Summary: Mr X complained about the standard of care and support provided to his father, Mr Y, by the care provider. He also complained about the care provider’s failure to properly investigate an unattended fall incident experienced by Mr Y and its poor communication with him and Mr Y’s family. There were some faults by the care provider which caused injustice to Mr Y and his family, including Mr X. The care provider will take action to remedy the injustice caused.

The complaint

1. Mr X complained on behalf of his father, Mr Y. He is Mr Y’s representative, and he has power of attorney.
2. Mr X complained about the Care Provider’s:

• failure to provide adequate care and support to Mr Y which led to him having two unattended falls in close succession
• failure to properly investigate the unattended fall incident that happened on 9 October 2022
• poor communication with Mr X and Mr Y’s family.

3. Mr X said Mr Y sustained injuries, he was hospitalised for several weeks and had a surgery as a result of the unattended fall which happened on 9 October 2022. He said Mr Y’s mobility and independence declined and his health deteriorated.
4. Mr X also said the matter caused him and the family significant distress and worry, with several hours spent supporting Mr Y while he was at the hospital. He said that the family is unhappy about Mr Y’s health deterioration.

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The Ombudsman’s role and powers

5. We investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
6. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. Under our information sharing agreement, we will share this decision with the Care Quality Commission.
8. If we are satisfied with an organisation’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)

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How I considered this complaint

9. I have discussed the complaint with Mr X and considered the information he provided. I also considered the information the Care Provider provided in response to my enquiries.
10. I sent Mr X and the Care Provider a copy of my draft decision and considered all comments received before issuing a final decision.

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What I found

Legislation and Guidance

11. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. These include:

• Regulation 12(i) of the 2014 Regulations says a care provider must provide care and treatment in a safe way including by working with health professionals to ensure the health and welfare of residents.
• Regulation 14 of the 2014 Regulations says the nutrition and hydration needs of residents must be met. They must receive suitable nutritious food and fluid to sustain life and good health, with support to eat and drink if needed.
• Regulation 17 of the 2014 Regulations requires a care provider to keep accurate, complete and contemporaneous records of care and treatment.
• Regulation 20 of the 2014 Regulations requires a care provider to act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity.

12. Providers must do all that is reasonably practicable to mitigate risks. Incidents that affect the health, safety and welfare of people using services must be reported internally and to relevant external authorities.
13. Power of Attorney (POA) – is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or finances and property, for when they become unable to do so for themselves. The ‘attorney’ is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.
14. Care Provider’s Complaint Process – is a three-stage complaint process. The care provider will acknowledge complaints within 24 hours of receipt and will issue its response within 20 working days.

What happened

15. This chronology sets out key events in this case and does not cover everything that happened.
16. Mr Y lived with his wife. In August 2022, Mr Y’s family privately commissioned the care provider (CP) to provide domiciliary care for Mr Y and his wife. The initial care package was for afternoon hourly visits twice a week, to be completed by one carer.
17. In early September 2022, Mr X said Mr Y fell and sustained an injury to his head. He said Mr Y was in hospital for one week and his medication was changed. While Mr Y was in the hospital, the family decided there was a need to increase the care package. This was due to a decline in Mr Y (mobility and memory) and his wife’s health.
18. In late September 2022, the care package was increased to 24 hours live-in support for Mr Y and his wife, to be completed by one carer. The CP completed a care assessment for Mr Y. The support plan gave a summary of his conditions which stated Mr Y:

• was recently discharged from the hospital
• was extremely dehydrated with lack of nutrition
• felt faint due to a high dosage of his medication which was the reason he was admitted to the hospital.

19. The support plan stated Mr Y required support with household tasks, medication, social visits, nutrition and hydration. The plan found Mr Y did not require personal care and that he was not at risk of falls.
20. On 30 September 2022, Mr X said Mr Y had an unattended fall.
21. On 9 October 2022, Mr Y had another fall. He fell when he went to the toilet independently and sustained some injuries. Mr Y was admitted to the hospital, he had a surgery and spent a couple of weeks in the hospital.
22. The CP completed an accident report using the statement of the carer on duty at the time of Mr Y’s fall. The report stated Mr Y had gone upstairs to use the toilet when the carer was in the downstairs toilet. The carer then heard Mr Y fall, she went to check him and noticed he had sustained some injuries. The emergency service was notified about the incident. The carer called and informed Mr X about Mr Y’s fall incident. The emergency service took Mr Y to the hospital for treatment.
23. The CP completed a risk assessment for Mr Y following the 9 October 2022 fall. Mr Y was identified to be at medium risk level of falls, but there was no risk identified with his balance and mobility. The CP identified measures to put in place to mitigate Mr Y having further falls upon his discharge from the hospital. The document stated the risk assessment would be reviewed during Mr Y’s re‑assessment.
24. Few days after the 9 October 2022 fall incident, the CP reported the incident to the Care Quality Commission (CQC).
25. Mr X complained to the CP about how Mr Y had had two unattended falls in close succession since the CP started providing care for him. As a result, he said Mr Y’s mobility and independence had declined and the matter had caused distress to the family. Mr X complained about how the CP dealt with the 9 October 2022 fall incident. He said the CP failed to provide the family with an adequate explanation of what happened on the day of the fall and its lack of subsequent communication with the family after the incident. Mr X said since the CP notified CQC about Mr Y’s fall, the CP failed to contact the family. In view of that, Mr X said the CP had failed to discharge its duty of candour under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014.
26. The CP issued two response letters to Mr X’s complaint to it. The CP explained what happened when Mr Y fell on 9 October 2022. It said prior to the fall, Mr Y had not been assessed to be at risk of falls because he had maintained his mobility and independence well. The CP said because of this, and the fact there was only one carer assigned to Mr Y and his wife, it was unsure how the fall could have been avoided. The CP also explained the actions it took following the fall, this included notifying the CQC about the fall. It acknowledged the carer’s manager could have been informed of the fall immediately after the incident happened, and it could have notified CQC earlier than it did. The CP apologised for the delays and confirmed staff performance issues had been reviewed.
27. The CP said it made subsequent communication with Mr X and his brother via emails and telephone calls to get updates about Mr Y’s situation. The CP also said all emails it received from Mr Y’s family were responded to. But it acknowledged it failed to respond to the family’s query about its Critical Incident/Safeguarding Review Policy and whether the CP had recorded Mr Y’s fall incident. The CP apologised to Mr X and reassured him it had been transparent in all its communication with the family. The CP advised Mr X to contact the Ombudsman if he remained dissatisfied with its responses.
28. Mr X remained dissatisfied with the CP’s responses and how it dealt with his complaint. He also remained dissatisfied with the CP’s poor communication with the family about Mr Y’s unattended falls. Mr X made a complaint to the Ombudsman.
29. Mr X terminated the CP’s contract. He had since commissioned a new CP to provide Mr Y with 24 hours live-in care with waking night support.

Analysis

30. Mr X complained about the CP’s alleged failure to provide adequate care and support to Mr Y which led to his falls. He also complained about its failure to properly investigate the unattended fall Mr Y had on 9 October 2022 and the CP’s subsequent poor communication with the family about the matter.
31. I do not consider the CP failed to provide adequate care and support to Mr Y. Evidence shows the CP supported Mr Y with household tasks, his medication, nutrition and hydration as agreed in his support plan. This was not fault. And while Mr Y’s unattended fall on 9 October 2022 was unfortunate, there was no evidence to show his fall occurred as a result of fault by the CP.
32. The legislation states CPs must act in an open and transparent way with relevant persons in relation to care and treatment provided to service users in carrying on a regulated activity. As regards the subsequent actions the CP took following the 9 October 2022 fall incident and whether it discharged its statutory duty of candour, I find some faults by the CP.
33. There was no evidence to show the CP issued Mr X a written notification with details of the fall incident, details of any enquiries into the incident it planned to undertake, the outcome of its investigation and an apology about the fall and injuries sustained by Mr Y. This was fault and not in line with Regulation 20 of the 2014 Regulations.
34. Furthermore, evidence shows that during the CP’s investigation about the fall incident, it took the statement of the carer who was on duty when the fall occurred. And the CP reached its investigation outcome based on the carer’s statement. There was no evidence to show the CP involved or took any statement(s) from Mr Y and his family during its investigation process. I also find no evidence the CP provided Mr Y’s family with the details and outcome of its investigation until Mr X later made a complaint to it. This was fault. It caused distress, worry and uncertainty to Mr Y’s family not knowing the details of how the fall happened and the outcome of the CP’s investigation in a timely manner.
35. The CP said the carer’s manager was not informed about the fall immediately after it happened which caused some delay in notifying CQC. The CP informed the CQC about the unattended fall few days after the incident happened. I consider this was a slight delay which caused no significant injustice to Mr Y and his family. The CP apologised for the delay and confirmed it had dealt with the identified staff performance issues. I consider these are proportionate remedies in line with our guidance on remedies.
36. With the CP’s complaint handling process, the CP failed to deal with Mr X’s complaint under its three-stage complaint process. The CP issued Mr X with two letters in response to his complaint to it. This was fault. Mr X was left with the uncertainty whether the CP carried out a fair and thorough investigation of his complaint.
37. During my investigation into Mr X’s complaints, I found further fault with the CP’s record keeping in relation to the falls Mr Y experienced prior to 9 October 2022.
38. First, there was no evidence the CP recorded the fall incident Mr Y experienced on 7 September 2022. I note this fall happened before Mr Y’s family asked the CP to increase the care package to 24 hours live-in support for Mr Y and his wife. It is unclear whether the fall happened during the CP’s hourly care visits. But I would have expected the fall to have been noted in Mr Y’s care records, so carers were aware of it.
39. And as a result, I find the CP failed to properly consider Mr Y’s care and support needs when it completed his care assessment in late September 2022 before the live-in support started. I note Mr Y’s support plan showed Mr Y had recently been discharged from the hospital, was extremely dehydrated with lack of nutrition and the impact his medication had on him which led to him being admitted to the hospital. But there was no evidence Mr Y’s previous fall was considered before the CP assessed him as not being at risk of falls. This was fault. It caused uncertainty to Mr Y’s family not knowing if Mr Y would have been risked assessed differently if his previous fall had been considered. However, on balance of probabilities, I cannot say Mr Y would not have had subsequent falls even if the previous fall had been taken into account.
40. Similarly, there was no evidence in the CP’s daily care records about the fall Mr Y had on 30 September 2022. There was also no evidence to show the CP carried out a risk assessment following this fall. This was fault and it was not in line with the fundamental standards registered CPs must achieve. This again caused uncertainty to Mr Y’s family not knowing whether measures could have been put in place to prevent Mr Y having subsequent fall(s).

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Agreed action

41. To remedy the injustice caused by the faults identified, the Care Provider has agreed to complete the following within one month of the final decision:

• apologise to Mr Y and his family for the distress and uncertainty caused by the Care Provider’s failure in how it dealt with Mr Y’s falls and poor communication with him and his family. The apology should be in accordance with our new guidance, Making an effective apology
• make a symbolic payment of £200 to Mr Y to acknowledge the injustice caused to him by the faults identified above
• apologise to Mr X for the distress and time and trouble caused by the Care Provider not adhering to its complaint handling process. The apology should be in accordance with our new guidance, Making an effective apology
• by training or other means remind staff of the importance of adhering to the Care Provider’s three-stage complaints process. This is to ensure complaints are thoroughly investigated and responded to in a timely manner
• remind staff of the importance of always recording the care, support, events and actions taken with its service users. For example, fall incidents should be recorded in the daily care record in addition to the completion of the accident report. This is to ensure robust, accurate and contemporaneous record of events are being kept
• by training or other means remind relevant staff of the Care Provider’s statutory duty of discharging its Duty of Candour under Regulation 20 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

42. Explain to the Ombudsman how the Care Provider will monitor its performance against timescales.
43. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

44. I have ended my investigation and I find evidence of fault by the Care Provider leading to injustice. The Care Provider has agreed to take action to remedy the injustice caused.

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Investigator's decision on behalf of the Ombudsman