The Ombudsman's final decision
Summary: Ms X complained on behalf of the late Mrs Y about the care she received and the way the Council dealt with safeguarding concerns. She says this caused Mrs Y and her family much distress and they would like the Council to learn from this case. We find the Council at fault in both the care provided and the safeguarding process. We recommended it apologise, refund 50% of Mrs Y’s care costs and take action to avoid similar problems in future. It has agreed to take these actions.
The complaint
The complainant, whom I shall refer to as Ms X, complains on behalf of her late mother, Mrs Y. Ms X says the care provided to Mrs Y by Helping Hands Newbury (the Care Provider), was poor. She says neither the Care Provider nor the Council properly investigated or dealt with her complaint about this.
Ms X says the family were “very distressed” and “distraught” by Mrs Y’s experience during the last days of her life. The time it took to complete the complaint and safeguarding caused more pain, as did the inaccuracy of the report. They are appalled and shocked at the Care Provider’s lack of acknowledgement of its failings; it took almost five months to add a sentence to say it apologised. They would like the manager to be retrained in hoisting and handling people properly and to be trained to teach the care workers. Also, to ensure correct record keeping. They would also like a meaningful apology and a financial remedy for the “distress, pain and hurt”.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’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) If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended) We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended) We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by: their personal representative (if they have one), or someone we consider to be suitable.
(Local Government Act 1974, section 26A(2), as amended). We are satisfied Ms X is a suitable person to complain on Mrs Y’s behalf.
How I considered this complaint
I considered information from the Complainant and from the Council.
I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.
Background
Safeguarding 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. (section 42, Care Act 2014) The safeguarding duties apply to an adult who: have needs for care and support (whether or not the local authority is meeting any of those needs) are experiencing, or at risk of, abuse or neglect as a result of those care and support needs are unable to protect themselves from either the risk of, or the experience of abuse or neglect (section 42, Care Act 2014) Safeguarding Adults Boards The Care and Support Guidance to the Care Act 2014, says a Safeguarding Adults Board (SAB): “oversees and leads adult safeguarding across the locality” “can be an important source of advice and assistance, for example in helping others improve their safeguarding mechanisms”.
West Berkshire Council Safeguarding Adults Policy and Procedure The Council’s policy and procedure document says: “Local Authorities should aim to provide swift and personalised safeguarding responses, involving the adult at risk in the decision making process as far as possible.”.
“Where a care provider is involved, consideration should be given to the management of that organisation being notified immediately…to enable them to take appropriate action eg suspending staff about whom allegations have been made.”.
“The Local Authority should decide very early on in the process who is the best person/organisation to lead on the enquiry. Where there are multiple agencies involved, the LA should take the lead and delegate specific parts of the enquiry as appropriate, co-ordinate the response and ensure the enquiry is completed to a satisfactory standard…The Local Authority retains the responsibility for ensuring that the enquiry is referred to the right place and is acted upon.”.
“The degree of involvement of the Local Authority will vary from case to case, but at a minimum must involve decision making about how the enquiry will be carried out, oversight of the enquiry, decision making at the conclusion of the enquiry about what actions are required, ensuring data collection is carried out, and quality assurance of the enquiry has been undertaken.”.
“Information sharing should be timely, co-operation between organisations to achieve outcomes and co-ordinate actions, keeping the safety of the adult as paramount.”.
“Where enquiries are simple, single agency enquiries it may not be necessary to hold a meeting.”.
The Council also has a framework for managing allegations against people in a position of trust. This includes people who are paid to care for others. It says: “Where a formal section 42 safeguarding enquiry is being undertaken, the allegations management function can be carried out as part of the enquiry process and this should include: An assessment of risk posed by a ‘person in a position of trust’ to be considered in the initial safeguarding planning meeting and subsequent meetings.”
“Where the concerns involve a person working in a commissioned service, inform the relevant commissioning/contracts team.”.
“If the person is employed or volunteers for a regulated service provider, CQC should be informed.”.
