Summary: Mrs C complained about the alleged failure of a Care Provider and a GP Surgery to communicate with her about her late mother’s health and personal welfare when her mother did not have capacity to make specific decisions. We found the Care Provider and the GP Surgery had information to show Mrs C was her mother’s attorney for health and personal welfare. We found they both failed to communicate with her and involve her in best interests decisions when it was likely her mother lacked capacity to make specific decisions. The Care Provider and the GP Surgery have agreed to our recommendations and will apologise to Mrs C and make a symbolic payment to recognise the injustice caused. The organisations previously acted to improve when dealing with Mrs C’s complaint.

The complaint

1. The complainant, who I shall refer to as Mrs C, complains about the failure by Oak Tree Nursing Home run by Healthcare Homes (LSC) Limited (the Care Provider) and Kennedy Way Surgery (the Surgery) to communicate with her about her late mother’s, Mrs F, health and personal welfare when she did not have capacity to make specific decisions. Mrs C says the Surgery should have told the Care Provider she was her mother’s attorney for health and welfare as noted in the Surgery’s records.
2. Mrs C says she lost the opportunity to be involved in important decisions about her mother’s care and support arrangements including medication, personal care financial matters. She also says the alleged faults empowered a family member to act on behalf of her mother without any proper authority. She said this meant she was not informed when her mother had died or involved in her funeral arrangements. She feels she lost out on attending her mother’s funeral and could not alert authorities to potential financial abuse. She feels the home deliberately gave her false information relating to the day of her mother’s death. Mrs C says this caused her avoidable distress and wants the organisations to learn lessons.

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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. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
4. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
5. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services. We use the word ‘fault’ to refer to these. If there has been fault, the Health Service Ombudsman considers whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1))
6. If the actions of a health and social care provider have caused injustice, the Ombudsmen 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.
7. The Ombudsmen 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. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. 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.
9. 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

10. I have considered:
• information provided by the complainant in writing and by telephone;
• information provided by the Care Provider and the Surgery in response to my enquiries; and
• the law and good practice guidance relevant to this complaint.
11. All parties had an opportunity to respond to a draft of this decision. I considered the responses received before making a final decision.
12. Under our information sharing agreement, we will share this decision with the Care Quality Commission.

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What I found

The law and guidance relevant to this complaint

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
15. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
16. There are two types of LPA.
• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
17. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
18. Paragraphs 71 to 72 of the General Medical Council’s ‘Good Medical Practice’ (2013) relate to the issue of mental capacity. It says doctors must take account of the MCA and the Code. Point 16 of the Nursing and Midwifery Council’s The Code: Standards of conduct, performance and ethics for nurses and midwives (2008) is also relevant. This says that nurses must be aware of the legislation about mental capacity.
19. The Office of the Public Guardian (OPG) produced a guidance document (OPG603): Mental Capacity Act - Making decisions: A guide for people who work in health and social care (2009) (the ‘Making decisions guidance’). This provides health and social care professionals with an overview of the MCA and guidance on how they should use it. It highlights the presumption of capacity and, in section two, that considerations of capacity are time and decision specific.
20. There is no medical diagnosis that automatically means someone lacks capacity. Section two of the Making Decisions Guidance notes that a lack of mental capacity could be due to, for example, dementia. However, section four states that professionals cannot assume a person cannot make a decision for themselves just because they have a particular medical condition.
21. The OPG also produced a guidance document (LP10) ‘Getting started as an attorney: health and welfare’. The guidance was updated in September 2018 and provides information to individuals on how to be an attorney.
22. 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.

Background

23. Mrs F previously lived with Mrs C in her home. Mrs F had capacity to make decisions but had signed LPA documentation in 2018 which named Mrs C as her LPA for health and personal welfare. The LPA was registered with the OPG in February 2019.
24. Mrs F was admitted to hospital in 2019 following a fall at home. She was discharged from hospital in April 2019 and moved to the Care Provider’s nursing home. The Care Provider complete a pre-admission assessment to determine it could meet Mrs F’s needs. Mrs C was not involved in the assessment because she said there had been breakdown in the relationship she had with her mother.
25. Mrs F had capacity to make specific decisions when she was admitted to the nursing home. When completing documentation with the Care Provider she named a different family member, Mr X, as her next of kin and as the person she wanted the Care Provider to contact and share information with. The Care Provider said Mrs F had stated she did not want Mrs C involved in her care and support arrangements.
26. Mrs F became a patient of the Surgery in July 2020. It said it had registered
    about 30 patients from the nursing home at this time. This was due to a change in the way GP care was delivered to nursing homes. In this case all the residents in the Care Provider’s nursing home were allocated to the Surgery. The Care Provider gave the Surgery information it held about residents as part of this process. In Mrs F’s case the Surgery noted Mr X as Mrs F’s next of kin and the point of contact based on the information from the Care Provider.
27. Mrs F remained in the nursing home as a private funder until November 2020 when she became eligible for healthcare funding due to deterioration in her health. She passed away on 19 November 2020 while in the nursing home.
28. Mrs C later complained to the Care Provider and the Surgery about several matters related to Mrs F care and support arrangements. In particular she felt both organisations should have consulted with her as her mother’s attorney when it was likely Mrs F had lost capacity to make specific decisions and she was nearing the end of her life.

