Date of decision: 09 Jun 2025
Summary
This complaint was that a care provider left an elderly woman at risk, failing to prevent her leaving home at night unsupervised and allowing contamination of her food with liquid soap. The family terminated the contract. The Ombudsman found that the care provider did take appropriate action when addressing the incidents and they were not at fault.
What happened
In 2022, a family arranged live-in care with Promedica24 for their 90-year-old mother, citing memory loss and susceptibility to risk which was noted in the pre-contract assessment.
The provider’s plan stated she should not go out alone except into the garden. It also included that Mrs X did not have capacity to make ‘big’ decisions but that she was capable of making daily decisions regarding her care. She was regarded as of medium dependency.
On 7 June 2024, there was an incident where Mrs X left the house alone during the night dressed in her night clothes. A passer-by alerted a neighbour and the issue was thus resolved. The carer had locked the Yale lock but not the mortice locks. The carer was reminded that she must use all 3 locks.
Mr A, her son, who held power of attorney for health, welfare and finances, claimed the carer failed to prevent his mother leaving the house at night and did not keep external doors sufficiently secure as when he visited a week later the front door was unlocked and he was able to enter the house without keys.
Further concerns were raised about missing liquid soap in the main WC, a bruise and cut his mother sustained where no dressings had been applied, and several instances where his sister had stayed overnight and gone downstairs in the morning to find Mrs X was already up but the carer was still asleep in bed.
The care provider responded to these complaints. They stated that the carer had worked all day and was asleep as there was no provision for nighttime care. They said that this was the first incident of this kind with Mrs X, and it was seen as an isolated incident. The care manager had told the care worker to monitor the situation and alert her if there were any further incidents. The care provider apologised that the door had been unlocked when Mr A visited again. They said the carer had left it unlocked because she knew of Mr A’s planned visit. The care provider stated that there was no soap because Mrs X had mistakenly taken it and put it on her food the previous evening.
The care provider said Mrs X had not fallen while out but had tried to use her walker while the carer was out of the room, and slid to the floor.
The carer said they had never known Mrs X get up before her unless there was a visitor in the house. The carer had her alarm set for before Mrs X’s usual waking time.
Mr A disputed the care provider’s findings. The family terminated the contract on the day of the complaint.
The care provider said that care needs were always reviewed every 4-6 weeks by a care manager at a visit and the plan updated accordingly. In respect of the two principal complaints the care provider stated that the incident where Mrs X left the property was the first of its kind. The plan was to monitor moving forward and double lock the front door as agreed with the family, and then potentially implement other strategies which were least restrictive such as door sensors.
Prior to the incident where Mrs X left the property the door was locked but with accessible keys to Mrs X. After the incident it had been agreed with the family to double lock the door but place the keys somewhere where they would be easily reached in an emergency. The care provider had said this was a ‘reasonable next step’.
The incident with the soap was the first incident they were aware of, and the day they were made aware the family gave notice, so they were unable to put any steps in place. Although Mrs X had poor short term memory, she was able to make her own daily decisions and would also participate in reviews of her care.
What was found
The Ombudsman noted that the care provider had looked after Mrs X without incident (barring an early complaint in April 2022) for two years. It was of course worrying for her family that she was able to exit the house at night alone but there had been no previous attempts by her to do so. The care provider put in place a plan going forwards to prevent a recurrence.
The family disputed the care provider’s explanation as to why there was no liquid soap in the downstairs WC as implausible, but there was no evidence to suggest it was untrue.
Mr X and his family took the decision to terminate the contract at that point, which was their prerogative. The Ombudsman did not see evidence that significant injustice was caused to Mrs X by any fault of the care provider and saw no reason to pursue the complaint further.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out for care providers the fundamental standards they must achieve. The Care Quality Commission (CQC) has further guidance on how care providers can meet these standards.
Of particular importance here is Regulation 12 which requires care providers to provide care in a safe way for service users. It says they must assess and manage risks to safety, balancing those risks with the rights and autonomy of people receiving care. But this was not a care home provider, and the provider had no rights to manage the property beyond the lawful authority of the property and finance attorney, which does not extend to locking one’s relative in, even if the attorney has welfare power as well.
The regulations for providers require any service to be carried out in accordance with the Mental Capacity Act 2005, such as using best interests decision making; lawful restraint; and, where required, application for authorisation for deprivation of liberty through the Mental Capacity Act 2005 Deprivation of Liberty Safeguards or the Court of Protection.
The Mental Capacity Act 2005 sets out the steps to follow when an individual’s capacity is in question and introduces the concept of the Lasting Power of Attorney for health, welfare, property and finance.
Where family members act under a power of attorney, their views should be accorded substantial weight, and best interests decisions must be fully evidenced.
At the outset of the report the Ombudsman references the need where required, for application for authorisation for deprivation of liberty through the Court of Protection but does not engage in any analysis of whether Mrs X was deprived of her liberty. Mrs X was not free to leave although she may not have been under continuous supervision and control. She was thought to have capacity about day to day care decisions, but her capacity to consent to the front door being locked was not specifically considered.
If she was deprived of her liberty, the question then arises as to whether this was imputable to the State. The local authority might not have known about these arrangements as Mrs X appears to have been a self-funder, but we find it alarming that neither the care provider nor the family seem to have considered whether any authority might be required from the Court of Protection for these arrangements. We would expect the care provider at least to have been aware of this possibility even if the family did not know about it. Holding a lasting power of attorney does not give the attorney the authority to consent on behalf of the person thus deprived of their liberty.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Promedica24 (Lancashire) Limited (24 006 336) report.
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