Summary: Four Seasons Health Care and Sunderland City Council missed an opportunity to consider further support to reduce the risk of Mr Y falling. Four Seasons’ record keeping was not in line with the relevant guidance. It should also have considered Mr Y’s welfare when residents wandered into his room. Those faults caused Mrs X an injustice which the organisations have agreed to remedy.

The complaint

1. Mrs X complains about the care and support offered to her father, Mr Y between 4 November 2022 and 13 March 2023 at Maple Lodge Care Home (the Home – owned by Four Seasons Health Care [the Care Provider]). She complains about:
• The amount of falls her father had owing to the lack of regular checks, and closing his door when they should not have. The lack of falls support impacted his physical health.
• The Home expecting Mr Y to carry out exercises as advised by a Physiotherapist.
• The lack of encouragement to involve Mr Y in activities around the Home, or to take him outside which he enjoys.
• The Home’s continence care for Mr Y. The family and other professionals regularly found him in a poor state.
• The lack of action when Mr Y displayed suicidal thoughts.
• The Home’s record keeping. She says it was so poor the Home needed to create many retrospective records.
• The Home did not tell the family what action it took to stop people wandering into Mr Y’s room.
2. Mrs X said the issues above impacted her father’s physical and mental health. The poor continence care was degrading and impacted his dignity. Mrs X also said it was frustrating the Home did not seem to listen to her. The events caused her worry and distress.
3. Mrs X would like the Home to take action to improve the support to her father, and potentially to others.

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The Ombudsmen’s role and powers

4. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen 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).
5. 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.
6. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
7. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may 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. 
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I considered the information Mrs X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
10. Mrs X and the organisations had an opportunity to comment on my draft decision. I have considered their comments before making a final decision.

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What I found

Relevant legislation and guidance

Care and support to Mr Y

11. 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 which care must never fall below. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

Discharge to Assess and Continuing Healthcare funding

12. Discharge to Assess is an NHS pathway to support the discharge of people medically fit to leave hospital but who require further assessment to establish their ongoing health and social care needs. Some people may be able to return home with short-term support, but others may need to move to a care or nursing home.
13. 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.
14. 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. The DST should be completed within 28 days of the CHC Checklist unless there are ‘valid and unavoidable’ reasons for it taking longer.
15. The DST makes a recommendation about whether a person is eligible for CHC or for NHS-funded nursing care, which is set at a weekly rate. The relevant Integrated Care Board (ICB) will then make a final decision which must uphold the recommendation of the DST in all but exceptional circumstances.

Deprivation of Liberty Safeguards

16. 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. 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.

What happened

17. In October 2022, Mr Y was in hospital. On 1 November, following a Mental Capacity Assessment, a Social Worker said Mr Y could not make decisions about his future accommodation, care and support. The Social Worker decided it was in his best interests to move to the Home.
18. On 4 November 2022, the hospital discharged Mr Y to the Home under the Discharge to Assess process. At that time, it asked the CHC Team to decide if Mr Y was eligible for CHC. Five days later, a Social Worker completed a CHC checklist which indicated Mr Y may be eligible for CHC.
19. The ICB funded Mr Y’s residential placement until 30 November. After then, the ICB agreed to jointly fund Mr Y’s placement with the Council pending the outcome of the CHC assessment.
20. On 5 December 2022, the CHC Team tried to carry out the DST. The lack of records meant it could not decide if Mr Y was eligible for CHC. The Home agreed to update it records and the ICB would assess him again.
21. Two weeks later, technology problems meant the CHC Team had to postpone the DST.
22. On 20 January 2023, the CHC Team carried out the DST and decided Mr Y was eligible for CHC. However, the ICB disagreed with that decision. While the ICB disputed the CHC decision, it continued to jointly fund Mr Y’s stay with the Council.
23. Two months later, the CHC Team decided Mr Y did not have a primary health need and was not eligible for CHC. From that point onwards Mr Y self-funded his stay at the Home.
24. In mid-March 2023, the Home responded to Mrs X’s complaint. Mrs X then complained to the Ombudsmen a few weeks later.
25. In June 2023, the Council also responded to Mrs X’s complaint.

