Surrey Council at fault in handling of safeguarding procedure and failing to intervene when a care home refused a patient’s return

Decision Date: 25th November 2019

What Happened

Mrs R and Miss S complained on behalf of their mother, Mrs T, who had died since the events recounted in the report.

Mrs T had Alzheimer’s disease which had meant she had needed to live in a Council commissioned care home since July 2017.

On 12 August 2018, Care Home staff discovered a water leak. They called out for a plumber immediately, who attending within an hour from discovery of the leak.

The water leak caused water to seep into the corner of Mrs T’s room, nearest the door.

From the 18th August, Mrs T’s family noticed that she was less alert than usual. They had discussions with the nurse, who arranged a doctor’s visit. Mrs T was prescribed antibiotics, and the Care Home started monitoring her food and drink intake more closely. The records showed Mrs T’s food and fluid intake was lower than usual and she appeared lethargic.

On 30 August, Miss S received a call from the Care Home to say Mrs T was not eating, drinking or taking her antibiotics. Miss S asked why her mother had not been taken to hospital. She was informed by the paramedic who had prescribed Mrs T’s antibiotics that ‘they were not to take Mrs T to hospital because her care plan stated this was against her wishes’.

Miss S and Mrs R both went to the Care Home to insist their mother be taken to hospital. When Mrs T was admitted, she was diagnosed with community acquired pneumonia and dehydration and treated accordingly.

Nurses at the hospital made a safeguarding referral to the Council following concerns highlighted to them by Mrs R and Miss S.

Mrs R and Miss S had a meeting on 13 September 2018 with the Care Home managers (it was unclear if there was a Council member present). Neither the Council or Care Home had records of this meeting, so the LGO relied on Miss S’s account:

  • Mrs R and Miss S asked why their mother had not been moved out of her room when the walls were very wet, and the room smelt damp, even after they had pointed it out and complained about it to the nurse. The Care Home managers disagreed that Mrs T’s room was significantly wet or damp and said the electrician had confirmed there were no issues with the electrics in any part of the Care Home.
  • Mrs R and Miss S questioned why the Care Home decided not to call Mrs T’s doctor or admit her to hospital. The Care Home manager said there had been a misunderstanding of Mrs T’s care plan and the paramedic attending had incorrectly believed she was on her end of life plan, which excluded admission to hospital. The manager apologised to Mrs R and Miss S for this error.

The Care Home provided the Council with a chronology of events following the water leak in response to its safeguarding enquiry.

  • The Care Home explained that no residents needed to be moved from their usual rooms as a result of the water leak, but some were moved to allow contractors unrestricted access to the area to renew plaster that had been damaged.
  • Mrs T’s room had some minor water damage on the walls which needed to be redecorated rather than replastered.
  • The Care Home had a CQC inspection three days after the leak had occurred and which had not identified significant issues with the way in which the Care Home dealt with the water leak.

In October 2018, when Mrs T was deemed fit for discharge, Mrs T’s family were informed by the hospital that the Care Home had said it was unwilling to accept Mrs T back to the home.

From the report, it seems this was out of the blue. Her family were very distressed and contacted the Council the next day who provided them a list of alternative care providers.

Mrs T remained in hospital until 17 October 2018, when she was discharged to a different care home. Her family were extremely upset the Care Home had refused to take their mother back without discussion.

The Council concluded its safeguarding enquiries on 24 October 2018 and decided further action was not required. While Mrs R and Miss S disputed the accuracy of the answers and information the Care Home had given to the Council, they maintained their wish for their mother to return to the home as they believed it was in her best interests. The Care Home managers at the meeting said they felt unable to see a way forward when Mrs T’s family continued to disagree with the Care Home’s handling of matters following the water leak. The Care Home felt their relationship with Mrs T’s family had irretrievably broken down.

Mrs R and Miss S say their mother was very well cared for in her new care home but never fully recovered from her time in hospital. Mrs T passed away in February 2019.

What was found

There was fault in the Council’s handling of safeguarding concerns about the care provider’s actions just before Mrs T was admitted to hospital with dehydration and pneumonia.

The Council also failed to appropriately intervene when the care provider decided to refuse Mrs T’s return from hospital, which caused avoidable distress to Mrs T and her family.

Water Leak

The LGO said that the Care Home’s response to the water leak appeared to have been prompt and appropriate. It took immediate action by calling plumbers, and repair works were completed within a week.

However, the LGO was concerned with the mismatch of evidence arising from the safeguarding enquiry. The Care Home said the water damage to Mrs T’s room was minimal, whereas Mrs R and Miss S provided the LGO with photographs, which showed the water damage to the walls immediately outside and inside Mrs T’s room and electrical sockets. The photographs highlighted to the LGO that Mrs R and Miss S’s worries were understandable. It stated ‘the presence of water around an electrical source, no matter how short-lived, is extremely concerning’.

The Council had seen the same photographs that the LGO had seen, during its safeguarding enquiries. The LGO considered after examining them itself, that the Council did not properly explore the risk of electric shock to Mrs T. This was fault.

It was not however thought possible for the LGO to establish that there was a direct link between the water leak at the Care Home and the decline in Mrs T’s health leading to her hospital admission.

Food and Fluid intake

The LGO stated that there was enough evidence to find that Mrs T did not receive enough hydration in the nine days before her admission to hospital. The Care Home did not adequately record her levels of fluid intake and its records showed little effort to encourage Mrs T to take fluid more often or to provide her with food at times when she was awake.

The LGO stated that was fault, which also suggested a breach of the CQC fundamental standards.

Hospital Discharge

According to Council notes, the Care Home initially sought to assess Mrs T in preparation for her return. Neither the Council nor the Care Home provided the LGO with any explanation for why its decision suddenly changed. The LGO concluded that the relationship breakdown was due to the aftermath of the perceived inadequate management of the water leak risks.

The Council did not question the Care Home’s decision, or seek to arrange a meeting between the Care Home and Mrs T’s daughters, as per CQC guidance (“if issues or conflict develops, the care provider should first meet with the visitor and try to resolve them). This was fault.

Mrs R and Miss S felt strongly that any areas of disagreement between them and the Care Home should not impact on their mother’s care. They were keen to repair the relationship with the Care Home because medical advice suggested it would be better for Mrs T’s recovery to return to a familiar environment.

The Council’s failure to question or challenge the Care Home’s actions in refusing Mrs T’s return to its care home meant it had overlooked her needs. The Council and the Care Home still had a duty to/of care to Mrs T.

The LGO stated that if Mrs T was medically fit for discharge, the Care Home could not refuse her return where there was no question (in truth) of it no longer being ‘unable’ to meet her needs. Its actions here and the Council’s failure to address this show a disregard for her welfare, which was fault.

The Council agreed to make an apology and payment of £200 each to Mrs R and Miss S for the distress, time and trouble caused by not properly liaising with them when the Care Home refused Mrs T’s return from hospital and for not investigating their complaints about the Care Home with sufficient rigour.

Points for the public, care home managers, service users and families and council’s safeguarding officers

  • 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, in a public law sense (regarding the duty to meet needs). As the Council was funding Mrs T’s placement, their contract with the care home should have provided for a notice period to ensure certainty and to avoid distress, rather than just send the family out a list of alternate providers. The Council, as it was the commissioner of the care, should have upheld the terms of its contract with the Care Home.
  • A Care Home can be well within its rights to terminate a contract, but only in a way consistent with the terms of that contract. As the Care Home already breached that duty, when the LGO referred to the Council and Care Home owing Mrs T a duty of care we can infer that it meant a duty was owed to the council to terminate only for real grounds of inability to meet needs, and to the client, in respect of her fundamental human rights. The LGO also touched upon this when it considered Mrs T’s daily food and fluid intake.
  • The fact that all publicly funded care providers under the Care Act owe human rights to the client is something that councils (also owing human rights) need to regard as a matter for their own contract monitoring staff, or else suffer the consequences of liability in damages.

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The full Local Government Ombudsman report of Surrey County Council’s actions can be found here

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