Summary: The Ombudsmen found no fault by a Council, a CCG and a care home in relation to the nutritional support and personal care provided to Mrs Y. We have found fault with how nutritional risk was assessed, but this did not affect the care provided and the care home has now remedied this by making changes with how it completes nutritional risk assessments.

The complaint

1. Mrs X complains about Lynwood Care Home (the Home), Brighton & Hove City Council (the Council) and NHS Brighton and Hove Clinical Commissioning Group (the CCG). In particular Mrs X complains about the Home’s failure to provide adequate care and support for her sister, Mrs Y in April 2020. There was a national lockdown in place due to the COVID-19 pandemic. Mrs X says the Home:
• failed to provide adequate nutritional support for her sister;
• neglected her sister’s personal care needs; and
• did not seek medical help when her sister’s condition deteriorated.
2. Mrs X says when she visited her sister a few weeks later, she was emaciated, unkempt and her hair was matted so badly it had to be cut off. Mrs X considers the Home’s failings in the care it provided contributed to her sister’s death. She says this has also caused her family considerable distress having to witness the events.

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The Ombudsmen’s role and powers

3. 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).
4. 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.
5. 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.
6. 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

7. I read the correspondence and supporting evidence Mrs X sent to the Ombudsmen and I spoke to her on the telephone. I wrote to each of the organisations to explain what I intended to investigate and to ask for their comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
8. Mrs X and the organisations involved had an opportunity to comment on a draft decision statement. I considered these comments before reaching my final decision.

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What I found

Legal and administrative context

Mental Health Act

9. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
10. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
11. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.

Mental Capacity

12. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Mental Capacity Act Code of Practice (the MCA Code) describe 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 and how to do this.
13. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. A person should not be treated as unable to make a decision:
• because he or she makes 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.

Fundamental Standards of Care

14. 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.
15. The guidance says:
• Providers should regularly review nutrition and hydration needs and any changes in people’s needs should be responded to in good time.
• Providers must follow people’s consent wishes if they refuse nutrition and hydration unless a best interests decision has been made under the MCA.
• Staff should know how to determine whether specialist nutritional advice is required and how to access and follow it.
• Snacks or other food should be available between meals for those who prefer to eat ‘little and often’.
• Providers must take appropriate action if there is a clinical or medical emergency.

Nutritional support

16. The National Institute for Health and Care Excellence (NICE) has issued guidance for Nutritional support for adults (clinical guideline 32). This guidance covers identifying and caring for adults who are malnourished or at risk of malnutrition in hospital, in their own home, or in a care home.
17. The guidance says screening should assess body mass index (BMI) and unintentional weight loss. It should also consider the time over which nutrient intake has been unintentionally reduced and/or the likelihood of future impaired nutrient intake. The guidance says a Malnutrition Universal Screening Tool (MUST) may be used to do this.
18. The MUST is a five-step screening tool to identify adults who are malnourished or at risk of malnutrition and includes guidelines for developing a care plan. It provides scores based on BMI, unplanned weight loss and the effect of any acute disease. The MUST can be used by all care workers.
19. The weight loss section of the MUST states that unplanned weight loss of 5-10% in the last 3-6 months would score 1. Unplanned weight loss of more than 10% in the past 3-6 months would score 2.
20. Overall must MUST scores of 0 are categorised as ‘low risk’ of malnutrition. A score of 1 is ‘medium risk’ and a score of 2 or more would be ‘high risk’
21. If someone ‘medium risk’, the guidance is to observe. This includes documenting dietary intake for three days to see if there is an improvement. For those considered ‘high risk’ the guidance is to actively treat. This could include referral for nutritional support with a view to improve and increase nutritional intake and increased monitoring. The Home’s policy at the time of the events complained about was to seek assistance through the GP.

Background

22. In 2018 Mrs Y was struggling with her mental health. She was not eating or drinking well and neglected herself and her home. In October 2018, she was detained under section 3 of the MHA.
23. Following her hospital admission, Mrs Y lived in a care home. Her accommodation was funded as part of her section 117 aftercare. She was subsequently diagnosed with Multiple Sclerosis (a condition affecting the brain and spinal cord).
24. Mrs Y’s family did not live close to her care home placement, so in May 2019 she moved to the Home, which was in the same area her family lived. Her family visited and saw her regularly up until March 2020 when a national lockdown was put in place due to the COVID-19 pandemic. Mrs Y’s family stayed in contact with her and the Home’s staff, but they could no longer visit.
25. Mrs X’s care and support plan, which started while she was in hospital under the MHA, records her need for support with managing and maintaining nutrition. Her care plan at the Home also identified nutritional needs. The care plan set out that the Home should “encourage and support [Mrs Y] to make choices that will provide a balanced and nutritious diet”. It also noted that staff should monitor her intake and take action to manage this if they note a loss of appetite. The care plan states Mrs Y’s weight should be monitored monthly.
26. In March 2020, the records show Mrs Y had lost around 6kg since January 2020. The Home recorded Mrs Y’s nutritional intake. She was eating and drinking until mid-April when it noted that she was refusing some meals.
27. The Home contacted Mrs Y’s GP on 17 April to ask for advice about her nutritional intake and weight loss. The GP advised the Home to provide more snacks and milkshakes and explore if there were other foods she liked. The records show the Home monitored Mrs Y’s dietary intake and encouraged her to eat and drink. Mrs Y was eating small amounts of food and drink and a GP review a few days later recorded Mrs Y was “stable” and noted no new concerns.
28. The following week the records show Mrs Y was sick and she had been refusing food, including homemade food Mrs X had brought in. The Home weighed Mrs Y again on 24 April and she had lost another 6kg. Her BMI was 21.1. The records indicate Mrs Y’s GP saw her by video call the same day.
29. The following day the Home discussed the plan to encourage Mrs Y to increase her nutritional intake with Mrs Y’s brother. The Home explained that if this did not work, they would ask the GP for nutritional supplements.
30. On 26 April the records show Mrs Y had not eaten for three days. She continued to refuse food and medication. The GP reviewed Mrs Y again on 28 April and advised the Home to continue monitoring her.
31. The records show Mrs Y had some energy drink and water over the following day, but she was also vomiting and sleepy.
32. As Mrs Y was not improving, on 30 April the Home sought permission to allow Mrs X to visit. This would not have normally been allowed because of national COVID‑19 restrictions that were in place. The Home hoped Mrs X may manage to persuade Mrs Y to eat and accept personal care.
33. Mrs X visited later that day and managed to shower Mrs Y. However, she was still refusing care and food. The Home agreed with Mrs X that they should call an ambulance to take Mrs Y to hospital.
34. The Home spoke to the Hospital the following day. The hospital said Mrs Y had been rehydrated and her blood counts were now normal. It told the Home Mrs Y was medically fit, but it would wait for her to start eating and drinking, and consult with a psychiatrist before discharging her.
35. Mrs Y remained in hospital but sadly she died just over a week later.

Analysis

Nutritional support and seeking medical help

36. The records show the Home recorded all the food and fluid given to Mrs Y and whether she ate this. In the month before she was hospitalised, the records show the Home staff offered Mrs Y food and regularly encouraged her to eat and drink. This was in line with her care plan.
37. The Home used a MUST to help monitor Mrs Y’s risk of malnutrition, which is in line with NICE guidance. However, there were issues with how the Home completed this.
38. When the Home weighed Mrs Y in March 2020, it recorded the MUST category as ‘low risk’. However, Mrs Y’s weight loss since January 2020 should have meant the Home categorised her as ‘medium risk’ of malnutrition.
39. Mrs Y’s next weight monitoring in April 2020 showed Mrs Y had lost more weight. The MUST should have shown her as ‘high risk’ of malnutrition. However, the Home also recorded this as ‘low risk’. There is therefore fault by the Home in incorrectly categorising the risk from using the MUST.
40. I have considered the impact of the fault on Mrs Y. If the Home had recorded the MUST score correctly, the guidance would have been to observe Mrs Y. If there was no improvement, a referral for nutritional support with the aim to improve and increase nutritional intake should be considered. A monthly review of care plans should also take place.
41. The records show the Home took the actions set out in the guidance despite recording the MUST risk rating wrongly. When Mrs Y should have been ‘medium risk’ on the MUST, the Home recorded her nutritional intake daily and its staff gave Mrs Y regular encouragement to eat and drink. Mrs Y did eat some smaller amounts of food, but her overall nutritional intake was still poor.
42. At the point the Home should have noted Mrs Y as ‘high risk’, the Home sought advice from Mrs Y’s GP. The GP provided advice to increase snacks and continue to monitor Mrs Y. There was regular contact with the GP and the records show the Home followed the advice by trying to identify food Mrs Y liked and giving her food brought in by her family.
43. It is evident from the records that Mrs Y’s nutritional intake decreased more noticeably in the week before she went to hospital. The Home then sought further advice from the GP, who advised to continue monitoring Mrs Y.
44. The following day the Home recorded that Mrs Y was now vomiting and refusing to eat and drink. This did not improve overnight and the Home asked Mrs X to come in to see if she could help encourage Mrs Y with eating and personal care. During Mrs X’s visit the Home staff agreed with her they should call an ambulance to take Mrs Y to hospital.
45. I do not consider the wrong MUST scores had a significant effect on how the Home provided care to Mrs Y. Its actions were broadly in line with the MUST guidance. The decision to seek medical assistance is a professional judgement. At the time of these events restrictions were in place due to COVID-19 and hospital admissions were limited to emergencies. With hindsight the Home may have considered a slightly earlier hospital admission, but the staff did not consider it was a medical emergency. The records support this view.
46. Based on the evidence I have seen in the records, the Home considered Mrs Y’s presentation carefully and took appropriate actions when needed. When the Home considered the situation a medical emergency, it arranged hospital admission for Mrs Y. I therefore do not consider there was fault in the Home’s actions in its nutritional support for Mrs Y or in not arranging an earlier hospital admission.
47. In the Home’s submission to the Ombudsmen, it accepted there was fault with its MUST risk ratings. It explained this was because a software error meant anyone with a BMI within the ‘normal’ range (21-25) automatically rated as ‘low risk’ of malnutrition. It is reviewing its computer software to address this problem. It has also said it has trained staff to directly refer to a dietician rather than going via the GP. Given the Home effectively followed the MUST guidance despite the risk rating it recorded, I consider this is an appropriate and proportionate outcome to this issue.