My findings

26. In this case, I will hold the Home responsible for any fault which occurred between 4 and 30 November 2022. This is because it was acting as a health provider on behalf of the ICB. After then, I will hold the Council and Home jointly responsible for any fault owing to the funding arrangement then.

Falls

27. Mrs X says the Home’s efforts to reduce Mr Y’s falls did not work because of his dementia. He could not remember how to use the call buzzer. She says the best way to reduce falls was to keep his door open, so staff could see him more often. But often the door was closed by staff.
28. In response to Mrs X’s complaints:
• The Home said it could not prevent falling but had carried out appropriate risk assessments. It used sensor equipment and referred Mr Y to the Falls Team. It agreed Mr Y’s door should be kept open.
• The Council said Home staff used the sensor mat overnight but during the day he liked to take the sensor mats apart. Also, 1:1 care was not appropriate to stop Mr Y from falling.
29. In response to my enquiries, the Council told me:
• In November 2022, a Social Worker missed an opportunity to formally record that Mr Y could not make decisions about his care and support, including his mobility.
• In January 2023, it decided Mr Y could make decisions about his care and support. But a month later, it decided he could not and authorised a Deprivation of Liberty Safeguard (DoLS).
• Mr Y received support from the Council and an NHS Trust’s Community Stroke Team which aimed to improve his mobility and reduce the risk of falls.
• It should have reviewed Mr Y’s Mobility Care Plan earlier than it did. It was sorry for that, and it will highlight the importance of timely reviews in monthly supervision and annual appraisal meetings with adult social care staff.
30. In response to my enquiries the Home told me the advice from the Council was contradictory when they said Mr Y did and did not have capacity. But the Home accepted it did not make a DoLS referral in November 2022.
31. I have reviewed the Home’s records.
32. The Home’s Mobility Care Plan said Mr Y needed the support of two staff for all transfers. He could use equipment and a wheelchair to mobilise and was a high risk of falls. He had a sensor mat in place.
33. The Home’s Fall Risk Assessment noted Mr Y scored a 16 on admission (high risk of falls). After a month, that increased to 25. The Home also noted in Mr Y’s Capacity Care Plan that considering the amount of falls he had, he lacked insight into keeping himself safe.
34. From the evidence I have seen, there is no doubt Mr Y was a high risk of falls. He fell regularly between November 2022 to March 2023.
35. From November 2022 to January 2023, I consider the Home and Council missed opportunities to formally assess and review Mr Y’s capacity to safely support himself. That was fault. The Home and Council both should have considered carrying out a mental capacity assessment and best interest decision (if necessary). During that period, the Council understood Mr Y was falling regularly despite having support in place. But it did not review that support, which was fault. I cannot say, even on the balance of probabilities, what the outcome of any assessment/review would have been. That leaves Mrs X uncertain if support for Mr Y would have been different and reduced the amount of falls he had.
36. I am happy the Council has recognised that fault during my investigation. It has put in place appropriate improvements to avoid similar fault happening to others. However, the Home needs to take further action to remedy Mrs X’s uncertainty.
37. Mrs X requested 1-1 support for Mr Y to prevent further falls. In response, the Council agreed to carry out 15-minute observations before agreeing to 1-1 support.
38. During my investigation, the Council told me it did not set a time to review how effective the 15-minute observations were. That led to a delay considering Mrs X’s request for 1-1 support. I agree that was fault. I understand how frustrating that delay would have been for Mrs X. The Council should take further action to remedy Mrs X’s frustration.
39. Mrs X says the Home did not always record Mr Y’s falls.
40. I have reviewed the Home’s Mobility Care Plan and Daily Record. I have noted that from admission to 13 March 2023, Mr Y fell 17 times. Each time, the Home completed a detailed note about the fall, including any injuries and any advice to Mr Y. Mrs X told me Mr Y fell more than 17 times. I consider, on the balance of probabilities, she is correct. The Home’s record keeping (as will become clear during this statement) was generally poor. Based on this, I am not persuaded the Home’s record keeping was in line with Regulation 17 of the Fundamental Standards. I understand that would have been frustrating for Mrs X.

Exercises

41. Mrs X says staff did not do enough to encourage Mr Y to exercise his lower limbs. It was not enough to expect Mr Y to do them considering his dementia. The Home also lost a copy of that exercise plan.
42. In response to Mrs X’s complaints:
• The Home said staff prompted Mr Y to complete his daily exercises, but at times he refused. It agreed that it had lost the exercise plan.
• The Council said when it asked the Home about those exercises, the Home’s staff were unaware Mr Y needed to do daily exercises. There was little evidence of exercises in the Home’s records.
• The Council asked the Home to familiarise themselves with the exercise plan and complete those on a daily basis. If Mr Y refused, it should record why. If the Home felt the exercises were not necessary, then it should discuss that with his Physiotherapist.
43. I have reviewed the Home’s Mobility Care Plan. It appropriately updated the Plan on 18 January 2023: “[Mr Y] has received active lower limb exercises plan today from the physiotherapy team. These exercises need to be done daily by the staff on duty.” Three weeks later, staff noted that Mr Y had refused to do them.
44. I have also reviewed the Daily Record between January and March 2023. I agree with the Council’s view that there was little evidence the Home recorded attempts to carry out the exercises with Mr Y. The Home should have recorded those attempts either in the Mobility Care Plan or Daily Record. It did not do either, which I consider was fault.
45. The purpose of those exercises was to improve his stability and mobility, which in turn may have reduced the risk of falls. I accept, on the balance of probabilities, Mr Y would have refused to complete the exercises at times. However, that was still a missed opportunity. That leaves Mrs X uncertain if Mr Y’s mobility would have improved had staff encouraged Mr Y to complete the exercises.
46. I consider the Council has appropriately highlighted that fault to the Home and made robust recommendations to improve the Home’s practice. I am not persuaded the Ombudsmen could achieve anymore more for Mr Y or Mrs X. Therefore, I will not take any further action with this part of Mrs X’s complaint.
47. Mrs X says the Home did not record visits by the Physiotherapist.
48. I have reviewed the Home’s Professional Visit Record. It recorded the Physiotherapist referral (on 5 November 2022), assessments (on 21 November and 21 December) and re-assessment/discharge of Mr Y (on 20 January 2023). However, the Physiotherapist reviewed Mr Y another nine times, which the Home did not record. I do not consider the Home’s record keeping here was in line with Regulation 17 of the Fundamental Standards. I understand how frustrating that would have been for Mrs X.

Social activities

49. Mrs X says the Home never tried to understand Mr Y’s likes and dislikes to inform his care and support. She says the Home did not regularly ask him to go outside, and when he refused would not ask him again. She says generally, it did not work very hard to involve him in activities.
50. In response to Mrs X’s complaints:
• The Home agreed to get to know Mr Y better to tailor activities to his needs. It often invited Mr Y to join in but refused to get involved.
• The Council said Mr Y was engaging more with activities, especially gardening club. The Home was taking Mr Y outside the Home more often and agreed to record when Mr Y refused to get involved. It also recommended the Home complete Mr Y’s ‘life story’ to better understand his likes and dislikes.
51. Mr Y’s Social Interactions Care Plan noted staff would encourage Mr Y to participate in planned activities, and he preferred smaller groups.
52. I have reviewed the Daily Records and the above Care Plan. Before March 2023, I cannot see a record of Mr Y’s likes or dislikes. Also, I cannot see any record of the Home’s attempts to involve Mr Y in certain activities. I have only seen on one occasion Mr Y refused to join in “Xmas PJ” day.
53. I am not persuaded the Home assessed or supported Mr Y’s social needs in line with Regulation 9 of the Fundamental Standards. That was fault. I accept, on the balance of probabilities, Mr Y would have sometimes refused to join in activities even if they were tailored to his needs. It is clear from the Daily Record that Mr Y preferred to stay in his room. However, I still believe that was a missed opportunity, which has caused Mrs X uncertainty.
54. However, I consider the Council has appropriately highlighted that fault to the Home and made robust recommendations to improve its practice. It seems clear that Mr Y is attending activities more regularly. It has also completed Mr Y’s life story to better understand his social preferences. I am not persuaded the Ombudsmen could achieve anymore more for Mr Y. Therefore, I will not take any further action with this part of Mrs X’s complaint.

Continence care

55. Mrs X says the family and other professionals regularly found Mr Y wet or had soiled himself on visits.
56. In response to Mrs X’s complaints, the Home said Mr Y’s personal care was irregular because of his mood. He often refused personal care, so would return later that day and offer that support again.
57. During my investigation, the Home told me the family and/or professionals did not tell staff about Mr Y’s state. It said it provided support in line with Regulation 10 of the Fundamental Standards.
58. I have reviewed the Council and Home’s relevant evidence.
59. The Council’s Care and Support Plan (dated 4 November 2022) highlighted Mr Y preferred to use a urine bottle and would ask to use the toilet to have a poo. Staff should support Mr Y with the urine bottle, and there was a risk of soiling himself.
60. The Home’s Urinary/Continence/Bowel Needs Care Plan (dated 8 November 2022) noted Mr Y was doubly incontinent at night. During the day, he can ask to go to the toilet. Also: “One staff to assist with toileting needs”. The Home carried out hourly personal care checks. The Home updated the Care Plan in late January 2023. It noted Mr Y needed to be assisted to the toilet regularly.
61. The Council’s Occupational Therapist (in December 2022) noted that Mr Y would have issues getting to the toilet due to his limited mobility. A wheeled commode helped support his toileting needs.
62. I have reviewed the Home’s Daily Records. It regularly recorded having carried out or offering hourly ‘personal care’ support each day. At times the Home specifically referred to toileting and continence care. I consider on the balance of probabilities, that included Mr Y’s continence checks. While it would have been better practice to specifically refer to toileting and continence checks, I am not persuaded that record keeping amounted to fault.
63. I have found one occasion (on 20 December) that Mr Y had “soiled himself”. That happened when staff tried to assist him to the toilet. I understand that would have been distressing for Mr Y. However, I am not persuaded that happened due to a lack of support from the Home. Staff were clearly trying to help Mr Y get to the toilet, but he did not make it in time. The Home recorded it cleaned Mr Y and returned him to bed. That was good practice.
64. I do not doubt Mrs X versions of events as she remembers them. However, considering the records from the time, I am persuaded the Home provided continence care in line with Regulation 10 of the Fundamental Standards.

Suicidal comments

65. Mrs X says staff at the Home did not always record Mr Y’s suicidal comments.
66. In response to Mrs X’s complaints:
• The Home said there was little evidence Mr Y made suicidal comments to staff, apart from one occasion he said he wanted to die.
• The Council said Mr Y’s risk of suicide was incorporated into his Behaviour Support Plan in April 2023. Since Mrs X raised that issue, the Home has taken it more seriously. It seemed as if Mr Y was making suicidal comments to family, rather than Home staff.
67. I have only considered events up to March 2023, in line with the scope of my investigation.
68. I have reviewed the Home’s Behavioural Care Plan. On 13 November 2022, the Home wrote: “[Mr Y] needs to have his behaviours monitored as he expresses suicidal intent…”. The Home agreed to carry out 15-minute observations of Mr Y and refer him to appropriate services if necessary.
69. On 18 November 2022, the Home noted Mr Y was “shouting down his phone at his daughter telling her he was going to kill himself”. It referred him to the NHS Crisis Team, which led to the Community Mental Health Team visiting Mr Y and developing the Behaviour Support Plan.
70. The Home recorded Mr Y’s suicidal behaviour in two separate forms. It would have been better practice for the Home to record Mr Y’s behaviour in one single form. However, I do not consider that fell so far below the relevant standards to amount to fault.
71. I have not found any evidence the Home recorded Mr Y talking about suicide, apart from the one occasion on 18 November 2022 (in the Social Interactions Care Plan). Rather, the Home recorded times when Mr Y displayed verbal or physical aggression. I consider that, on the balance of probabilities, the Home and Council are correct in that Mr Y made suicidal comments to the family rather than directly to staff. Therefore, I do not agree the Home did not record references to suicide. Rather, the Home’s Professional Visit Record showed it worked collaboratively with the CMHT, considered their advice and helped develop Mr Y’s Behaviour Support Plan.
72. Mrs X says the Home did not support Mr Y in line with the guidance set out in the Behavioural Support Plan. I have not considered this point because it falls outside the timeframe of my investigation.