Findings

The way the Care Provider and the Surgery considered Mrs C’s status as LPA

29. The Care Provider said it did not have any information to indicate Mrs C was
    Mrs F’s LPA when she was admitted to its nursing home. The evidence available suggests Mrs C’s relationship with her mother was strained at the time. As such Mrs F made a capacitated decision to name Mr X as her next of kin and the person she wanted the Care Provider to contact to provide updates about her care and support.
30. The Care Provider said Mrs C did not visit Mrs F in the home during the time she was a resident. This was likely due to the status of their relationship and likely because of Mrs C’s respect for her mother’s choices. Therefore, it said Mrs C did not provide any information to it directly when Mrs F first went into the nursing home. I do not find fault in the way the Care Provider initially decided to record Mrs F’s point of contact as Mr X.
31. The Care Provider accepts Mrs C or her representative contacted the then registered manager around June 2020 by email. Mrs C asked the registered manager to place her contact details on Mrs F’s file for future reference. When Mrs C complained to the Care Provider she said she had told the previous registered manager her status as LPA. I have not seen evidence to suggest this was not the case. The registered manager agreed to discuss this with staff and place Mrs C’s details on file. The evidence available shows this did not happen. This is fault.
32. This was a missed opportunity for the Care Provider to review the contact arrangements it has initially agreed with Mrs F directly with her presuming she had capacity to make the specific decision. I cannot say what the outcome of the review would have been or if Mrs F would have changed the contact arrangements. However, if the home manager had recorded Mrs C’s contact details as agreed this would likely, on balance, have prompted the Care Provider to contact Mrs C when Mrs F lacked capacity to make decisions.
33. Mrs F’s health had deteriorated to the point she became eligible for healthcare funding. As LPA Mrs C should have been involved in this process. The healthcare funding decision was made around the time when Mrs F was nearing the end of her life. This likely to cause Mrs C to experience doubt and uncertainty about how much time she could have been involved in her mother’s final days.
34. When responding to our enquiries the Care Provider confirmed it has improved. All services have been advised to place any evidence related to residents in their care records. Any sensitive information should be placed in an evidence folder in the manager’s officer for future reference. It is therefore not necessary to recommend an additional service improvement.
35. The Surgery said it used the information obtained from the Care Provider to record Mrs F’s preferred point of contact. When investigating Mrs C’s complaint it discovered it did have a copy of the LPA within its files from around April 2019.
36. When Mrs F became the Surgery’s patient in June 2020 the process it followed included asking the nursing home for relevant medical and contact information. The Surgery’s doctors also checked the patient’s summary notes held on its electronic recording system. In response to our enquiries the Surgery confirmed the main summary sheet its doctors look at when receiving new patients does not record when a patient might have an LPA In place.
37. When responding to Mrs C’s complaint the Surgery accepted fault for this oversight and apologised to her. If the Surgery had noted the LPA from the date Mrs F became a patient, I cannot say whether this would have led to Mrs C being more involved in her medical care arrangements when Mrs F had capacity to make specific decisions. It is likely the situation would have been different once Mrs F lost capacity to make specific decisions.
38. When responding to Mrs C’s complaint about why her mother was given a flu vaccination when she had previously refused this the Surgery said it had consulted with Mr X (and the Council). There is no evidence to show Mr X had legal authority to make decisions on Mrs F’s behalf when she lacked capacity. In this event it is likely the Surgery would have consulted with Mrs C if her status as LPA had been recognised. Mrs C is likely to experience frustration because of the fault.
39. The Surgery has since taken action to improve and has put a check in place so patients or their representatives confirm contact arrangements. It now has care coordinators who review these details to ensure the checklist is up to date. The Surgery said it aims to find out if there are any estranged relatives who might be closely related to the resident/patient. It is therefore not necessary to recommend a further service improvement.
40. The Surgery has also changed its processes regarding consent. It has developed new consent forms which can be used when a person has capacity to consent and when a person lacks capacity. The new forms records whether a patient has an LPA in place or whether a best interests decision is made. The Surgery also undertakes spot checks to monitor whether the correct form is being used for patients. This is an improvement which should assure Mrs C the Surgery has learnt from the complaint surrounding her mother’s case. It is therefore not necessary to recommend a further service improvement. Nevertheless, it is likely Mrs C may continue to experience uncertainty and doubt because of the fault by the Surgery.
41. Mrs F had made a capacitated decision to name Mr X as her next of kin and point of contact when she first went into the Care Provider’s home. She did not change this decision when the Surgery became involved. It is likely Mrs F was aware of the LPA document she had signed which named Mrs C as her attorney. There is no evidence to show she changed the LPA or evidence to show she intended to revoke Mrs C as her attorney before losing her capacity to make decisions. Therefore, it is likely Mrs F would have been aware Mrs C would be her attorney in the event she lacked capacity to make specific decisions about her health and welfare even if she had named Mr X as a point of contact.
42. As her mother LPA for health and personal welfare Mrs C had a responsibility to let others know they must contact her if Mrs F could not make decisions. It appears Mrs C did do this as the Surgery had a copy of the LPA within its records but did not check this. Mrs C had also contacted the Care Provider and shared her contact details and likely her status as LPA with the manager in post at the time. The manager did not pass on this information to any other staff. I appreciate there may have been family dynamics the Care Provider and the Surgery had to consider but this did not change Mrs C status as her mother’s LPA.
43. Were if not for the faults identified it is more likely than not, on balance, Mrs C would have been more involved with best interests decisions relating to her mother’s health and personal welfare. Faults by the Care Provider and the Surgery are likely to cause Mrs C to experience distress as well as the uncertainty previously referred to.

Other complaint issues Mrs C raised about the Care Provider and the Surgery

44. When Mrs C complained to the Care Provider and the Surgery she raised several issues relating to Mrs F’s care and support such as medication, incidents in the home, personal care and financial matters. Some of the complaints she referenced spanned a period when Mrs F had capacity to make decisions and when she did not.
45. When responding to Mrs C’s complaint the Care Provider told her its findings following its investigation about who was present when her mother died. In response to our enquiries the Care Provider said the night nurse in duty was with Mrs F when she died in the early hours of 19 November 2020. The following day the day nurse contacted the Surgery in line with the Care Provider’s procedures. It is unlikely further investigation by the Ombudsmen could come to a different view.
46. Similarly, the Care Provider’s investigation did not identify any errors with medication. Having reviewed the documents provided in response to our investigation it is unlikely we would find fault by further investigating this matter.
47. The Care Provider accepted Mrs F’s care plan should have been more detailed to reflect Mrs F’s needs and presentation at the time. This is fault. Any potential injustice caused by this fault would have been caused to Mrs F. As she has died, we cannot remedy any injustice after her death. The Care Provider has since acted to review all residents care plans monthly with management oversight. This aims to ensure a more accurate reflection of residents needs and presentation while maintaining safety. It is therefore not necessary to recommend an additional service improvement.
48. The evidence available shows the Surgery communicated with the Care Provider when Mrs F was nearing the end of her life. 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 the Surgery had to make. The Surgery’s doctors used their clinical judgement when making decisions about Mrs F’s health and when deciding on medication. Therefore, focussing on the way the Surgery made its decision regarding medication I have not found evidence of fault.
49. The Care Provider and the Surgery provided Mrs C with detailed responses to her complaint and additional documents she requested after her mother had died. After reviewing these responses, it is unlikely further investigation by the Ombudsmen into these matters could add much more to the responses Mrs C has already received from the organisations.

Mrs C’s status as Mrs F’s attorney after she had passed away

50. Mrs C says were it not for the faults she would have been more involved in decisions made after her mother had died. She referred to funeral arrangements and also concerns she had about the way Mr X handled Mrs F’s finances.
51. Mrs C says her mother did not have an LPA in place for her property and financial affairs. It is likely Mrs F had consented to Mr X handling some of her financial affairs when she had capacity. If Mrs C had concerns about this during the period when Mrs F was resident in the home, she could have reported her concerns to the relevant council’s safeguarding team or the OPG. It is reasonable to expect Mrs C to have known this given her LPA status and the likely previous knowledge of her mother’s financial affairs when she lived with her.
52. The evidence available suggests Mrs C and Mr X did not communicate due to family dynamics and what appears to be breakdown in family relationships. This situation did not arise because of the actions of the Care Provider and the Surgery. It was Mrs F who had consented to Mr X acting on her behalf when she had capacity to make this decision. It would have been up to the executor of
    Mrs F’s estate to deal with matters after her death which may have included funeral arrangements.
53. An LPA is only valid when the donor (in this case Mrs F) is still alive. When Mrs F died Mrs C’s LPA status ended. I cannot say, on balance, what decisions Mrs C would have been involved in after her mother had passed away. I am unable to conclude on balance that any decisions made after Mrs F’s death concerning her affairs was because of fault by the Care Provider and the Surgery. I do not find the Care Provider or the Surgery at fault regarding this part of the complaint.

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Agreed recommendations

54. The Care Provider and the Surgery have agreed to our recommendations and within four weeks of the final decision they will both:
• provide a written apology to Mrs C for the injustice caused to her by the failure to acknowledge her status as her late mother’s attorney for health and personal welfare. Her injustice includes uncertainty, an enduring sense of doubt and distress; and
• pay Mrs C £500 (£250 each) to acknowledge the distress, uncertainty and enduring sense of doubt caused by the faults.
55. The organisations will provide us with evidence they have complied with the above actions.

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Final decision

56. We have found fault causing injustice. The Care Provider and the Surgery have agreed to our recommendations which will remedy the injustice caused. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman