Plymouth City Council (20 004 082)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 13 Jul 2021

The Ombudsman's final decision:

Summary: Mr X complained about poor quality care provided to his mother at the Drake Nursing Home. We have identified fault because it failed to have a diabetes management plan in place. The Council has agreed to apologise and make a modest, symbolic payment to Mr X. We have not found fault with other matters complained about.

The complaint

  1. Mr X complains about poor quality care provided to his late mother, Mrs P while resident at Drake Nursing Home. In particular, he complains about:
      1. Failure to ensure Mrs P received effective treatment for a chest infection.
      2. Failure to ensure Mrs P received appropriate nutrition and sufficient hydration.
      3. Failure to properly monitor Mrs P’s diabetes.
      4. The decision to try and evict Mrs P from the Drake Nursing Home shortly before her death.
  2. Mr X says the actions of the Council and the Drake Nursing Home contributed to his mother’s premature death and caused him significant distress.
  3. Mr X also complained about poor care provided to Mrs P in previous care homes and the Council’s refusal to allow Mrs P to return home.

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What I have investigated

  1. The restriction outlined in paragraph 14 applies to this complaint because Mr X complains about poor care provided to Mrs P at previous care homes, prior to February 2019. He also complains about the Council’s refusal to allow him to care for his mother at home
  2. The Ombudsman has discretion and can disapply this rule if there are good reasons. I have decided not to exercise discretion to investigate this part of the complaint because:
  • Events at the previous care homes happened too long ago for the Ombudsman to make a fair, evidence-based decision.
  • There was no reason why Mr X could not have complained to the Ombudsman sooner.
  • The Ombudsman cannot consider matters that have been the subject of court proceedings. The Court of Protection made an order in the best interest of Mrs P that she should remain in residential care and not return home. Therefore, I am unable to investigate this part of Mr X’s complaint.
  1. For these reasons, I have only investigated events from February 2019 onwards when Mrs P moved to the Drake Nursing Home.
  2. I have also not investigated the decision to evict Mrs P because this was the subject of court proceedings (paragraph 15 below).

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The Ombudsman’s role and powers

  1. 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)
  2. 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)
  3. Where a council arranges or commissions care services from a social care provider we can treat the actions of the care provider as if they were the actions of the council.
  4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
  5. 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)
  6. 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.
  7. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  8. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
  9. 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)

How I considered this complaint

  1. I spoke with the complainant, his representative and reviewed the information provided by them.
  2. I made enquiries of the Council and considered the information provided in response. Mr X and the Council had an opportunity to comment on my draft decision. I have considered their comments before making this final decision. 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

  1. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 sets out the standards registered care providers must achieve when providing care services. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
  2. Regulation 9 states care providers must provide care and treatment which is appropriate and meets people’s needs.
  3. Regulation 12 aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Care providers must assess the risks to people's health and safety during any care or treatment and act to mitigate risks.
  4. Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.
  5. Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.

Diabetes management

  1. Diabetes UK issued guidelines: ‘Good clinical practice guidelines for care home residents with diabetes (2010)’. This says each resident with diabetes should have an individualised diabetes care plan. The frequency of blood glucose monitoring should be established on an individual basis, and is largely driven by the treatment the resident receives to manage their diabetes.
  2. The frequency of monitoring, targets and action to be taken in the event of measurements outside these targets should be documented in each resident’s individual care plan. The risk of hypoglycaemia (low blood sugar) for any resident with diabetes should be highlighted in the resident’s diabetes care plan.

Background information

  1. Until 2018, Mrs P lived at home cared for by the Mr X. During a week of respite care, the Council became concerned about Mrs P’s well-being and decided it would be unsafe for her to return home. Mr X objected to this and the Council applied for an order from the Court of Protection seeking a declaration about future care arrangements.
  2. While the Court determined this matter, it was ordered that Mrs P stayed in residential care. Mrs P was allocated a social worker and an advocate.

Significant events

  1. I have set out below a summary of the key events. But it is not meant to show everything that happened.
  2. In February 2019, Mrs P was discharged from hospital to the Drake Nursing Home (the Home). This was arranged by the Council. At that time, Mrs P was in her late eighties, had dementia and other health conditions including diabetes.
  3. The Home asked Mr X to sign a “behaviour agreement” because previous homes had encountered problems with him. This agreement aimed to impose restrictions on the times Mr X could visit his mother, particularly mealtimes. Mr X strongly denies there was a need for such an agreement. He believes he was targeted because he complained about poor practices at other settings.
  4. Shortly after Mrs P arrived at the Home, several mental capacity assessments were carried out. Mrs P was found to be lacking capacity in most areas of daily living.
  5. During her time at the Home, Mrs X had several falls. In May 2019, the Council agreed to fund 1:1 care during the night. As she continued to have falls, the Home requested this be increased to cover 24 hours. Mrs P died before a decision was made about this.
  6. Mr X was told that it was not possible to eliminate the risk of falls entirely due to Mrs P’s increasing frailty.
  7. Mr X became increasingly frustrated by his mother’s deteriorating health that he put down to neglectful, poor care. Mr X says he wanted to look after her at home and should have been allowed to do so. He tried to assist Mrs P, particularly with her diet. Mr X was concerned Mrs P was not being given enough to eat. He says the food had poor nutritional value and staff failed to offer enough support and encouragement to Mrs P at mealtimes. Mr X tried to support his mother to eat more, but he says the Home used the behaviour contract to prevent this as much as possible.
  8. The relationship between the Home and Mr X deteriorated. The Home felt his continued presence affected their ability to provide proper care to Mrs P and the other residents. The Home started eviction proceedings to end Mrs P’s placement. The Court of Protection was notified, and it ordered that it was in Mrs P’s best interest to stay at the Home.
  9. In September 2019, Mrs P became very unwell with a chest infection. She had three courses of antibiotics that did not work. She spent more time in bed and was unable to eat or drink very much.
  10. Sadly, Mrs X passed away. Mr X says he visited her hours before her death and in his opinion, Mrs P was in a diabetic/sedative coma when he left. He regrets that he did not call an ambulance. Mrs P’s causes of death were recorded as dementia and a chest infection.
  11. Mr X says the Council and the Home caused his mother’s premature and uncomfortable death. He complained to both the Home and the Council that:
      1. The Home did not provide and arrange adequate care and treatment for Mrs P’s chest infection towards the end of her life. Mr X said Mrs P should have been in hospital where she would have received the correct care.
      2. The Home did not provide Mrs P with adequate fluid and nutrition and this contributed to her death
      3. The Home did not manage Mrs P’s diabetes properly. Mr X says Mrs P was in a diabetic coma prior to her death and this was entirely preventable.

The Home’s response

  1. The Home said in the days leading up to Mrs P’s death many professionals were involved in Mrs P’s care including her GP, advocate, a continence nurse and social worker. Mrs P was prescribed three courses of antibiotics demonstrating active GP involvement and a desire to treat the chest infection. It was the GP’s decision, not the Home’s to arrange a hospital admission. The Home felt it had provided a good level of support and so did not uphold the complaint.
  2. The Home said its records confirm staff were recording Mrs P’s food and fluid intake and spending time with her at mealtimes,

The Council’s response

  1. The Council’s investigation confirmed the Home’s own conclusions but made additional findings regarding the complaint about diabetes care because this had not been raised initially with the Home.
  2. The Council reviewed the case notes and concluded the management of her diabetes had been GP led and so did not uphold the complaint.
  3. However, it did find identify some shortcomings in recording practices and made recommendations to the Home.
  4. In response, the Home carried out a further review in January 2020 and identified a number areas of service improvement. I cannot see this was sent to Mr X. These included improvements in recording practices in the following areas:
  • Diabetes management.
  • Best interest decisions.
  • Repositioning.
  • The behaviour contract.
  • Management of refusal of care.
  • Welfare of residents.
  • Covert medication.
  • Treatment escalation plan.
  • Clinical discussions.

Complaint to the Ombudsman

  1. Mr X remained dissatisfied and wanted the Home and the Council to be held accountable for his mother’s death.

Analysis

  1. I have reviewed the Home’s records for Mrs P’s care from February 2019 to September 2019. I have also had sight of Mrs P’s medical notes kept by the GP. In response to a draft version of this decision I have also been provided with Mrs P’s hospital discharge records.

Failure to ensure Mrs P received effective treatment for a chest infection

  1. I am satisfied from the evidence I have seen that the Home was proactive in seeking appropriate medical attention for Mrs P’s chest infections. She received three courses of antibiotics but unfortunately none were successful. This was not the fault of the Home.
  2. Mr X says the Home should have called an ambulance as her condition deteriorated. The GP last examined Mrs P six days before her death. The Home did not seek further medical attention. The notes record her as becoming increasingly frail and she spent most of her time asleep.
  3. My assessment is the home concentrated on keeping her comfortable at this time. Mr X says he was later advised by the Home that Mrs P was in “End of Life Cycle”. I cannot say whether this was a general observation about her overall condition or whether this was an official assessment.
  4. I have not seen any indication that Mrs P was being treated on an end-of-life pathway by the Home although it is clear that Mrs P was very frail at the time of these events. The hospital discharge notes from June 2019 stated that Mrs P “was heading towards palliation” and this had been discussed with Mr X.
  5. I do not criticise the Home for not calling an ambulance. I am satisfied the care provided to Mrs P in her final days was appropriate to her state of health and she was comfortable.
  6. Based on all the available evidence, I have concluded the Home took appropriate steps to manage Mrs P’s chest infection and care in her final days generally.

Failure to ensure Mrs P received appropriate nutrition and sufficient hydration

  1. Mrs P’s care plan stated staff should always monitor Mrs P with meals and fluids.
  2. The records show the Home completed food and fluid charts for Mrs P throughout her time there.
  3. The Home said staff actively fed her and her intake was measured. As her illness progressed staff were spending longer with her and recorded how many mouthfuls were consumed. This is supported by the case records I have seen.
  4. The sad reality was that towards the end of her life Mrs P lost her appetite and refused food that was offered to her on many occasions. This is supported by the case records.
  5. Having carefully considered the evidence, I have concluded that there was no fault with the Home’s monitoring or management of Mrs D’s fluid and food intakes while at the Home.

Failure to properly monitor and manage Mrs P’s diabetes

  1. Mrs P’s care plan stated she was on a diabetic diet and her blood sugars were to be monitored weekly as she was prone to hypo/hyperglycaemia,
  2. In April 2019, the Home raised the issue of Mrs P’s non-compliance with both testing and insulin administration with her GP. The family was present at a meeting convened to agree a best interest decision that a single daily test and injection was acceptable.
  3. The hospital discharge notes from May 2019 stated that insulin should be stopped. Despite this, it was not until September 2019 that the Home’s care plan stated insulin had been discontinued due to non-compliance.
  4. The Home’s subsequent internal review has acknowledged the diabetes management plan was “quite unclear”. I agree. Mrs P should have had a diabetes care plan. This would have confirmed what had been medically recommended and provided Mr X with clarity about his mother’s care. The lack of plan should have been identified by the Council when it first reviewed the complaint.
  5. The Home has confirmed it has now introduced diabetes care plans and ongoing reviews. While I welcome this, both should have been in place when Mrs P was in residence. Failure to do at the time Mrs P was in its care was fault.
  6. This leads on to Mr X’s complaint about Mrs P often being given inappropriate food for someone with diabetes. He refers to one incident where Mrs P was given white bread sandwiches. When he raised this with staff, the Home recorded a constructive conversation took place with Mr X about this. Mr X has a different recollection and says it led to an argument about the issue. In the absence of any independent witness to this, it is not possible to me to determine what took place here.
  7. Regardless of what actually happened on this occasion, details of Mrs P’s specialist diabetic diet should have been included within the management plan referred to above. If it was the case (and I believe it was) that the focus was on getting Mrs P to eat something rather than nothing, this should have been recorded on the management plan and communicated to Mr X.
  8. I am satisfied Mr X has suffered an injustice in the form of distress as a result of this lack of clarity over Mrs P’s diabetes management. However, there is no evidence to suggest this was to the detriment of Mrs P’s health and I am satisfied this was a decision made by medical professionals involved in her care.
  9. Mr X says she was in a diabetic coma prior to her death, and this was preventable had her diabetes been properly monitored as it was when she had been in hospital. The Home was no longer monitoring Mrs P’s diabetes under the GP’s instruction. There is no evidence to support Mr X’s assertion and so I do not find fault.

Conclusion

  1. My overall assessment is the Home provided an acceptable of care to Mrs P in often difficult circumstances. I have found no evidence to support Mr X’s strongly held belief that Mrs P died as result of poor care. She was clearly a very frail lady who, despite the best efforts of those supporting her, was unable to fight off a severe chest infection.
  2. The Home has already identified several learning points arising from this case, mainly about recording practices. While I found, overall, the Home’s record keeping complied with Regulation 17, this subsequent, self-critical review was a constructive and positive approach to take. The Home has already implemented changes in this area and so I do not intend making any additional service improvement recommendations.

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Agreed action

  1. Within four weeks from the date of my final decision, the Council has agreed to take the following action:
      1. Apologise in writing to Mr X for the fault identified in this decision statement.
      2. Pay Mr X £250. This is a symbolic payment to acknowledge the distress caused as a result of the Home not having a diabetes management plan in place for Mrs P.

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Final decision

  1. I have found there was fault because Mrs P was not provided with a diabetes management plan and the Council has agreed a suitable remedy.

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Parts of the complaint that I did not investigate

  1. I have not investigated earlier events and part of the complaint relating to court proceedings for the reasons set out in paragraphs 4-7.

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Investigator's decision on behalf of the Ombudsman

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