“Sometimes the employer will need to consider suspending an employee …Whilst it’s the employer who makes this decision, it is entirely reasonable for the LA to request a risk assessment or explanation on how they have reached that decision where the employer has decided NOT to suspend or apply any proportionate sanctions to the person who has an allegation made against them”.
Constipation The NHS website says “If you’re caring for someone with dementia, constipation may be easily missed. It’s important to be aware of any changes in their behaviour that might mean they are in pain or discomfort, although it’s not always easy”.
The Care Quality Commission The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards and prosecute offences.
Regulation 9 is about person centred care. The guidance says: “Providers must do everything reasonably practicable to make sure that people who use the service receive person-centred care and treatment that is appropriate, meets their needs and reflects their personal preferences, whatever they might be.”.
“Each person, and/or person lawfully acting on their behalf, must have all the necessary information about their care and treatment. This information should be provided in a way that the person understands.”.
“People using the service and/or those lawfully acting on their behalf must be actively encouraged and supported to be involved in making decisions about their care or treatment as much or as little as they wish to be.”.
Regulation 12 is about safe care and treatment. The guidance says: “Providers must do all that is reasonably practicable to mitigate risks”.
“Staff must follow plans and pathways”.
“Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities/bodies. They must be reviewed and thoroughly investigated by competent staff, and monitored to make sure that action is taken to remedy the situation, prevent further occurrences and make sure that improvements are made as a result. Staff who were involved in incidents should receive information about them and this should be shared with others to promote learning. Incidents include those that have potential for harm”.
“The provider must actively work with others, both internally and externally, to make sure that care and treatment remains safe for people using services.”.
Regulation 17 is about good governance. 17(2)(c) says care providers should “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”.
What happened Mrs Y lived at home with her son, Mr Z, and had received support from Helping Hands Newbury (the Care Provider) since August 2020. She received one visit of 60 minutes, and three of 45 minutes, from two care workers, every day. Ms X visited regularly to help care for Mrs Y. She says there were no documents in the house; the care workers used an app to access the records and make notes. Ms X asked for access to this so she could check on Mrs Y when she was not able to be there, but the Care Provider said this information was not available to her. The Council said it would not expect documents to be kept in the house.
Following a stay in hospital in October 2020 Ms X became concerned that Mrs Y was not eating and drinking properly. Mrs Y was prescribed two Senna tablets every other night to be taken as needed. When, Ms X became concerned that Mrs Y was constipated she says she asked the Care Provider to give Mrs Y Senna.
A bruise appeared on Mrs Y’s forehead; care workers did not know how it happened, had not recorded it on a body map or told the family. Mrs Y told Ms X it was caused by a buckle on the hoist sling. During the final week of providing care, care workers left Mrs Y’s SOS wrist band off on two occasions. They also left Mrs Y’s television facing the bed when she was in her chair and could not see it and broke two touch operated lamps which Mrs Y could use. When care workers struggled to rouse Mrs Y and she was confused and drowsy, care workers did not report this to anyone. Ms X also raised concerns about a male carer being present during personal care as Mrs Y had asked for female only carers for personal care.
Ms X was concerned about Mrs Y, so she telephoned the GP surgery and said Mrs Y was very sleepy, not passing much urine and it was very dark in colour. A nurse at the surgery advised that Mrs Y was very dehydrated. They said Ms X should insist the care workers help Mrs Y to drink at each of the four daily visits as they were probably not ensuring she was drinking. Ms X asked the Care Provider repeatedly to share the fluid, urine and bowel charts with her but did not receive them. The nurse also asked the DNs to carry out a bladder scan and blood test.
Care workers contacted 111 late at night to ask for Mrs Y’s wound to be redressed because the dressing was leaking. Ms X says it was due to be changed the next day anyway. They did not speak to Mr Z or Ms X before doing this and did not mention any of the other concerns noted in their records. The following day, the district nurses also carried out a bladder scan on Mrs Y and instructed care workers to “push fluids”. Mr Z called an ambulance later that night because Mrs Y was in pain. She was admitted to hospital. The ambulance service report says Mrs Y was “groaning in pain” but able to speak to the crew and tell them about her pain. It said they could not roll her because of the pain but examined her bottom while she was being hoisted. It said it was “visibly” sore with “various pressure areas/moisture lesions. Bleeding from the bottom…”. Also, that “Carers report [Mrs Y] has not passed urine for 4 days”. It also suggested possible severe dehydration and constipation. The hospital notes state she had “intermittent loose stool” and had not had her bowels open for three days. A doctor telephoned Mr Z about a 4cm tear on Mrs Y’s bottom and Ms X then also spoke to the doctor. Ms X said the doctor was angry as the tear needed stitches and had not been treated. The concerns were recorded at the hospital for internal use only; the Council’s safeguarding team was unaware of this record.
CQC advised me that care workers should have a basic understanding of overflow incontinence. They need to consider risk factors such as medication which causes constipation, and fluids. They should record urine and bowel output on a chart using the Bristol stool chart which should highlight any problems.
The next day, Mrs Y sadly passed away.
The safeguarding enquiry Ms X pressed the Care Provider for Mrs Y’s records and she received them almost one month later. The care records revealed that care workers had only given Senna to Mrs Y twice since her hospital stay. They also contained several notes about Mrs Y not passing much urine and it being dark but nothing to indicate care workers alerted anyone to this. They did not contain any body maps or fluid, urine, or bowel charts. Records completed by both care workers attending Mrs Y at each visit, were, at times, contradictory.
At the beginning of December, Ms X complained about the actions of the Care Provider, to the Council. This included safeguarding concerns and the allegations included actions of the registered manager, a person in a position of trust (PIPOT). The Council agreed to process the complaint in January 2021 and passed a safeguarding concern to the relevant locality team to complete a full enquiry. However, the officer was on sick leave and could not complete the enquiry.
On 12 January 2021, Ms X emailed the Council as she had heard nothing more and at this point, the Council realised no one had picked it up. The case was allocated to officer A to investigate. The Council says that the Council’s system would otherwise have picked this up on 14 January, six weeks after the concern was raised.
Three days later, the Council alerted the Care Provider to the safeguarding concerns and asked it to provide Mrs Y’s records which it did a week later. Nearly two months after it received the concerns, the Council asked the Care Provider’s area manager to investigate. The Council also contacted the district nursing service, the hospital, and Mr Z. It did not note that the Care Provider’s manager was a PIPOT and did not note that it referred to the PIPOT framework.
Ms X met with two members of the safeguarding team, to go through the events. She had obtained copies of the care workers’ records taken from the Care Provider’s app, and other evidence and shared this with the Council. This included copies of the care workers’ notes, the paramedic’s report, photos, and some of Mrs Y’s hospital notes.
In early March, the Care Provider completed its investigation and gave its response to the Council. It acknowledged the care records could have been better and said it would be working to improve this. It also said it did have a care plan, but this was only available to staff. It also said, “As a domiciliary care provider, we do not complete charts”. It said: “usually fluid and bowel charts sit within [the district nurses’] remit”. It acknowledged that care workers had not recorded a bruise they noticed on Mrs Y’s forehead neither on a body map, nor on an accident report. The Care Provider said it addressed this with the staff concerned under its internal capability policy. It said staff would receive retraining and be monitored for improvement. It could not find evidence of the same staff member using the wrong technique when hoisting Mrs Y and causing a tear. However, it said it took this on board and included hoisting in the retraining and monitoring. It also said it would work with staff on making sure the care given “meets the needs and expectations of the person”. It said it had highlighted the importance of “actioning the detail” on the care plans, with the care team.
The Care Provider also confirmed its customer portal was now live and meant people would have access to their care notes when they wished. It said it would like to pass on its condolences to Ms X and appreciation of her feedback. It said, “we apologise for the discomfort this will have caused to her and other family members at a very difficult time.”
The Council issued its safeguarding enquiry report. It listed several allegations against the Care Provider: Failed to monitor and get support for serious pressure wounds; It found no evidence of pressure wounds.
Failed to recognise poor food and fluid intake and ensure foods and fluids regularly encouraged.
It concluded that the care notes did not record how much Mrs Y ate or drank and some care records had little information. Record keeping in some instances was poor. It recommended training for staff around recording and said recording needed to “improve significantly” to provide a consistent picture of care being provided.
Failed to follow instructions from family and district nurses relating to constipation by not giving Senna as prescribed.
It concluded that care records showed Mrs Y had regular bowel movements either in her pad or when on the commode. The records note bowel movements as small, soft or diarrhoea, which could have been overflow incontinence and constipation. The report said care workers would not ordinarily be expected to know this.
Failed to keep appropriate records and communicate effectively with the family about significant changes to Mrs Y’s health and wellbeing.
The report concluded that appropriate records were not always kept and were not easily available. It noted that care workers telephoned 111 without consulting with Mr Z who lived in the property however, it was good practice to contact health professionals.
Failed to report unexplained bruising which Mrs Y told Ms X was caused by a hoist strap.
On this allegation, it concluded this should have been investigated as soon as possible not ignored. It said the safeguarding process must be followed with unexplained marks which may be a sign of abuse. It said all staff needed further safeguarding training. The Care Provider’s regional manager was advised to check the manager’s competency around safeguarding.
Did not notice a 4cm sacral tear; cause unknown.
The hospital confirmed calls made to Ms X and Mr Z but made no reference to a skin tear. The hospital only mentioned moisture lesions which was an ongoing condition managed by district nurses (DNs). The DNs confirmed they had not noticed or recorded a skin tear.
The outcome of the safeguarding enquiry report was that the Care Provider take the following actions: Keep food and fluid charts if there is a risk of dehydration.
Be more transparent with recording and sharing information with both families and professional Provide training to improve recording/reporting of incidents and understanding safeguarding such as unexplained injuries. Use of body maps.
Regional manager to check competency of registered manager in relation to safeguarding process.
Training in the importance of fluid charts, if encouraging fluids as part of a care plan, and risks of dehydration. Reporting to health professionals if fluid intake is low.
On-going development plan for care workers and manager.
Training needs to include what needs to be recorded and why in daily records.
Suggest staff are observed in practice and competency assessments completed.
Ms X was unhappy that the safeguarding enquiry report contained inaccuracies and wrote to the Council at the end of March setting out her concerns in detail. The report suggested that Mrs Y did not have a 4cm sacral tear and that a nurse had telephoned Ms X and Mr Z to update them about Mrs Y. Ms X insisted it was a doctor who called and told them about the tear, but the report did not reflect this. Following numerous emails between the Council, Ms X, and the hospital, the doctor who telephoned Ms X and Mr Z, with concerns about the tear clarified this. The doctor also confirmed there was a deep, 4cm tear. The Council added this to the report following Ms X’s comments. It concluded it could not know what the cause was but that the family’s explanation was plausible. The report also said the nurse from the GP service had told the safeguarding team that she had no concerns about the care Mrs Y received. Ms X says the nurse had not seen Mrs Y for nine months. She had told Ms X that Mrs Y was dehydrated because the care workers were probably not making sure Mrs Y drank. Ms X asked for the report to be amended. The Council added Ms X’s comments as an appendix to the report. Ms X was not happy with this, particularly around those issues where further investigation or checks could verify her position. This included the nurse who had not seen Mrs Y for months. The nurse had told the Council this information and suggested it contact the DNs for more information. Ms X also felt that she would not have needed to be pushing for changes to critical points such as the tear if the Council had completed the enquiry satisfactorily.
The Council completed some further investigation. This included contacting the district nurses and the hospital doctor who confirmed the 4cm skin tear and that she phoned and spoke to Mr Z and Ms X. In May 2021, five months after Ms X raised her concerns, she received the Council’s final response and an amended enquiry report. Ms X complained to us because she was not satisfied with this response. She said she wanted the Council to correct the inaccuracies in the report and apologise.
Was there fault which caused injustice?
The care provided to Mrs Y was undoubtedly poor as the safeguarding enquiry found. Care workers were not adequately trained and failed to keep adequate records of the support provided and the risks to Mrs Y. They also failed to follow the safeguarding process when required. This was a potential breach of regulations 12 and 17. I will therefore send a copy of my final decision statement to CQC. The Care Provider should have alerted someone to Mrs Y’s minimal fluid intake, minimal urinary output, and the risk of constipation. This could have been done days before she was admitted to hospital, potentially changing the impact on her health and wellbeing. Although the sacral tear was a later issue, earlier attention to this might have also improved the outcome for Mrs Y. This was fault and, on the balance of probability, caused significant and avoidable harm and distress to Mrs Y. We cannot now remedy this, but she did not receive the care she paid for and therefore her estate should be refunded some of the cost to reflect the care provided. It also caused significant and undue distress to Ms X and Mr Z and significant, and avoidable, time and trouble to Ms X.
Although the safeguarding enquiry made significant findings about the poor service provided to Mrs Y by the Care Provider, it was not adequate. This was fault. The Council delayed significantly in starting the enquiry. Six weeks to begin considering safeguarding concerns is too long. Similar problems with delayed allocation occurred in another case which happened around two months earlier. I accept that Mrs Y was no longer at risk, however, the Care Provider had many more clients. With such serious allegations about the staff, and manager of the service, who continued to provide services to others, these concerns needed to be addressed promptly. Issues of poor recording, moving and handling, lack of understanding around its safeguarding responsibilities and need to maintain input and output charts are clear indicators of risks to others. The PIPOT framework exists for managing these risks, yet the safeguarding records made no reference to it. I also concluded that the enquiry had not properly listened to Ms X’s concerns about the evidence she challenged. Ms X had to telephone the DNs herself to ask specifically about the 4cm skin tear because the safeguarding enquiry had not done so. When she told the enquiry the DNs were not aware of the skin tear, it agreed to investigate it further. It also agreed to call the hospital again to find out about the tear when Ms X again confirmed her position on this. More formal enquiries to the hospital may have given a clearer understanding, sooner. A meeting with someone who was present at the time would have been better still, as it would have been for further enquiries based on Ms X’s challenge. The Council says a problem with the hospital records caused the problems. A discussion with the safeguarding lead and relevant hospital staff might well have revealed more information and potentially addressed any shortfall in the hospital’s record keeping. The safeguarding enquiry did eventually accept there was a deep skin tear but, possibly due to the time lapse, did not determine how this happened. The safeguarding policy and procedures does not specify when meetings or discussions are required or what communication between agencies should look like. However, it does say “Where enquiries are simple, single agency enquiries it may not be necessary to hold a meeting.”. This suggests that in all other cases it is necessary to hold a meeting. The Council says it communicated using telephone conversations in lieu of meetings and says this is acceptable. However, brief, one to one telephone conversations cannot adequately replace a meeting for discussion of the issues between more than two people. Meetings are also possible remotely.
Agreed action
When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, where I have found fault with the actions of the care provider, I have made recommendations to the Council.
To remedy the injustice identified above, I recommended the Council: Apologise again to Ms X and her family.
Reimburse Mrs Y’s estate with 50% of any contribution she paid towards the care she received from Helping Hands Newbury.
Ensure it is satisfied that the Care Provider has improved its practice adequately and take appropriate action if it has not.
Refer this case to the Safeguarding Board for consideration, with a view to ensuring the learning from this case, and the related case, informs future practice.
If the Safeguarding Board does not agree to support this recommendation, the Council should put in place a plan of action to address the issues highlighted in this decision.
Complete the first recommendation within one month of my final decision and the others within three months and submit evidence of this to me. Suitable evidence would include a copy of the apology, confirmation of reimbursement, and action plan for addressing the Care Provider’s shortfalls. Also, evidence of the submission to the Safeguarding Board and its response, or an action plan. The action plan should show progress on addressing these issues.
The Council has already submitted evidence to me of improvements made by the Care Provider. This includes a change of manager and oversight by both the Care Provider’s senior management and the Council’s commissioning team.
Final decision
I have completed my investigation. I uphold Ms X’s complaints about the care it provided for Mrs Y and the way it dealt with her complaints about that.
Investigator's decision on behalf of the Ombudsman