Summary: We found fault by Suffolk County Council, Care UK and NHS Suffolk and North East Essex Integrated Care Board with regards to the care provided to Mrs C when she was resident in the Care Home. This fault placed Mrs C at risk and caused her daughter, Mrs B, significant distress and uncertainty. The Council, Care UK and the ICB will take action to prevent similar problems occurring in future. They will also pay Mrs B a symbolic financial remedy. There was no fault with regards to the handling of an NHS Funded Nursing Care review by the ICB.

The complaint

1. The complainant, Mrs B, is complaining about the care and support provided to her mother, Mrs C, by Suffolk County Council (the Council), NHS Suffolk and North East Essex ICB (the ICB) and Cedrus House Care Home (the Care Home – operated by Care UK).
2. Mrs B complains that the Council, ICB and Care UK failed to ensure Mrs C received appropriate care between September 2022 and December 2023 when she was a resident in the Care Home. Mrs B says care planning documentation was poor and did not accurately reflect Mrs C’s complex health needs as set out in the Decision Support Tool (DST) the ICB completed for her in October 2021. Mrs B says this meant the care provided to her mother in the Care Home was inadequate and did not meet her needs.
3. In addition, Mrs B says the ICB denied the family a right of appeal against the Funded Nursing Care (FNC) review undertaken in February 2023.
4. Mrs B says the failure to provide Mrs C with appropriate care placed her at risk and contributed to her death in January 2024. Mrs B says these events, and her subsequent attempts to resolve the matter through the complaints process caused her great distress.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
6. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
7. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
8. We cannot question whether an organisation’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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. When investigating complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
10. If we are satisfied with the actions or proposed actions of the organisations that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(1), as amended)

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What I have and have not investigated

11. Mrs B complained that there was a delay when an ambulance crew attended to transport Mrs C to hospital in December 2023. Care UK acknowledged there had been a three-minute delay and apologised for this. Care UK said it had contacted the ambulance Trust involved to ask that the ambulance crew notify the Care Home when approaching to collect a resident, so it could reduce waiting times at the door. In my view, this is an appropriate and proportionate response to this part of Mrs B’s complaint. I consider further investigation would be unlikely to add to the work already undertaken by Care UK on this point.

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How I considered this complaint

12. I considered evidence provided by Mrs B and discussed the complaint with her. I also considered information and records provided by the Council, ICB and Care UK. I took account of relevant law, policy and guidance.
13. I considered comments from all parties on my original draft decision statement. All parties now have a further opportunity to comment on my revised draft decision. I will consider any comments before making a final decision.
14. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC)

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What I found

Relevant legislation and guidance

Continuing Healthcare

15. Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. The threshold for meeting the CHC Checklist is set low.
16. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. This assessment is completed using a decision support tool (DST). The DST is a record of the relevant evidence and decision-making.
17. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care (FNC), which is set at a weekly rate. The relevant ICB will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.
18. The government produces statutory guidance entitled ‘National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (the CHC Framework). This provides guidance for professionals involved in the CHC process. It states that where an individual is eligible for CHC funding, the local Integrated Care Board (in this case NHS Suffolk and North East Essex ICB) is responsible for care planning, commissioning services and case management.

Mental Capacity Act 2005

19. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.

Deprivation of Liberty Safeguards (DoLS)

20. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 that came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
21. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no other less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without authorisation, a deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to ensure that any deprivation of liberty is lawful. The Government issued a DoLS Code of Practice in 2008, to serve as statutory guidance on how DoLS should be applied in practice.
22. If there is a conflict about a deprivation of liberty and all attempts to resolve it have failed, the case can be referred to the Court of Protection.

Fundamental Standards of Care

23. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve (‘The Fundamental Standards’. The Care Quality Commission (CQC) has guidance on how to meet the Fundamental Standards.
24. Regulation 9 relates to person-centred care. The regulation says that the care and treatment of service users must:
1. be appropriate,
2. meet their needs, and
3. reflect their preferences.
25. The CQC guidance says an assessment of a person's care and treatment needs should include all their needs, “including health, personal care, emotional, social, cultural, religious and spiritual needs.”
26. Regulation 12 relates to safe care and treatment. The CQC guidance says that: “assessments, planning and delivery of care and treatment should:

• be based on risk assessments that balance the needs and safety of people using the service with their rights and preferences
• include arrangements to respond appropriately and in good time to people’s changing needs
• be carried out in accordance with the Mental Capacity Act 2005. This includes best interest decision making; lawful restraint; and, where required, application for authorisation for deprivation of liberty through the Mental Capacity Act 2005 Deprivation of Liberty Safeguards or the Court of Protection.”

27. Regulation 14 relates to meeting nutritional and hydration needs. The CQC guidance says care providers “must make sure that people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so.”
28. The guidance goes on to say that care providers “must include people's nutrition and hydration needs when they make an initial assessment of their care, treatment and support needs and in the ongoing review of these. The assessment and review should include risks related to people's nutritional and hydration needs.”
29. The guidance further says that “[n]utrition and hydration needs should be regularly reviewed during the course of care and treatment and any changes in people's needs should be responded to in good time.”
30. Regulation 17 relates to good governance. This regulation says care providers must “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service user and of decisions taken in relation to the care and treatment provided.”
31. The guidance adds that the care provider must have a process of regular audit to “assess, monitor and improve” the quality of the service it provides.

Background events

32. Mrs C had a diagnosis of Parkinson’s Disease, as well as other long-term health conditions. As a result, she had complex care needs.
33. In October 2021, the ICB completed a DST for Mrs C, with input from the services supporting her and her family. The DST recognised the impact of Mrs C’s Parkinson's Disease diagnosis. The assessment concluded that Mrs C had a primary health need and so was eligible for full CHC funding.
34. That month, Mrs C moved into a nursing home. The placement was funded by the ICB through Mrs C’s CHC entitlement.
35. Between May and September 2022, the ICB completed a CHC review, and a fresh DST. The review concluded that Mrs C no longer had a primary health need. Mrs C continued to receive an FNC contribution towards her nursing needs. However, she was required to contribute to towards the cost of her care in the placement.
36. As part of this process, the ICB completed a mental capacity assessment for Mrs C. This assessment found Mrs C had capacity to contribute to the DST process.
37. Mrs B repeatedly raised concerns that the Care Home was not meeting Mrs C’s complex care needs. In addition, in October, Mrs B’s sister contacted the Council to report concerns that Mrs C had not received a Care Act assessment to determine her social care needs and that she did not have a care plan in place.
38. In December, Mrs C’s savings fell below the capital threshold, and the Council began to fund her care (with an FNC contribution from the ICB).
39. In February 2023, the Council completed a Care Act Assessment. This recorded Mrs C’s Parkinson's Disease diagnosis as her primary health diagnosis. The assessment found Mrs C required support with various activities of daily living, such as nutrition, personal care and toileting.
40. That month, the ICB completed an FNC review. This found Mrs C remained eligible for an FNC contribution but not full CHC funding.
41. Mrs C was admitted to hospital in December 2023 with a blocked bowel. She died the following month.

My analysis and findings

Care Home – Care planning

42. Mrs B complained that care planning for Mrs C was poor. She said Mrs C’s care plans at the Care Home did not adequately reflect her complex care needs as set out in the DST the ICB completed in October 2021. As a result, Mrs B said the Care Home failed to provide Mrs C with the care she needed and that this ultimately led to her death.
43. In its complaint response, the ICB said that, when sourcing a placement, it sends care homes a copy of the person’s most recent DST. The ICB said it is then for the care provider to complete its own assessment and formulate a care plan.
44. Care UK said it uses any information it receives before a resident arrives at the placement (such as a DST) as a guide. Care UK said this information is used to inform the preadmission assessment. Care UK said there follows a further period of assessment after a resident is admitted. Care UK said Mrs C had been reviewed and her care discussed with Mrs B’s sister. Further, Care UK said it had obtained Mrs C’s medical history, and this was placed in her records.
45. Care UK accepted that Mrs B had submitted suggested amendments to the care plan but was unable to say why these amendments had often been delayed or not made at all.
46. In her complaint correspondence, Mrs B gave numerous examples of errors or omissions she had identified in the care plans put in place for Mrs C when she entered the Care Home. These included:

• language used around Mrs C’s Parkinson’s Disease medication was inaccurate, with incorrect or incomplete instructions for staff around missed doses or problems with absorption;
• many of Mrs C’s health conditions and related symptoms were excluded from the care plans. This included heart failure, as well as behavioural and cognitive problems related to Mrs C’s Parkinson’s dementia;
• Mrs C’s extensive falls risk factors were not properly recorded, leading to her overall falls risk being recorded incorrectly;
• several other assessments recorded in the care plan were incorrect. These included her continence care, pressure ulcer and catheter care assessments;
• details of Mrs C’s ongoing foot problems and the impact of these on her wider health were omitted; and
• the care plan did not address Mrs C cognitive, behavioural or psychological needs.

47. In October 2021, the ICB compiled a DST setting out Mrs C’s health needs. The DST noted that Mrs C was at risk of constipation and required regular laxative medication. The DST also noted Mrs C had a history of ulceration of her toes and had experienced amputation of one toe and partial amputation of another. This, along with other related health conditions, placed her at risk of falls. In addition, the DST noted that Mrs C’s Parkinson’s Disease medication had to be carefully managed and monitored. The DST also noted that Mrs C’s Parkinson’s-related dementia diagnosis affected her ability to “retain, recall, rationalise and weigh up information to make informed decisions…she is unable to make complex decisions about her health, wellbeing, property and finances without support.”
48. In addition to having access to the DST, the Care Home completed its own assessments when Mrs C was admitted. However, these were primarily brief tick-box forms that did not adequately reflect Mrs C’s complex care needs. One significant example is that the assessments made very little reference to Mrs C’s cognition, despite her needs in this care domain being documented as ‘high’ in the DST.
49. Another example relates to Mrs C’s falls risk. The DST recorded Mrs C’s mobility needs as ‘high’. It noted difficulties caused by her “cognitive decline”, as well as problems related to her feet and the need for specialist shoes when moving around. Despite this, the Care Home’s falls assessment:

• marked ‘no’ when recording whether Mrs C was “unsteady/unsafe walking”;
• marked ‘no’ when recording whether Mrs C had needs related to her feet and footwear; and
• marked ‘no’ when recording whether she had any cognitive impairment.

50. The Care Home ultimately recorded that Mrs C was at ‘medium’ risk of falls initially and later reduced this to ‘low’. This was despite the ‘very high’ risk of falls noted in the DST, and Mrs C’s recorded history of falls.
51. Another example was the recording of Mrs C’s Parkinson’s Disease medication and how this should be managed. These medications were considered both ‘critical’ and ‘time-critical’ in maintaining Mrs C’s wellbeing. The failure to administer the medications as prescribed could have had very serious effects for Mrs C. Mrs C’s care plan erroneously recorded that a GP should be contacted if Mrs C declined doses of the medication for three consecutive days, rather than declining a maximum of three doses. Further, the care plan took no account of medication doses missed for other reasons (such as Mrs C being unable to absorb a dose). These were significant inaccuracies and omissions.
52. One further example was Mrs C’s heart problems (and associated symptoms such as shortness of breath), which were not documented in her care plans at all, despite having been brought to the attention of Care Home staff by her GP.
53. It is important to note that these are only some examples of areas in which the assessments did not accurately reflect Mrs C’s needs. The inadequate nature of the assessments in turn affected the quality of the resulting care plans. These similarly lacked detail and omitted important information about her needs. Again, the care plans included no reference to the potential impact of Mrs C’s cognitive problems on her wider care needs. This is particularly concerning given detailed information about Mrs C’s care needs was documented in the DST, to which the Care Home had access.
54. The fundamental standards emphasise the importance of effective assessment and care planning in delivering safe and person-centred care. The evidence I have seen shows the care provided by Care UK in these important areas was contrary to the requirements of the fundamental standards. This was fault by Care UK, which was responsible for Mrs C’s care from her admission until December 2022 when her savings fell below the required threshold.
55. In addition, section 187 of the CHC Framework is clear that “the ICB is responsible for [a person’s] case management, including monitoring the care they receive and arranging regular reviews”. This placed a duty on the ICB to maintain oversight of the care it was commissioning during the period that Mrs C was in receipt of CHC funding.
56. The evidence I have seen shows Mrs B and her family repeatedly raised concerns about the standard of Mrs C’s care planning documentation and the impact of this on her care in the care home. Despite this, I found no evidence to suggest the ICB intervened to review Mrs C’s care provision or took any other action further to the concerns raised by her family. This is evidence of fault by the ICB.
57. From December 2022, the Council took over responsibility for Mrs C’s care, which meant Care UK was acting on the Council’s behalf. In addition, the Council held a similar oversight duty in its own right as the commissioner of Mrs C’s care during that latter period. As a result, the Council shares responsibility for the fault I have identified above.
58. It is not now possible to determine the impact of poor care planning on every aspect of Mrs C’s day-to-day care. Nor can I say whether the outcome of Mrs C’s care would have been significantly different even if the ICB or Council had intervened when Mrs B and her family raised concerns.
59. Nevertheless, I consider the failings in the care planning for Mrs C placed her at risk of harm. This also meant opportunities were missed to explore whether Mrs C required additional care and support to meet her complex needs during her time in the Care Home. This in turn caused Mrs B significant distress and uncertainty.
60. This was exacerbated as neither the Council, ICB nor Care UK were responsive when Mrs B and her sister raised their extensive concerns about the quality of Mrs C’s care plans. Indeed, relatively little appears to have been done to review and amend the care plans in light of the family’s concerns and I found no adequate explanation for this.
61. This is further evidence of fault by all parties and added to Mrs B’s frustration and distress.

Care Home – Consideration of capacity

62. Mrs B complained that the Care Home failed assess Mrs C’s capacity to make decisions about her care. Instead, Mrs B said the Care Home relied on the presumption of capacity despite evidence suggesting Mrs C was suffering from significant cognitive impairment and confusion. Mrs B said this meant Mrs C was left to make decisions about important aspects of her care, such as her fluid intake and bowel function.
63. The Care UK complaint response explained that presumption of capacity is a key principle of the MCA. It said staff at the Care Home had found no reason to believe Mrs C lacked capacity to make decisions about her activities of daily living.
64. The MCA sets out five key principles to consider surrounding a person’s capacity to make decisions. Some of these are particularly relevant in Mrs C’s case.
65. Principle 1 says that “[a] person must be assumed to have capacity unless it is established that he lacks capacity.” The Code clarifies that a person may need support to make or communicate a decision but that this does necessarily mean that the person cannot make that decision. Care UK is correct to point out that this is a central principle of the MCA, therefore.
66. The Code is clear that any consideration of a person’s capacity must relate to their ability to make a specific decision. This is an important consideration as it may mean a person is found to lack capacity to make one decision while retaining the capacity to make others.
67. An organisation should not assume that, just because a person lacks capacity to make a certain decision, they lack capacity to make any decision.
68. Principle 3 establishes that “[a] person is not to be treated as unable to make a decision merely because he makes an unwise decision.” The Code adds that “[t]here may be cause for concern if somebody:

• repeatedly makes unwise decisions that put them at significant risk of harm or exploitation or
• makes a particular unwise decision that is obviously irrational or out of character.”

