the night to find paramedics summoned to take her to hospital. Mr X suffered the distress of being told by the home that Mrs X had to be ‘sectioned’ that night according to the home’s policy. Although the care provider expressed its apologies to Mr X in the case conference, I am not convinced the Council sufficiently explored why the home staff acted as they did or recognised the extent of the distress caused. It is possible that other service users could have been affected by the same attitude on the part of the care home staff. In my view the Council and the care provider should have gone further than an apology here.
52. Mr X also has concerns the safeguarding investigation was not impartial. It was not helpful in this respect for the locality manager and the care home manager to act as though they had a personal friendship, however untrue that might have been: it gave the impression to Mr X that the investigation lacked impartiality.
53. A further concern is the failure of the care home to give Mrs X her prescribed pain relief medication. If Mrs X would not accept it there was an onus on the care home staff to explore other ways of providing it in consultation with the GP. I have not seen evidence this was done. As a result, Mrs X was left without any pain relief at a time when she not only had pressure sores but also, as it turned out, a fractured leg.
54. The safeguarding investigation did identify causes of risk to Mrs X and put in place measures to prevent them.
55. The Senior Management Review did not in my view address Mr X’s concerns fully. It was not appropriate to say Mrs X’s care had been managed in a ‘safe and effective’ way when there was evidence she had been left without pain relief and there was little evidence of action taken to change that until the CPN saw the medication charts. It did not give sufficient weight not only to the distress caused by the threat that Mrs X would be ‘sectioned’, but more fundamentally to the attitudes of staff who attempted that cause of action.

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Agreed action

56. Mrs X has now died and any injustice she suffered as a result of the failure to ensure pain relief and the upset caused by the intended hospital admission cannot now be remedied.
57. Within one month of my final decision the Council will apologise to Mr X and Mrs BX for the distress caused to them by the knowledge of the lost opportunities to relieve Mrs X’s pain;
58. Within one month of my final decision the Council will also apologise on behalf of the commissioned care provider for the distress caused in particular to Mr X by the explicit attempts on the part of the care provider to have Mrs X admitted to hospital as a result of her agitation;
59. Within one month of my final decision the Council will offer the sum of £1000 to Mr X and Ms BX (jointly) in recognition of the distress caused by the actions of the commissioned care provider; in addition it should offer the sum of £250 to each of them in recognition of the time and trouble caused in making the complaint;
60. Within one month of my final decision the Council will let me have details of what training has been undertaken with the care provider in respect of the management of “the care of vulnerable people with complex care needs”, which should address not only the proper understanding of the Mental Health Act but also the need to act on refusals of pain relief.
61. Finally, within one month of my final decision, the Council will provide details to me of how its contract monitoring team has monitored the improved record- keeping system in place at the care home.

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Final decision

62. I have completed this investigation and find there was fault which caused injustice to the late Mrs X, and to Mr X and Ms BX.

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Investigator's decision on behalf of the Ombudsman