Summary: Mr D complained about the actions of a Care Provider, Trust and Council when they dealt with contact the Care Provider initiated with his late mother without consent when she was in an intermediate care unit. There was fault by the Care Provider and the Trust, but they acted to improve. It is unlikely the Ombudsmen could add to the previous investigations already completed by the authorities complained about. In addition, the Ombudsmen cannot achieve the outcome the complainant wants. For these reasons the Ombudsmen should not investigate this complaint.

The complaint

1. The complainant, who I shall refer to as Mr D, complains about the actions of Roselands Residential Home Limited (the Care Provider) in October 2019 when it approached his late mother, Mrs B, to make an introduction while she was a respite patient in an intermediate care unit run by the Pennine Acute Hospitals NHS Trust (the Trust). Mr D says the home breached professional standards and data protection rules. He also says Oldham Metropolitan Council (the Council) and the Trust failed to properly deal with the incident and the Council focussed more on safeguarding concerns despite not instigating an investigation.
2. Mr D claims his mother experienced avoidable distress and the family experienced inconvenience and outrage because of the alleged faults. He is seeking a financial remedy.

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The Ombudsmen’s role and powers

3. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
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)).
5. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

it is unlikely they could add to any previous investigation by the bodies, or

they cannot achieve the outcome someone wants. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I have considered information provided by Mr D and all the bodies complained about. I have also considered the law and guidance relevant to this complaint.

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What I found

7. Mrs B went into hospital in August 2019 after she fell at home. She was discharged from hospital with a care package in place but continued to experience falls. In September she went to stay in an enhanced intermediate care unit run by the Trust for short-stay respite and rehabilitation. The initial plan was for her to return home after the respite stay.
8. Mr D acted as Mrs B’s deputy in line with the Lasting Power of Attorney which was in place for health and welfare and property and financial affairs. Mr D said he and Mrs B had discussions with the Trust’s staff in the unit and it was felt it would be in her best interests to move to a care home. Mr D said he and his family did not use the words ‘care home’ when discussing care arrangements with Mrs B. He said they preferred to refer to ‘a place where you will be safe and looked after’.
9. Mr D said he considered several homes one of which was Roselands Residential Home. He and his daughter went to visit this potential placement in early October and met a member of staff. At the time the Home did not have any vacancies.
   Mr D said he gave the staff member his contact details as well as confirming that Mrs B was staying in the intermediate care unit awaiting discharge.
10. Mr D said following the visit to Roselands Residential Home the family decided another residential home would be more suitable for Mrs B. Mr D and his daughter arranged a meeting with the manager of this prospective home to discuss further with Mrs B.
11. On 11 October Mr D’s daughter went to visit Mrs B. During the visit Mr D said his mother told her granddaughter she had been visited by two people from a care home. Another person remembered the care home was called Roselands. Mr D’s daughter spoke to the Trust’s staff who confirmed the Care Provider’s staff had spoken to Mrs B but did not complete an assessment.
12. Mr D spoke to the Care Provider later the same day by telephone. The Care Provider confirmed the visit had taken place informally following a pre-arranged visit to assess someone else in the unit. Mr D said the member of staff was apologetic, but he told her she did not have the family’s permission to speak to Mrs B and the Care Provider had done so without any authority. Mr D told the Care Provider he would be contacting the Council and the Trust to report the incident.
13. The Trust completed an investigation into the incident. It found that its staff member had been present when the Care Provider spoke to Mrs B. It also found the Care Provider’s staff did not have identification when asked to produce it. To improve it highlighted to its staff the importance of confirming visitors to the intermediate care unit. Staff were reminded to confirm the reason for visit with visitors and check identification. It also spoke to the social care team and agreed that visits by care providers to complete assessments with patients would need to be booked via the on-site social worker to include family as necessary.
14. The Council received a safeguarding referral but did not initiate a safeguarding investigation. It expected the Care Provider to investigate the matter as a quality issue.
15. Mr D also wrote to the CCG responsible for the area where the Trust operated. The CCG said it could not consider a complaint because the Trust had already responded.
16. In response to Mr D’s complaint the Care Provider wrote to him in November with a report detailing how the incident had occurred and what it had done in response to his concerns. The Care Provider said when its staff met with Mrs B the discussion was a brief introduction and there was no evidence to suggest any additional personal or medical information was obtained from Mrs B.
17. The Care Provider said it had made improvements and implemented a set of protocols for its staff to use. Lessons learnt included:
• Appointments to assess or brief introductions should always be pre-arranged in advance;
• Next of kin and family members should be contacted where possible, to gain their consent before any informal introduction takes place;
• Staff to liaise with family members regarding the clients understanding of where and when they are going to receive care in the future; and
• Staff to ensure that legal documentation such as “Lasting Power of Attorney” is requested to clearly evidence and demonstrate that family members have legal authority to make decisions on behalf of their relatives.
18. The Council wrote to Mr D in January 2020. It said “based on the incident and the responses [the Care Provider] has provided, there is nothing further the Local Authority could add or do as there are no outstanding safeguarding concerns and suitable measures have been put in place by the home.” Mr D then complained to the Local Government and Social Care Ombudsman.

Findings

19. Mr D was right to raise his concerns with the Care Provider when he learnt its staff had approached his mother without making anyone aware it would be doing so. At this time Mr D had only made enquiries about possibly placing his mother in the home but he and his family were also considering other options.
20. The information provided suggests the discussion the Care Provider had with
    Mrs B was not prolonged. Nevertheless, it is understandable why Mr D and other family members felt aggrieved by the direct contact the Care Provider had with his mother. This was at a time when Mrs B’s family were trying to manage her concerns and feelings about going into a care home. Mrs B was confused by the contact the Care Provider initiated with her.
21. The Council did not initiate a safeguarding investigation as set out in the
    Care Act 2014. This says a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. Instead the Council asked the Care Provider to investigate the matter as a quality issue which it did.
22. Mr D did not ask the Care Provider to approach his mother and as her deputy there was an expectation he should have been contacted before an approach or introduction was made. Although not explicit in its letter to Mr D, the
    Care Provider acknowledged brief introductions should be made by appointment and family members should be contacted where possible.
23. The Trust also acknowledged fault in the way it dealt with the matter. It was unlikely the Care Provider could have approached Mrs B without being accompanied by the Trust’s staff as the Care Provider had never met Mrs B. The Trust improved the way it dealt with visitors to the unit. It also reminded its staff of good practice to promote safeguarding.
24. The improvements made by the Trust and the Care Provider was likely to prevent similar type of fault occurring in future. The Care Provider apologised to Mr D on the telephone. A further written apology was provided weeks later. Mr D says this is not enough and said the faults had adverse impact on his mother and the rest of the family. Because of this he seeks a different outcome than the one already provided by the Trust and the Care Provider.
25. There was fault by the Trust and the Care Provider as identified by their investigations hence the improvements made. It is unlikely the Ombudsmen can add to the previous investigations already undertaken by the authorities complained about. In addition, the Ombudsmen cannot achieve the outcome of a financial remedy Mr D seeks. For these reasons the Ombudsmen should not investigate this complaint.

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Final decision

26. The Ombudsmen cannot add to the previous investigation already completed by the authorities complained about. The Ombudsmen cannot achieve the outcome Mr D wants. I have closed the complaint.

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Investigator's decision on behalf of the Ombudsman