Record keeping

73. Mrs X says the Home’s poor record keeping meant the ICB’s CHC Team could not carry out a review of Mr Y’s needs. That meant the Home had to retrospectively create notes about Mr Y.
74. In response to Mrs X’s complaints, the Home accepted Mrs X’s frustration it was not ready for that first CHC meeting and had learnt lessons.
75. The Home told me it has reminded staff of the importance of completing all relevant documents for residents in line with the Fundamental Standards. When the Home receives any meeting request, it records the date and time, and thoroughly checks the paperwork needed beforehand.
76. I agree the Home’s record keeping before the first CHC meeting was not in line with Regulation 17 of the Fundamental Standards. That was clearly frustrating for Mrs X. I am satisfied the Home has accepted that fault, apologised and taken steps to reduce the chance of that happening to others. Therefore, I will not take any further action with this part of her complaint.

Communication around wandering residents

77. Mrs X says another resident wandered into Mr Y’s room and got into bed with him. Mr Y then attacked the man and threatened to stab him in his sleep. Mrs X says the Home never told her what action it took to stop that from happening again.
78. In response to Mrs X’s complaints:
• The Home said it had completed a safeguarding investigation and there would be no further action.
• The Council said the Home recognised it should have communicated the outcome of the safeguarding investigation to Mrs X. But it was difficult for the Home to manage the residents on that floor.
79. I understand the Home’s view that Mr Y had capacity to decide if he would like the door open or closed. However, from the Daily Records there were multiple occasions when residents wandered into his room. Considering Mr Y’s behavioural issues and fluctuating capacity, the Home’s decision to keep the door open posed a significant risk to him. Mr Y was a vulnerable adult also.
80. Following the safeguarding investigation, I consider the Home missed an opportunity to review Mr Y’s capacity to decide to keep his door open. From the Home’s evidence, I cannot see it did that, which was fault. The Home needed to set out the risks and benefits to Mr Y by keeping his door open. It is unclear if Mr Y could make that decision and weigh up those risks. I cannot say, even on the balance of probabilities, what the outcome of any mental capacity assessment would have been. That leaves Mrs X uncertain if the Home would have provided any different support following that review. I have made a recommendation to the Home to remedy that injustice to them.

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Agreed actions

81. Within four weeks of this decision:
• The Council and Care Provider (as owner of the Home) should each apologise to Mrs X for the uncertainty it caused by not assessing Mr Y’s capacity to safely support himself between November 2022 and January 2023.
• The Council should apologise to Mrs X for uncertainty caused by not reviewing Mr Y’s Mobility Care Plan after November 2022.
• The Council should apologise to Mrs X for the frustration caused by its fault reviewing Mr Y for 15-minute observations in 2023.
• The Care Provider should apologise to Mrs X for the uncertainty caused by not reviewing Mr Y’s capacity to decide to keep his door open.
• The Care Provider should apologise to Mrs X for the frustration it caused her from its poor record keeping around falls and professional visits.
• The Council and Care Provider should each pay Mrs X £400 and £500 respectively to recognise the faults above.
82. Within eight weeks of this decision:
• The Care Provider should ensure Home staff are aware of their responsibility to:
1. Record all falls and professional visits to residents.
2. Carry out and review residents’ capacity around their support needs on admission, when it is clear residents cannot make decisions around their care and support needs.
• The Council should ensure relevant staff are aware of their responsibilities when considering requests for increased support for service users.
• The Care Provider should carry out a review of Mr Y’s capacity to decide to keep his door open, considering the risks posed to his welfare. If it has done so already, it should provide a copy of that assessment to the Ombudsmen.
83. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

84. Four Seasons Health Care and Sunderland City Council missed an opportunity to consider further support to reduce the risk of Mr Y falling. Four Seasons’ record keeping was generally not in line with the relevant guidance. It should also have considered Mr Y’s welfare when residents wandered into his room. Those faults caused Mr Y and Mrs X an injustice which the organisations have agreed to remedy.

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Investigator's decision on behalf of the Ombudsman