Summary: Ms V complains on behalf of her deceased mother. She complains that neglectful care provision and lack of safeguarding led to the Council not acting in her mother’s best interests. She had lost a lot of weight and nobody took any action. The Ombudsman’s decision is there was some fault in the actions of a care provider providing care on behalf of the Council. It did not do all it could have done to respond to concerns about Ms V’s mother’s eating. The Council has agreed to our recommendations.

The complaint

1. The complainant, whom I shall refer to as Ms V, complains on behalf of her deceased mother (Ms W). Ms V complains:
• the Council failed to suitably safeguard Ms W, despite repeated requests from the family about significant weight loss;
• the care provision was neglectful;
• the Council did not act in Ms W’s best interests;
• the Council failed to ensure that care needs were reassessed.
2. As a remedy, Ms V says she wants the Council to take full responsibility and explain how it will ensure this does not happen again.

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What I have investigated

3. I have investigated Ms W’s care from February 2020. The end of this statement explains why I have not investigated earlier events.

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The Ombudsman’s role and powers

4. 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)
5. 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)
6. 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)

7. If we are satisfied with an organisation’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

8. As part of the investigation, I have:
• considered the complaint and the documents provided by Ms V;
• made enquiries of the Council and considered its response;
• considered the Council’s safeguarding investigation report;
• spoken to Ms V;
• sent my draft decision to Ms V the Council and the care provider and considered their responses.

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What I found

Legal and administrative background

Assessment

9. Sections 9 and 10 of the Care Act 2014 require councils to conduct an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs.

Mental Capacity Act

10. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make 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.

Mental capacity assessment

11. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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.

12. It is important to carry out an assessment when a person’s capacity is in doubt. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
13. Another key principle of the Mental Capacity Act 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.
14. If an adult has the capacity to make decisions in an area of their life and declines assistance, this can limit the intervention that organisations can make. The focus should therefore be on harm reduction.

Safeguarding - from the Care and Support Statutory Guidance

15. The statutory guidance to the 2014 Care Act says a council must make safeguarding enquiries if it has reasons to think a person with care and support needs, who cannot protect themselves, may be at risk of abuse or neglect. The guidance says an enquiry could range from a telephone call to a multi-agency investigation. (section 42, Care Act 2014)
16. The guidance says self-neglect may not prompt a safeguarding enquiry. A decision on whether a council needs to provide a safeguarding response will depend on the adult’s ability to protect themselves. A person’s mental capacity will be a key factor in a council reaching its decision.

What happened

17. Ms W was a woman in her late 80s. In April 2019 she moved to sheltered accommodation. The Council did not at first provide Ms W with any care in her new home.
18. In December 2019 Ms W was admitted to hospital, due to pneumonia. In January 2020 she discharged herself. In line with the rules about hospital discharge, for the first few weeks after, she received NHS arranged ‘reablement’ care. The reablement support worker noted Ms W:
• was very frail and thin; and
• appeared to have the mental capacity to make her own decisions.

Hales Care’s care and support

19. In February 2020, the Council contracted with Hales Care to visit Ms W to support her with personal care, dressing and providing meals. Hales Care’s view was Ms W appeared to have the mental capacity to make her own decisions.
20. The Council telephoned Ms W in May. She said she was happy with the carers. In June 2020 the Council carried out its Care Act assessment of Ms W’s care needs. Ms W’s view was the support was working well. The Council continued with the provision in place and set a review for June 2021.
21. In January 2021 Hales Care carried out a care review. It found there was not enough details in its care records of what food carers had prepared for Ms W. But the care provider says Ms W wanted it included in her care plan that she might have eaten before carers attended. The care provider amended Ms W’s care plan to include the following note:

“I would like you to document at each visit if I decline food check what I have eaten and document this. Please report any issues to the office.”

The care provider says it sent a memo to Ms W’s carers. It says it had no concerns about Ms W’s mental capacity then.

Ms W admission to hospital and discharge with a new care provider

22. In March Ms W was admitted to hospital because of atrial fibrillation and sepsis. The care provider’s note before the admission, noted Ms W was “very confused”.
23. At the time of admission, the care co-ordinator at Ms W’s GP surgery spoke to the hospital. Its view was Ms W had mental capacity.
24. At the time of discharge, at the end of March, the hospital’s discharge records show its view was Ms W did not have capacity to make her own decision about discharge.
25. At the beginning of April the hospital discharged Ms W back to her sheltered home with a new care provider, with an increased package of care. The new care provider raised concerns with the Council that Ms W was struggling to feed herself. It asked the Council to amend Ms W’s care plan.
26. The Council allocated a new social worker. The social worker asked a GP to visit Ms W to check if there were any health concerns around Ms W’s appetite.
27. The Council’s records show:
• the care provider’s view was Ms W did then have mental capacity to make decisions;
• around this time, Ms V told the social worker that, until about a month before, Ms W had been able to have a conversation with her; so
• because of the differing reports, since March, about Ms W’s mental capacity, the social worker’s conclusion was that Ms W’s mental capacity was fluctuating.
28. On 14 April:
• the GP reported Ms W had difficulty swallowing and was underweight. The GP’s view was residential care would be better for Ms W. But she advised she wanted to stay in her flat. The GP prescribed thickeners for fluids and referred Ms W to a dietitian;
• the social worker also spoke to the care provider. It expressed concerns Ms W was showing signs of self-neglect, as she was not eating. The social worker called para-medics who took Ms W to hospital.

Ms W moves to a residential home

29. While in hospital, its discharge co-ordinator’s view was Ms W did not have the capacity to make her own decision about where she would go after discharge. Its view was she needed more care than her old accommodation provided.
30. In early May, Ms W was discharged, in her best interests, to a care home. The discharge assessment noted her old accommodation could no longer meet her needs. The notes record Ms W was still confused at times.
31. The Council has sent me records of the care from Ms W’s new accommodation. These show her gaining a small amount of weight in her first month at the care home.
32. The care home made a referral to a dietitian. It also liaised with the district nurses, GP and speech and language therapists whether there was any other support it could provide.
33. In June a social worker met Ms W and carried out a mental capacity assessment. It concluded Ms W did not have the capacity to grasp complex issues, outside of basic day to day small choices.
34. At the beginning of July Ms W passed away. The coroner recorded that Ms W’s cause of death was Bronchopneumonia, old age and low body mass index.

The safeguarding investigation

35. After Ms W passed away, Ms V raised concerns about Ms W’s weight loss. The Council’s safeguarding team opened an investigation to seek to establish how Ms W lost so much weight without action being taken earlier to address that risk.
36. As part of its investigation, the safeguarding team asked Hales Care for information. It produced a report which stated:
• it saw no evidence to suggest Ms W lacked capacity to make decisions;
• it had no information on file of Ms W’s weight at any time it provided care;
• Ms W was independent with meals and could prepare food independently. So it was difficult to know what she had eaten during a day;
• its view was Ms W was making her own choices about food and drink. She was capable and entitled to do that;
• after its January 2021 change to Ms W’s care plan, its carers only once noted a concern in its records;
• the carer who did note the concern, did not report this to the care provider’s office.
37. The Council’s safeguarding team’s investigation decision outcome was Ms W’s case did not meet the threshold for a review. Evidence suggested Ms W maintained mental capacity in the time she lost significant weight. But the Council would remind providers of the need to closely monitor nutritional intake. And to revisit this when somebody refuses to eat, even if a service user had mental capacity.

Ms V’s complaint to the Ombudsman

38. After the outcome of the Council’s safeguarding investigation, Ms V complained to the Ombudsman. I spoke to Ms V. She advised that she did not live in the UK, so had not seen Ms W for some years, but they spoke on the telephone. In 2019 Ms V managed to speak to Ms W via a video call. She was shocked then by how much weight Ms W had lost.
39. The Ombudsman made enquiries to the Council. In response, the Council said:
• “while Hales would have been expected to share concerns during weekly visits with the District Nurse and Ms [W]’s GP should this have been an ongoing or regular concern, the Council … would also expect providers to alert [it];
• it was the professional view of senior staff in its safeguarding team that, because there was ongoing discussion about the issues of weight loss between various agencies, the threshold for indicate abuse (as defined in the Care Act (2014)) was not met.
40. The Council sent me a Hales Care report commissioned for the safeguarding investigation. This included its care notes from January to March 2021. Looking at the care notes for February 2021, there are:
• many records of carers preparing food for Ms W;
• around a dozen records of Ms W refusing food, or saying she had already eaten (this is a significant reduction from the January records);
• three notes of carers witnessing Ms W eating the food they had prepared.

Was there fault by the Council and the care provider acting on its behalf?

41. When considering complaints 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.

Ms W’s mental capacity

42. I have looked in detail at the Council’s records about Ms W’s mental capacity. Before March 2021, all organisations that considered the issue took the view Ms W had the mental capacity to make her own decisions. The case records I have seen have only one entry before March 2021 of Ms W being confused. And Ms V told a social worker that, around April 2021, she had noticed a deterioration in Ms W’s ability to have a conversation. So, more likely than not, before March 2021 Ms W maintained the mental capacity to make her own decisions about issues like eating and drinking.

Hales Care’s actions

43. An assessment of the evidence of Ms W’s mental capacity is important because the Mental Capacity Act is clear that people who have the mental capacity to do so, have the right to make their own decisions. That includes decisions that are unwise and carry some risk.
44. That is relevant here. Ms W had the right to make her own decisions about what she ate and drank before March 2021. That limits what any organisation could do to make Ms W do something she did not want to do. Ms W’s comments to the care provider in January 2021 is an example of how the problems a care provider can face, event when it identifies an issue (see paragraph 21).
45. But even when a person’s mental capacity means they can make their own, unwise, decisions, there are still steps an organisation can take about the concerns (subject to data protection constraints):
• liaise with other organisations;
• inform the next of kin and family;
• consider whether it needs to refer to a council safeguarding team;
• consider if there was anything it could do to reduce the harm to the person making the unwise choices.
46. We know that in January 2021 Hales Care had enough concerns about Ms W’s food intake that it made a change to its instructions for its carers. But it did not report this to the Council, Ms W’s family, or health professionals. That was fault.
47. Hales Care says there is only one record of a carer noting concerns about Ms W’s eating. That is correct. In that instance, the carer did not also alert Hales Care’s office. That was fault.
48. But, as well as the one record of a carer noting concerns about Ms W’s eating, Hales Care’s daily records, show:
• further recorded instances of Ms W refusing food which were not reported to its offices;
• a change in the pattern of responses from Ms W. Before the changed care plan, there are many records of Ms W saying she had already eaten, or was not hungry. After the change, those responses lessened. Instead, the care provider’s records show a pattern of carers preparing food. But there are few instances of carers recording they had seen Ms W eating.
49. This raises the possibility Ms W was still not eating, which she might have been hiding. One of Hales Care’s instructions to its carers was to “…check what [Ms W had] eaten and document this”. Carers did not routinely record this. That was fault
50. This shows the limitations of the care provider’s approach. Given the January 2021 concerns, it was fault for the care provider to not then have introduced more formal nutrition monitoring – a food and fluid chart, for example. It also reinforces my view Hales Care should have informed other organisations about its concerns.
51. The records I have seen from the care provider have no indication it considered whether it should make a referral to the Council’s safeguarding team. It was fault that there is no record Hales Care considered the issue.

Ms W’s later care

52. I see no evidence of neglect in Ms W’s care at the end of her life. After she lost the capacity to make her own decisions, in her best interests, Ms W moved to a care home. I see no fault in that decision.
53. The care home and Council’s records show they liaised with healthcare professionals about care, because of concerns about Ms W. But unfortunately, she passed away a few months after moving. I see no fault with the care provided during that time.

Did the fault cause an injustice?

54. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We will not recommend an organisation make a payment in recognition of, for example, the impact of poor care that person might have received while they were alive. This is because the person who received the poor care cannot benefit from such a payment.
55. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a token payment to them as a remedy for their own distress.
56. So I have considered the injustice to Ms V. The injustice to her is some distress and uncertainty about whether events might have unfolded differently if the care provider had acted without fault.

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Recommended action

57. 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 Hales Care, I made recommendations to the Council.
58. As a personal remedy to Ms V, I recommended that, within a month of my final decision, the Council:
• write to her apologising for the faults I have identified;
• make her a symbolic payment of £300 to acknowledge the distress in the uncertainty of not knowing if things might have been different, but for the fault.
59. The Council has agreed to this recommendation.
60. As a service improvement, I asked the Council to agree an action plan with the care provider to address the issues of poor practice and poor record keeping highlighted in this complaint.
61. In response to my draft decision the Council and care provider advised of actions it had already taken that amounted to what I had recommended:
• Hales Care advised it had made improvements to its record keeping around nutrition and hydration. That has allowed better monitoring of these issues. It had also introduced a new competence for its carers, highlighting the importance of good hydration and nutrition;
• the Council advised it had already been monitoring the care provider and seeking improvements from it. It had seen improvements, leading to it, earlier in the year, lifting some restrictions it had placed on its use of the care provider. The Council advised it was continuing to monitor Hales Care’s performance.
62. The Council agreed to send a further reminder to the care provider, on the importance of record keeping of nutritional intake. And that it should remind its staff to escalate any concerns. The Council would incorporate these issues into its ongoing monitoring of the care provider.
63. The Council should provide this reminder within a month of this decision.

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Final decision.

64. I intend to uphold this complaint. As the Council has agreed to my recommendations, I have ended my investigation.

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Parts of the complaint that I did not investigate

65. Ms V asked that we investigate Ms W’s significant weight loss in the time before 2019. A complaint about those matters is late (see paragraph 5). I see no reason why it would have been unreasonable for Ms V to have contacted us in 2019 about those concerns. So my decision is it is now too late to investigate that part of Ms V’s complaint.

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Investigator's decision on behalf of the Ombudsman