69. The Code emphasises this does not automatically mean a person lacks capacity, but that further investigation may be necessary. Section 2.11 of the Code says this may involve looking at a person’s past decisions and choices, as well as any medical condition or disorder that may affect their capacity to make a certain decision.
70. It is important to be clear that it is not for the Ombudsmen to decide whether a person lacks capacity. This is a matter of judgement for the professionals involved in that person’s care. My investigation has focused therefore on whether the Care Home properly considered Mrs C’s ability to make certain decisions about her care.
71. In her complaint representations, Mrs B emphasised the impact of Mrs C’s dementia diagnosis on her ability to safely make decisions about her care. Mrs B said the October 2021 DST cast doubt on Mrs C’s ability to make decisions. One entry in the DST recorded that Mrs C “has awareness of only a limited range of needs and basic risks. Although they may be able to make some choices appropriate to need on a limited range of issues, they are unable to consistently do so on most issues…which consequently puts them at high risk of harm, neglect or health deterioration.” Another entry recorded that “there is complexity to [Mrs C’s] care with her significant cognitive impairment…she is unable to meet the majority of her own care needs”.
72. In addition, Mrs B highlighted correspondence and records from clinicians involved in Mrs C’s care that suggested her cognition was impaired. This included a letter from the local memory clinic in August 2023 that said “[Mrs C] will absolutely have moments, or even days, where she can make capacitous decisions about her care needs…but complex decision-making is likely to require further assessment of understanding.”
73. There was ample evidence available to Care Home staff to suggest Mrs C was experiencing impaired cognition. This should have prompted them to complete more comprehensive assessments of Mrs C’s capacity to make certain decisions about her care. However, there is no evidence that they did so. This is fault by Care UK and the Council.
74. I cannot say whether the Care Home would have found Mrs C lacked capacity to make decisions about her care even if it had completed thorough capacity assessments. Nevertheless, Mrs B has been left with uncertainty as to whether additional care and support would have been available to Mrs C if she was found to lack capacity.
75. The issue of whether Mrs C had capacity was particularly important with regards to her bowel care and fluid intake. I have considered these aspects of Mrs C’s care further below.

Care Home – Fluid and bowel care

76. Mrs B complained that Care Home staff failed to provide Mrs C with adequate fluid care, even though she was at high risk of dehydration. Mrs B said Mrs C’s care plan erroneously recorded a 1300ml (rather than 1500ml) daily fluid intake target. Mrs B said staff were content to let Mrs C report and manage her own fluid intake when she lacked capacity to do so reliably. Mrs B said Mrs C consequently became dehydrated and this affected her kidney function.
77. Mrs B also complained about the handling of Mrs C’s laxative medication and her wider bowel care. She said staff allowed Mrs C to take her laxative medication when she wanted and had no plan in place for monitoring the effectiveness of this medication. Mrs B said Mrs C had a documented history of struggling to manage her constipation. In addition, Mrs B said staff did not maintain bowel charts as required by her care plan.
78. Mrs B said Mrs C’s care plan recorded that she was “unable to self-administer her medication and she has requested trained staff to administer the medication prescribed.” Mrs B queried why this approach had not been taken with Mrs C’s pro re nata (PRN or ‘as needed’) medications, such as laxatives.
79. Mrs B said this poor bowel care, along with Mrs C’s inadequate fluid intake, resulted in her admission to hospital and subsequent death.
80. Care UK said staff could only prompt and encourage Mrs C to take on fluids and there were times when she declined drinks. Care UK said its policy was to make a referral to a GP for any resident who failed to meet their fluid target for three consecutive days. Care UK said a GP had suggested a lower 1300ml target for Mrs C and this had been recorded in her care plan. Care UK did acknowledge and apologise that recording of Mrs C’s fluid intake was not always as accurate as it should have been.
81. Care UK said Mrs C had capacity and was able to inform staff when her bowels had not opened, or if she was feeling bloated from constipation, or experiencing loose stools.
82. The DST completed in October 2021 noted that Mrs C’s fluid levels needed to be measured carefully daily. The risk of dehydration was significant for Mrs C and had the potential to impact on other areas of her care (such as her heart failure, pressure ulcer care and risk of constipation).
83. Mrs C’s care plan recorded that she had been malnourished on admission and that her Malnutrition Universal Screening Tool (MUST) score was ‘high’. The care plan recorded a 1300ml daily fluid target and required Care Home staff to maintain a fluid balance chart. The care plan noted staff should encourage Mrs C to take fluids and ensure she always had a jug of water and clean glass available.
84. As I have explained above, there was evidence available to the Care Home that cast doubt upon Mrs C’s capacity to make decisions about complex aspects of her care. This included maintaining her fluid levels and managing her constipation. Despite this, the Care Home did not carry out any capacity assessments to consider whether she could safely manage these aspects of her care.
85. Furthermore, the care records did not accurately capture Mrs C’s fluid needs or properly record her intake. As a first point, the recorded fluid target of 1300ml was incorrect. I note in its response that Care UK said this was the fluid intake target recommended by a GP. However, in October 2023, the local heart failure clinic determined that Mrs C required 1500ml of fluids daily. The Care Home did not amend the care plan to reflect this.
86. In addition, the fluid balance charts maintained by the Care Home did not consistently or accurately record Mrs C’s fluid balance levels. Care UK acknowledged this in its complaint responses. This appears to have been particularly challenging as Mrs C was prone to emptying her catheter bag without the knowledge of staff. In addition, staff regularly relied upon Mrs C to accurately report her fluid consumption. It is unclear whether she had the capacity to do so effectively. As noted above, the Care Home did not test Mrs C’s capacity on this point.
87. A dietitian reviewed Mrs C regularly throughout her admission to the Care Home. On each occasion, the dietitian noted that Mrs C’s fluid intake was below the target level. This is also reflected in the fluid charts maintained by the Care Home, which show Mrs C rarely took on the level of fluid she required. This placed her at risk of dehydration.
88. The care records show Care Home staff did sometimes raise this as an area of concern with the GP. Nevertheless, I found no evidence to suggest the Care Home undertook a meaningful review of Mrs C’s fluid care. Nor did it amend Mrs C’s care plan to provide further instruction for staff on how to manage Mrs C’s fluid levels and what did to do if she consistently failed to take on adequate fluids.
89. The DST also recognised that Mrs C suffered from severe constipation that had led to faecal impaction (a blockage of hardened stools in the rectum or lower colon) in the past. The DST made clear that this risk was increased due to Mrs C’s Parkinson’s Disease diagnosis. The DST noted Mrs C “doesn’t accept how serious this issue is or recognise that she has it”. It went on to note that carers should take responsibility for assessing the frequency and dose of Mrs C’s laxative medication.
90. Mrs C’s care plan recorded that she “has unpredictable bowel movements, sometimes constipation and sometimes diarrhoea”. The care plan noted that Mrs C was reluctant to ask for assistance and would not use continence products. However, it also recorded that Mrs C would ring her call bell during the night if she needed assistance to go to the toilet. The care plan recorded that staff should record all bowel movements on an appropriate chart. The care plan did not specify the need for care staff to manage Mrs C’s laxative medication.
91. Despite what was recorded in the care plan, the Care Home failed to maintain bowel charts for Mrs C. This meant staff were reliant upon Mrs C to accurately report her bowel movements. Similarly, staff allowed Mrs C to decide when she required laxative medication (and how much) rather than taking responsibility for this aspect of her care. These were significant omissions given that Mrs C was at risk of severe constipation and contrary to the requirements of her care plan.
92. As I have explained above, evidence was available to the Care Home that should have led it to assess Mrs C’s capacity to make decisions regarding her care in this important area. However, it did not do so.
93. In summary, the care provided to Mrs C in these important areas was inadequate and not in keeping with the requirements of the fundamental standards. This represented fault by Care UK. This fault is shared by the ICB and Council, which took no meaningful action when Mrs B and her family raised concerns about Mrs C’s care in these areas.
94. In considering the impact of this fault, I note that Mrs C was suffering from dehydration, acute kidney injury and constipation when she was admitted to hospital in December 2023. These are symptoms that could be associated with poor fluid and bowel care. However, Mrs C’s general frailty, and the complexity of her overall needs, means I cannot say whether the outcome of her care would have been significantly different with improved care in these areas. Nevertheless, I accept that inadequate fluid and bowel care placed Mrs C at greater risk. It also meant opportunities were missed to explore whether she required additional care to meet her needs in these important areas. This added to Mrs B’s distress and uncertainty.

Care Home – DoLS

95. Mrs B complained that the Care Home did not submit a DoLS application to the Council for Mrs C even though she was on a locked wing and had a stair gate across her doorway that she was unable to open.
96. Care UK said Mrs C had been given the opportunity to move from the dementia wing but preferred to stay as she liked her room. Care UK said the stair gate had been installed at Mrs C’s request as she did not want other residents to be able to wander into her room. Care UK acknowledged Mrs C had struggled to open the initial gate and that this had been replaced.
97. The DoLS are intended to offer legal protection for vulnerable people who lack capacity and are, or may become, deprived of their liberty. In order to come within the scope of DoLS, the person must be detained in a hospital or care home for the purposes of receiving care and treatment.
98. Under case law that was extant at the time of Mrs C’s admission to the Care Home (Cheshire West and Chester Council v P [2014] UKSC 19), there were effectively two issues to consider when deciding whether a person was being deprived of their liberty. First, it had to be established that the person lacked capacity to consent to their care arrangements. Second, it was necessary to establish that the person was “under continuous supervision and control and is not free to leave.”
99. In my analysis above, I concluded that evidence was available that should have led the Care Home to assess Mrs C’s capacity to make decisions about complex aspects of her care (such as around bowel care and fluid intake). However, this is not to say Mrs C lacked capacity more widely to consent to her general care arrangements. I note Care UK’s response that Mrs C chose to remain on the secure dementia wing and that she was considered to have capacity to make this decision. I also note that staff were able to support her to leave the area when she wished.
100. As Mrs C was considered to have capacity to make this decision, the DoLS provisions did not apply.
101. In my view, the evidence supports Care UK’s position that a DoLS application was not indicated at that time, albeit I accept Mrs B retains doubts about Mrs C’s capacity. I find no fault by Care UK or the Council on this point.

Care Home – Wound care

102. Mrs B complained that Mrs C suffered from recurrent pressure ulcers on her feet and related problems that had resulted in the amputation of some of her toes.
103. Mrs B said a podiatrist had reviewed Mrs C in April 2022 and identified that she had three ulcerated toes. Mrs B said these were not documented in the Care Home records. Mrs B said the family sent evidence of ulceration to the Care Home throughout 2022 and 2023 and that ulcers had also been identified by visiting health professionals such as Mrs C’s GP and podiatrist.
104. Despite this, Mrs B said Care Home staff did not document the ulcers or ensure Mrs C received appropriate care for them.
105. Care UK said Mrs C had two wound care plans in place from the point of admission. These recognised the high risk of pressure damage and skin breakdown.
106. Care UK said a specialist tissue viability nurse visited Mrs C in June 2022 and identified no ulcers. Care UK said Mrs C had been reviewed again in September and October and that these reviews did not identify any concerns about ulceration. Care UK concluded that there were detailed entries in the care notes relating to the care of Mrs C’s feet and toes.
107. It is important to note that Mrs C was reviewed regularly by specialists such as the podiatrist and tissue viability nurse over the course of her time in the Care Home. There is evidence to show that appropriate health professionals had oversight of her care in this area, therefore.
108. Nevertheless, I share Mrs B’s view that Mrs C’s ulcers (including the location, type and severity) should have been clearly noted in the care records. These should then have been used to inform and update Mrs C’s care plans. The care plans should also have included clear instructions for Care Home staff in terms of warning signs to look for and action to be taken if an ulcer was identified. However, this was not done. This was further evidence of poor care planning and contrary to the requirements of the fundamental standards. This was fault by Care UK and the Council. This fault was shared by the ICB, which had been made aware of the family’s concerns about poor care in this area.
109. Poor care planning in this area increased the risk to Mrs C and added to Mrs B’s distress and frustration.

FNC appeal

110. Mrs B complained that the ICB denied her the right of appeal when it completed an FNC review in February 2023.
111. In its complaint response, the ICB said there was no right of appeal for an FNC eligibility decision and that it had followed the CHC Framework appropriately.
112. In its response to my enquiries, the ICB provided some additional information. The ICB said it had sent an outcome letter to Mrs B’s sister (with whom she shared lasting power of attorney for Mrs C) following the FNC review that informed her of her right to request a review of that decision. The ICB clarified that this is not the same as a formal appeal. The ICB went on to say that it had received no such request within the 28-day timescale specified in the letter.
113. Section 286 of the CHC Framework says “[i]f at the NHS-funded Nursing Care review it is determined that the individual does not require assessment for NHS Continuing Healthcare, they or their representative should be advised of this and provided with a copy of the annotated checklist or DST which indicates that there has been no material change in their needs. They should be given information explaining how they can request a review of the outcome of the NHS-funded Nursing Care review”.
114. The ICB’s records contain a copy of the letter it refers to above. This was sent to Mrs C (with Mrs B’s sister copied in) on 10 May 2023.
115. I am satisfied Mrs C’s family was given an opportunity to request a review of the FNC decision, therefore, albeit I accept Mrs B may not have been aware of this. I find no fault by the ICB on this point.

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Action

116. Within one month of my final decision statement, Care UK will write to Mrs B to apologise for the distress and uncertainty caused to her by its failure to:

• properly assess Mrs C on admission and put in place a care plan that accurately reflected her complex care needs;
• review Mrs C’s care plan regularly to ensure it was correct and up-to-date and reflected further information provided by specialists involved in Mrs C’s care;
• promptly amend the care plan when Mrs B and her sister pointed out information that was incorrect or had been omitted altogether;
• properly consider Mrs C’s ability to make decisions about her bowel care and fluid care; and
• to provide adequate fluid, bowel and wound care to Mrs C during her time in the Care Home.

117. The apology should acknowledge that this fault placed Mrs C at risk of harm during her time in the Care Home.
118. Care UK will pay Mrs B £500 in recognition of the distress and uncertainty caused to her by the fault I identified.
119. Within three months of my final decision statement, Care UK will write to the Ombudsmen to explain:

• what action it will take, or has taken, to ensure the Care Home maintains resident care plans that represent an “accurate, complete and contemporaneous record” of each service user’s care needs and how these will be met, in accordance with the requirements of the Fundamental Standards;
• what action it will take, or has taken, to ensure relevant staff are familiar with the provisions of the Mental Capacity Act 2005. This should include ensuring staff are familiar with key principles of the legislation (such as the fact that capacity is decision-specific) and the accompanying Code of Practice;
• what action it will take, or has taken, to ensure the Care Home is providing fluid care that is in keeping with the requirements of the Fundamental Standards. This should include ensuring staff are maintaining appropriate fluid balance charts for residents who are at risk of dehydration;
• what action it will take, or has taken, to ensure the Care Home is providing bowel care that is in keeping with the requirements of the Fundamental Standards. This should include ensuring appropriate bowel charts are kept for patients at risk of constipation. It should also include ensuring guidance is in place for staff around the management and treatment of chronic constipation;
• what action it will take, or has taken, to ensure the Care Home is providing wound care that is in keeping with the requirements of the Fundamental Standards. This should include ensuring staff are aware of the need to accurately record a resident’s wounds to allow for them to be monitored and treated appropriately; and
• what action it will take, or has taken, to monitor the quality of record-keeping in the Care Home on an ongoing basis.

120. Within one month of my final decision statement, the ICB and Council will write a joint letter to Mrs B to apologise for the distress and uncertainty caused to her by;

• their shared failure in their capacity as commissioners to monitor and review the quality of Mrs C’s care during her time in the Care Home; and
• their shared failure to be responsive to concerns raised by Mrs C’s family about her ongoing care provision.

121. The ICB and Council will each pay Mrs B £500 (a total of £1,000) in recognition of the distress and uncertainty caused to her by the fault I identified.
122. Within three months of my final decision, the ICB and Council will write a joint letter to the Ombudsmen explaining what action they will take, as commissioners, to maintain oversight over the quality of care at the Care Home on an ongoing basis.
123. The ICB, Council and Care UK will provide us with evidence they have complied with the above actions.

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Decision

124. I found fault by the ICB, Council and Care UK causing an injustice. The ICB, Council and Care UK have agreed the above actions to remedy this injustice.
125. I found no fault by the ICB in terms of its handling an FNC review.

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Investigator's decision on behalf of the Ombudsman