Summary: There is evidence of fault in the way a Care Provider, acting on behalf of the Council, communicated with Ms X at the end of, and immediately after, her mother’s death. The Care Provider’s response to Ms X’s complaint lacked transparency and sensitivity.

The complaint

1. Ms X complains about the circumstances and communications surrounding the death of her mother in a care home. The placement was funded by the Council.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. 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)
4. 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

5. I have:

• considered the complaint and discussed it with Ms X;
• considered the correspondence between Ms X and the Council, including the Council’s response to the complaint;
• made enquiries of the Council and considered the responses;
• taken account of relevant legislation;
• offered Ms X and the Council an opportunity to comment on a draft of this document.

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What I found

Relevant legislation

6. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
7. 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.

Background

8. Ms X’s mother, Mrs Y, passed away in a care home in the early hours of the morning of 5 April 2022, aged 93 years. Ms X had made several requests to visit Mrs Y from the middle of February 2022, but this had been refused because of ‘Covid rules’.
9. The day prior to Mrs Y’s death the care home had telephoned Ms X to say it had requested a GP visit Mrs Y. When Ms X enquired why, she says she was told that in the event Mrs Y died within 28 days, it would avoid the need for a post-mortem. Ms X says this was the third time the care home had made such a request, and on each visit the GP deemed end of life medicinal support not to be necessary. Ms X says the staff member told her Mrs Y had ‘marking’ on her body. She says at the time she did not understand the significance of this, that it can be one of the signs that a person is nearing end of life.
10. The care home’s records show a nurse practitioner visited Mrs Y in the afternoon of 4 April 2022. The notes show the nurse reviewed Mrs Y’s care and decided that some medications should be stopped, and that Mrs Y should be cared for in line with end-of-life guidance. Following the visit, a staff member from the care home called Ms X to inform her of the visit and the action taken. The notes show Ms X said Mrs Y had appeared fine the previous week and that the staff member explained Mrs Y had deteriorated. There is no record that the staff member told Ms X that Mrs Y was receiving end of life care, but the records show Ms X was told she could visit Mrs Y.
11. Ms X says the care home called her and left a voicemail message at 03.26am on 5 April 2022 informing her that Mrs Y’s breathing had changed about one hour earlier and asked Ms X to call the care home.
12. The care home staff telephoned Ms X again at 04.57am to inform her Mrs Y had died. The staff member told Ms X that Mrs Y had died at 03.30am. A few minutes after the call ended, the staff member called again to say he had confused the time of Mrs Y's death with that of another resident, and that Mrs Y had stopped breathing at 04.30am.
13. Ms X sent an email to the care home at 07.40am thanking the staff member for informing her about Mrs Y’s death and enquiring about the process of clearing Mrs Y’s room and other formalities. The staff member responded to Ms X’s queries by email a few hours later.
14. Ms X says the care home did not inform her when Mrs Y was transferred to the funeral home.
15. Ms X attended the care home three days later (8 April 2022) and received a copy of the GP note stating Mrs Y had been ‘found dead’. Ms X says this contradicts the information given by the care home staff member, who said Mrs Y had been found not breathing. Ms X asked two carers if a carer had been present when Mrs Y died, she says the carers were unable to give the name of the carer.
16. Ms X asked to see Mrs Y’s care notes. She and her daughter read the care notes and were confused that there was no record of a carer being present when Mrs Y died. Ms X asked that copies of the care home notes be sent to her. She says the care home manager was disrespectful and insensitive towards her and her daughter when they collected Mrs Y’s personal possessions from the care home.
17. When Ms X received the care notes, she says some information had been added, some of which was incorrect. Ms X says a telephone call was recorded at 8.20am, Ms X says she did not receive such a call. She also says that some information Ms X gave to carers about the dressing of her mother was inaccurate. The GP note recorded Mrs Y to be nearing end of life, and that the care home should inform the family. Ms X says this did not happen. She says had she known, she would have made the four-hour journey to visit Mrs Y. She believes the lack of clear information from the care home denied her this opportunity.
18. Ms X says she did not receive a call or condolence card from the manager of the care home expressing sympathy on her loss. She found this very disappointing.
19. Ms X says she was not promptly informed about the final settlement of Mrs Y’s care fees and that she had to wait until the end of the month for financial matters to be settled and to receive a refund of monies due from Mrs Y’s personal funds.
20. Ms X submitted a formal complaint to the care home’s head office (Care Provider). It explained Mrs Y was not considered to be end of life until the day of 4 April 2022, and as such the visiting protocol in force at the time, as per the NHS guidance, would not have permitted earlier visits. It confirms a staff member informed Ms X that Mrs Y’s skin was ‘marking’, and acknowledged the phrase could have been better explained. The Care Provider explained that the differing terminology of ‘stopped breathing’ and ‘found dead’ related to the authority to declare death. The Care Provider apologised for any distress caused. It apologised for confusion around the garments Mrs Y should wear during transfer to the funeral home and said that care staff had been asked to ensure they communicate such matters adequately in the future. It also assured Ms X that a carer had been present with Mrs Y when she died. The process of financial settlement was also explained, that head office had been informed promptly about Mrs Y’s death, but the accounts department responsible for settling accounts did so according to a schedule. An apology was offered for the distress this had caused.
21. Ms X was dissatisfied with the response, believing it to be inadequate she responded in writing challenging some of the comments made. Following this Ms X had a telephone conversation with a senior manager, after which she received a formal written response in August 2022. The author summarised the topics discussed during the telephone call, including Ms X’s dissatisfaction with the care provided to Mrs Y over previous months/years. The author responded saying “I enquired as to why if you were so dissatisfied with the care delivery, did your mother remain at the home”. The author confirmed that a member of care staff was with Mrs Y at the time of her death but did not name the carer. The author explained it did not accept Ms X’s requested remedy, that the manager at the care home should be removed from post.
22. Ms X remans dissatisfied with the care home’s response and believes it was negligent towards Mrs Y at the end of her life and ‘covered up’ the circumstances around her death.
23. As the Council funded Mrs Y’s care, it is responsible for the quality of care provided to Mrs Y, and any complaints about it. In response to my enquiries, the Council provided copies of the care home’s records for the three days prior to Mrs Y’s death. It also provided a statement from the carer present at the time of Mrs Y’s death. The statement has been submitted under section 32(3) of the Local Government Act 1974, which means I cannot disclose the name of the carer to Ms X. However, I can confirm that a carer went into Mrs Y’s room shortly before she died and became aware Mrs Y was about to die. She sat with her until she passed away. I have no reason to doubt the statement.
24. I have considered the care home’s records for the three days prior to Mrs Y’s death. I have no concerns about the recorded information. The Council was unable to provide copies of food/fluid records saying the care home has been unable to locate this information.
25. In response to my enquiries, the Council examined the complaint correspondence between Ms X and the care home. It says the terminology ‘marking’ used by care staff has been addressed. It also “…agrees that some of the content in the previous complaint response letters to [Mrs X] was unhelpful. This is regretful as [Mrs X] had lost her mother, and support, transparency and sensitivity towards [Mrs X] was paramount at this time”.
26. The Council says its officers visited the care home after Mrs Y’s death and found no concerns that warrant greater or more frequent monitoring.

Analysis

27. When Council’s commission care services for a person they remain liable for the service failures of the service provider. So even though Ms X complains about the care home, it is the Council that is responsible for any failings.
28. I have seen no evidence which gives me any concern about the care provided to Mrs Y at the end of her life. Her care was reviewed by a medical practitioner who instructed the care home to commence end-of-life care. I am satisfied Mrs Y received such care. Ms X should hopefully take some comfort from this.
29. The loss of records pertaining to food/fluid intake in the days before Mrs Y’s death is fault. Records should be up-to-date and stored securely. The misplacement of any personal care records is a breach of the CQC regulations - 17(2)(C) ‘Good Governance’.
30. The crux of the issue here is communication and whether this was adequate and timely.
31. I have no criticism about the timeline of communication in the days before Mrs Y’s death. The care home informed Ms X that Mrs Y’s condition had deteriorated and that it had requested a GP visit. The Care Provider, and the Council accept that the discussion about marking should have been clearer. The use of clinical terms or jargon can cause misunderstanding and should be avoided. Ms X had no understanding of the term. Had she done so, she would have understood the implications and that time was of the essence in any decision to visit Mrs Y. For this the Council should formally apologise.
32. I am satisfied that Ms X was not denied an opportunity to visit Mrs Y. The records of 4 April 2022, show an invitation to visit was offered.
33. Ms X’s wish to understand the final moments of Mrs Y’s life is understandable. Communication around this was poor and confusing. The records show a carer was with Mrs Y in the moments before death, but she had not been sat with Mrs Y for any considerable time. Honesty and transparency around this would have avoided the doubt and mistrust Ms X experienced.
34. The Council accepts that communication immediately following Mrs Y’s death could have been better. For this the Council should formally apologise.
35. The Council accepts that the Care Provider’s complaint responses lacked sensitivity and transparency. For this the Council should formally apologise.

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Agreed action:

36. The Council should:

• provide Ms X with a written apology for the failings set out in paragraphs 30 and 32, 33 and 34 above.

37. The Council should provide this office with evidence it has complied with the above.

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Final decision

38. There is evidence of fault in the way the Care Provider, acting on behalf of the Council, communicated with Ms X at and the end of, and immediately after, Mrs Y’s death. The Care Provider’s response to Ms X’s complaint about this lacked transparency and sensitivity.
39. The recommendation above is a suitable way to settle the complaint.
40. It is on this basis; the complaint will be closed.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman