Date of decision: 18 Nov 2024
Summary
A daughter complained about the care provided to her mother in a Council-commissioned care home, including poor care planning, lack of supervision, and unsafe practices. She complained the care home failed to respond appropriately to concerns raised about her mother’s care and instead evicted her mother.
What happened
Mrs Y, an older woman with dementia, moved into a Council-commissioned care home in December 2022. The care home wrote a care plan for Mrs Y. This included that Mrs Y should have her denture cleaned daily, her hair combed daily, and cream applied to her body. The care plan made no reference to Mrs Y being lactose intolerant, however, the records show the care provider’s diet notification form showed that Mrs Y was lactose intolerant.
In July 2023, shortly after the Council took over funding Mrs Y’s care, Miss X took Mrs Y to the dentist as she had sore gums. The dentist struggled to remove Mrs Y’s lower denture which was in poor condition, and noted that it looked like it had not been removed for several months. The dentist set out instructions for Mrs Y’s dental care. Miss X met with the care provider to update Mrs Y’s dental care plan.
In October 2023 Miss X noticed a knife placed outside Mrs Y’s room, which staff explained was used to open Mrs Y’s door when she locked it from the inside. The care provider did not see the knife could cause harm. Miss X was concerned it posed a risk of injury to Mrs Y and to others in the home who lacked capacity. Miss X removed it but found it back in the same place the next time she visited.
Care staff advised Miss X of an incident where another resident had defaecated in Mrs Y’s presence when they were left alone together and Mrs Y had cleaned this up. Miss X was concerned as the other resident she was left alone with had previously shown aggressive behaviour. Following discussion with Miss X, the care home agreed to move Mrs Y to another unit.
Miss X complained to the care home about these incidents. She also raised these incidents with the Care Quality Commission. It raised a safeguarding concern with the Council, who carried out a safeguarding investigation. The care home manager wrote to Miss X and apologised for using a knife to unlock Mrs Y’s door. The instruction not to this to the staff had not been passed on due to leave arrangements. The manager said staff would now use a coin to unlock the door. It was added that if Mrs Y wished to return to her previous room, they would remove the lock or replace it with a key lock.
The home said that Mrs Y was not distressed during the other resident’s incontinent incident. Staff had attended and supported both residents and supported Mrs Y with hand-washing. The manager acknowledged the incident was unpleasant but said none of the residents was distressed and staff had acted promptly.
Miss X was unhappy with the care home’s response. She discussed the incidents with the manager and also reported that Mrs Y’s bed linen was not being changed until she raised it with staff and additionally that staff had not been cleaning her bottom denture.
A Council officer visited the care home and spoke with Mrs Y. Mrs Y did not understand the concerns and had no recollection of the incident with the other resident. The officer noted Mrs Y expressed she was happy and liked where she was living but she was clearly unable to hold complex conversations.
Following a safeguarding case conference in December 2023, where Miss X said that she thought records were being falsified, perhaps because she was not told about things in a timely manner, the care home suggested Miss X be invited to review Mrs Y’s care plans on a monthly basis and to read through all risk assessments and request any changes.
The care provider arranged for refresher training for care staff on oral hygiene as it was noted that there had been some confusion over the fact Mrs Y had a lower plate and some of her own teeth, resulting in a lack of Mrs Y’s denture care.
The safeguarding investigation found Mrs Y had not come to any harm, but the care provider had failed in its duty to provide appropriate care. The Council ended the safeguarding action in January 2024 after noting that the care home was rectifying the mistakes and Miss X agreed there was some evident improvement in Mrs Y’s care. It noted Miss X could request a review of her mother’s care if she felt that was required.
In January 2024 a nurse observed Mrs Y possibly causing herself an unintended injury. The care home called the out of hours GP who was satisfied with the care home’s actions. The GP decided they did not need to visit and said Mrs Y should only be seen if she showed signs of discomfort, bleeding or pain. Miss X decided to take Mrs Y to the hospital. Miss X did not update the care home or provide a discharge summary.
Miss X reported what happened to the Council. She was concerned the care home had not contacted the GP or removed items from the room to prevent a recurrence. It was noted that Miss X was thinking of reviewing the placement due to her ongoing concerns. The Council was satisfied the care home had taken appropriate action at the time and no safeguarding action was required. The Council noted it was unclear why Miss X had not spoken to staff on Mrs Y’s return from hospital and noted Mrs Y had come to no harm.
In February 2024 the care home gave notice to the Council and Mrs Y, citing a breakdown of the relationship with Miss X. Mrs Y moved out of the care home in April 2024.
What was found
The Ombudsman found:
- The Council investigated the knife left in an unsafe place as a safeguarding concern and concluded the care home had failed in its duty to provide appropriate care. The Council was satisfied the care home had taken action to prevent a recurrence of the fault.
- The care home failed to tell Miss X in a timely manner about the incident when Mrs Y cleaned up after another resident’s toileting accident. The Council found that although Mrs Y was not harmed, the care home’s actions did not meet expected standards with regards to risk assessing the situation, because the other resident was known to defaecate and urinate anywhere and at any time.
- The care plan created by the home provider was inaccurate and failed to reflect Mrs Y’s needs, particularly regarding oral care and dietary requirements, breaching the CQC fundamental standards. The care plan referred to an upper denture but made no reference to Mrs Y having a lower denture. The failure to provide proper oral care caused Mrs Y avoidable discomfort and pain.
- The records show a nurse examined Mrs Y shortly after they were told of the incident by a care worker and was satisfied there was no evidence of harm. There is no evidence of fault in the way the care home responded to this incident. The Council considered the evidence and was satisfied no further safeguarding action was required. There is no evidence of fault in the way it reached that decision.
- The Council properly investigated safeguarding concerns and the care home’s decision to give notice with regard to Mrs Y was not found to be procedurally faulty.
- The Council agreed to apologise to Miss X and pay her £250 for distress and uncertainty, and £300 to Mrs Y for discomfort due to poor oral care. The Council must also evidence staff training in risk assessment and oral hygiene.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Ombudsman decided not to name the care home concerned, to preserve Mrs Y’s anonymity.
Where councils commission care, they remain responsible for ensuring compliance with the Care Act and associated regulations, ie the duty to meet needs appropriately and adequately. They must act decisively when failings are identified, for that reason and also to ensure value for money for the Council.
The statutory framework cited includes:
- Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Providers must deliver person-centred care (Reg 9), ensure adequate nutrition and hydration (Reg 14), and maintain accurate care records (Reg 17).
- Care Act 2014, section 42: Councils have a duty to make safeguarding enquiries if a person with care and support needs may be at risk of abuse or neglect and unable to protect themselves.
The Ombudsman identified non-compliance with the wider legal framework, particularly in failing to involve Miss X as she had Lasting Power of Attorney in care planning and not maintaining accurate, person-centred records. However, the investigator did not specify whether it was a welfare power of attorney or one restricted to finance and property. Either way she would have been likely to be a best interests consultee under the Mental Capacity Act, and power of attorney gives a person the role of statutory agent for the donor.
Under community care law, councils must ensure that commissioned providers deliver lawful, sufficient, and appropriate care, and must not rely solely on provider assurances where there is evidence of risk or harm. The failure to involve the attorney and reflect known needs in care planning would be a likely breach of the Care Act’s well-being principle and the duty to promote participation in decision-making (Care Act 2014, s1, s9, s10, s25; community care law).
It might surprise readers that homes can give notice when they are fed up with people’s relatives’ concerns, but it is a matter of freedom of contract, and as long as it is a fair clause in the contract being relied on, with the council, then they do not have to provide a service when the cons outweigh the pros, for them. An inappropriate ‘revenge’ eviction would be one where nobody actually tried to resolve concerns or where the concerns were obviously and fundamentally serious and were being ignored. Homes owe human rights obligations for anyone funded under the Care Act by a Council and must engage conscientiously with the person’s welfare including the relationship with residents’ relatives, who can be expected to be anxious about their loved ones.
We cannot help but wonder where the Council’s OWN Care Act care plan was, or whether this was one of those placements where the plan just said ’24 hour care – care home’ – which is not person centred or specific enough, to our minds, regarding domains in which the person will have been found to have eligible needs. But if providers do not insist, and simply get on with making up the ones that they are obliged to develop under CQC rules it is hardly surprising that practice has not moved on, in this regard, for the elderly dementia client cohort.
The case highlights the need for councils to:
- Ensure care plans are accurate, up-to-date, and person-centred, with meaningful involvement of attorneys or representatives where capacity is lacking.
- Robustly monitor and hold providers to account for statutory compliance, not just rely on provider assurances.
- Communicate incidents and safeguarding concerns promptly to family and representatives.
- Provide clear remedies and staff training when failings are identified.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s London Borough of Harrow (23 019 869) report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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