Personal care

48. The records show staff at the Home offered to provide personal care to Mrs Y on most days but she often declined this. Under the Mental Capacity Act an individual is presumed to have mental capacity, even if the decisions they make may appear unwise. The Home did not have concerns about Mrs Y’s mental capacity to understand and make decisions about her personal care. It was therefore her decision whether to accept help with personal care or not.
49. As noted above, the records show Mrs Y’s condition declined in the week before her hospital admission. She spent much of her time in bed and was ill with vomiting. The Home’s staff could not force Mrs Y to accept personal care, but it is evident they did keep offering and trying to encourage her to accept help. After a few days of Mrs Y not accepting personal care when she was ill, the Home asked Mrs X to visit. This was to try to encourage Mrs Y to accept help with personal care, even though the national lockdown would have normally have prevented this.
50. It is clear Mrs Y was in poor condition and when Mrs X saw her on 30 April. I recognise this must have been a shock for Mrs X after not having seen Mrs Y for a while. However, the Home was limited to what it could do to help Mrs Y because she chose to refuse personal care when its staff offered to help. This was her right. I have therefore not found fault in the personal care provided by the Home.
51. Mrs X says staff at the Home asked her to cut off Mrs Y’s hair as it was so badly matted. In the Home’s submission to the Ombudsmen it said its staff did not ask Mrs X to cut her sister’s hair. It said Mrs X asked staff for scissors so she could cut it. Complaints based on verbal discussions can be subjective and often difficult to resolve. In this case there are two conflicting accounts, but no additional evidence to support either recollection.
52. I understand this must have been an emotional time for Mrs X and for whatever reason, to feel she had to cut off her sister’s hair must have been upsetting. However, based on the evidence available I cannot say the Home’s staff suggested this. I have therefore not found fault in this regard.

Summary

53. It is understandable why Mrs X considers Mrs Y was neglected in the Home given how she found her on 30 April. However, the records do not support that there was fault by the Council and CCG with the help and encouragement the Home provided to Mrs Y with her nutritional and personal care needs. Mrs Y’s account and the records both make it clear the Home did not meet Mrs Y’s personal needs. Unfortunately this was because Mrs Y did not accept much the support offered. Despite involving Mrs Y’s family to help encourage her with eating, unfortunately her health continued to decline.
54. The Home sought clinical help when Mrs Y continued to lose weight and, with her family, arranged for Mrs Y’s hospital admission when it became clear she needed more urgent medical assistance.
55. There was fault by the Council, the CCG and the Home with the Home’s use of the MUST. However, the Home has already addressed these failings, which should prevent future errors. More importantly, while the Home recorded Mrs Y’s MUST scores wrongly, it still followed the relevant guidance for nutritional support. The fault did not therefore cause an injustice.

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Final decision

56. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman