Summary: Mrs X complains Sanctuary Care has failed to deal properly with family contact arrangements at Park View Residential Care Home during COVID-19, resulting in a decline in Mrs Y’s mental health and avoidable distress to herself. Sanctuary Care has not dealt with this matter properly, resulting in avoidable distress. It needs to apologise, pay financial redress and take action to prevent similar problems from arising again.

The complaint

1. The complainant, whom I shall refer to as Mrs X, complains Sanctuary Care has failed to deal properly with family contact arrangements at Park View Residential Care Home during COVID-19, resulting in a decline in Mrs Y’s mental health and avoidable distress to herself.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(4), as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the council followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Mrs X;
• discussed the complaint with Mrs X;
• considered the comments and documents Sanctuary Care has provided in response to my enquiries;
• shared a draft of this statement with Mrs X and Sanctuary Care, and taken account of the comments received.

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What I found

5. On 22 July 2020 the Government issued Guidance: Update on policies for visiting arrangements in care homes. This set out the broad principles on which local policies should be based. Among many other things, it advised taking account of:
• local circumstances and the prevalence of COVID-19;
• balancing the benefits to residents against the risk of visitors introducing infection;
• limiting visitors to a single constant visitor per resident, wherever possible;
• reducing risks via visits to communal gardens, window visits and/or drive‑through visits;
• “the likely practical effectiveness of social distancing measures between the visitor and the residents, having regard to the cognitive status of the resident and their communication needs”;
• “where the healthcare needs of the individual cannot be met by socially distant visits, whether there are sufficient infection-control measures in place to protect the residents, staff and visitors, to allow the visit to take place (…). This might include the provision of personal protective equipment [PPE], as provided to members of staff caring for that individual”;
• “the extent of the harm that will be experienced by the resident from a lack of visitation or whether the individual is at the end of their life”;
• “visitors should wear PPE appropriate to the need of their visit. If a visitor is making close personal contact with a resident they may need to wear PPE which goes beyond a face covering”;
• “consider whether visits could take place in a communal garden or outdoor area, which can be accessed without anyone going through a shared building. If visiting does take place in a resident’s room, visitors should go there directly upon arrival and leave immediately after”;
• “consider the use of plastic or glass barriers between residents and visitors”;
• “consider the possible use of designated visiting rooms, which are only used by one resident and their visitor at a time and are subject to regular enhanced cleaning”;
• “visitors should be encouraged to keep personal interaction with the resident to a minimum, for example avoid skin-to-skin contact (handshake, hug) and follow the latest social-distancing advice for as much of the visit as possible”.
6. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
7. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
8. Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.

Key facts

9. Mrs X’s mother, Mrs Y, has dementia. She lives in Sanctuary Care’s Park View Care Home (Park View).
10. Mrs X complained to Sanctuary Care on 19 July. She said her mother’s mental health had deteriorated over the last four weeks because Park View had failed to follow Government policies and Sanctuary Care’s own policies properly. She said:
• Park View had lost Mrs Y’s hearing aids and did not always have the equipment loaned from the NHS when family visited, preventing her from communicating properly with them;
• Mrs Y was wearing her old glasses, which were not the right prescription;
• earlier in July Park View said only one family member could visit a resident. If two people came, one would have to wait outside for 15 minutes until the other left. But Sanctuary Care’s policy provided for two people from the same household to visit at the same time, subject to keeping two metres distance;
• Park View had for a while imposed a four-metres distance for visits, which made visits to Mrs Y impractical and distressing;
• when taking their temperatures on one visit the same cover had been used for all family members, posing a risk of infection;
• the conditions for visits were unacceptable, Mrs Y sat on a hard chair in the doorway of a fire escape, a wooden bench outside in the cold or in a dingy bedroom;
• three members of staff had sat smoking with no PPE;
• a family member lost 10 minutes of a pre-arranged visit because Mrs Y was still in bed;
• Park View cancelled a visit arranged for Sunday 19 July as it could only deal with five visits a day at weekends, offering a visit on 18 July when Mrs X protested;
• Mrs Y was distressed when Mrs X left and reached out to her, so she held her hand. It was inhumane to expect people with dementia to understand and comply with a policy of no contact with family.
11. When Sanctuary Care replied to Mrs X’s complaint on 27 July, it:
• apologised for the problems with Mrs Y’s hearing equipment and offered to pay for replacements;
• apologised for the problems with Mrs Y’s glasses, including not using the new glasses once found;
• confirmed two people could visit in the garden, provided they stayed two (not four) metres apart, had their temperatures taken and there was no physical contact;
• apologised for the confusion over the arrangements for visits and said Park View was taking action to ensure all staff were aware of Sanctuary Care’s clear guidance;
• apologised a member of Park View staff failed to change the ear covering between taking temperatures;
• said it was sorry Mrs X found the conditions for visits unacceptable at times and agreed to consider other arrangements, including a heated gazebo and other rooms;
• apologised for rearranging the visit on 19 July. Confirmed Park View could deal with 90 visits a week for its 47 residents (14 each weekday, 10 at weekends);
• agreed when reviewing its policy on visits to consider Mrs X’s views that;
1. visits to Mrs Y were essential for her mental health;
2. Mrs X posed a lower risk than some visitors because she is regularly tested for COVID-19 and has had an antibody test;
3. the policy on no touching was inhumane.
12. On 29 July Park View reported safeguarding concerns to Sheffield City Council (the Council) on the basis that Mrs Y’s mental health had deteriorated because of not being able to hold her daughter’s hand during her visits in the garden.
13. On 4 August Park View told the Council it was happy to test Mrs X for COVID-19 each week and for her to hold her mother’s hand when visiting on the day of a negative test result. The Council told Park View it was OK for Mrs X to hold her mother’s hand when visiting if she tested negative for COVID-19.
14. On 11 August Sanctuary Care told the Care Quality Commission it decided not to allow visits along the lines suggested by the Council because of:
• the heightened risk from COVID-19; and
• the disparity it would create with all other families across its 101 homes.

It said the Community Mental Health Team had completed a telephone assessment and felt Mrs Y’s seizure medication may be causing her to become less responsive to conversation and social contact. It said the Community Mental Health Team would discuss this with Mrs Y’s GP. Sanctuary Care said it would review its decision when the impact of any medication change had been assessed.

15. On 13 August Park View told the Council Sanctuary Care had vetoed allowing Mrs X to hold her mother’s hand as it would “open the floodgates”. The Council agreed to confirm its views in writing. It said Mrs X “could visit and hold her mother’s hand if she (daughter) is tested negative each week for COVID-19 and receives a negative result. The understanding being the meetings would take place in a gazebo in the garden”.
16. On 17 August a Doctor from the Community Mental Health Team wrote to Mrs Y’s GP, having spoken to Mrs X and Park View about her condition. Contrary to what appears to have been said on the day of the telephone assessment (see paragraph 13 above), the letter identified no link between Mrs Y’s seizure medication and the decline in her mental health. It says:
• during the lockdown Mrs Y had become withdrawn from interaction with Park View staff;
• she could not interact with family because of COVID-19 restrictions;
• seeing family from a distance and not able to hold Mrs X’s hand for reassurance, comfort and hearing impairments was likely making her more withdrawn and confused;
• Mrs Y was most likely experiencing adjustment reaction due to change in her routine and social interaction with family due to COVID-19 restrictions;
• more appropriate interaction with family members and contact with them would be more beneficial to reduce her feeling of being abandoned and withdrawn behaviour;
• Park View staff should try to improve Mrs Y’s sensory impairment and discuss with Mrs X how her interactions with family members could be increased in a meaningful way, balancing risk/benefit for her best interest and try to achieve a quality of life during the pandemic.
17. Mrs X discussed the contents of the Doctor’s letter with Park View and Sanctuary Care’s Regional Manager
18. On 21 August Sanctuary Care told Mrs X:
• it had not changed its position on visits;
• it had stopped all visits in areas where the spread of COVID-19 was escalating; and
• easing the arrangements for outdoor visits would not be wise until the national picture started to settle.
19. On 2 September Park View assessed Mrs Y’s mental capacity to make decisions on physical contact during COVID-19. It decided she did not have the capacity to make such decisions. Park View decided it was in her best interests not to have physical contact with Mrs X during the COVID-19 pandemic to “maintain her health and wellbeing” and that of other residents. The assessment says visits had been restricted to two metres with visitors wearing PPE at all times. It noted Mrs X’s view about her mother becoming less responsive and introverted. It says the Community Mental Health Team felt this may be due to her seizure medication and said it would consult her GP but also said the lack of physical contact could be contributing.
20. Mrs X complained to the Ombudsman in September.
21. On 17 October Park View produced a COVID-19 visiting care plan for Mrs Y. This says she had been referred to her GP for advice and to the Community Mental Health Team over the deterioration to her mental health. It says the Community Mental Heath Team felt the decline was due to medication for seizures but had not changed the medication. It says Mrs X felt Mrs Y would respond positively to physical touch and wanted to hold her hand but the risk to her, other residents and staff “would be too high to be able to allow this”. It says a tablet had been used to promote communication with Mrs X’s family but “on occasions [she] won’t respond to this”.
22. On 5 November Park View did a “resident visiting plan and risk assessment” for Mrs Y. This says the transmission of COVID-19 probably would occur if control measures were not in place and the consequences could be catastrophic if not followed. It identifies the need for Mrs Y to use earphones to aid communication during visits.
23. Mrs X told me by November her mother was not quite as bad as she had been. She said the visiting policy had changed. And they were meeting behind a clear screen. They could put their hands on the screen and her mother would try to kiss it. When I spoke to Mrs X in March 2021, she told me she could now hold her mother’s hand when she visits.

Did the care provider’s actions cause injustice?

24. Sanctuary Care accepts there were problems (e.g. over hearing aids, glasses and distancing) which affected Mrs X’s visits. They will have affected Mrs Y’s ability to get the most out of the visits. That will have caused injustice to both Mrs Y and her daughter. Sanctuary Care apologised and identified the action to be taken to prevent similar problems from happening again.
25. However, the key issue is the way Sanctuary Care and Park View dealt with Mrs X’s request to be able to hold her mother’s hand when she visited. Ultimately, such decisions are for care providers to take based on the national and local guidance in place at the time. The basic presumption has been against touching, because of the risks to all involved. However, the Government guidance did not rule out touching if a case could be made for it, subject to appropriate safeguards being in place.
26. Park View was slow to assess Mrs Y’s mental capacity and consider what would be in her best interest. The best interest decision did not comply with the requirements of the Mental Capacity Act 2005, as it did not address the checklist of steps or consider the less restrictive option. Nor did it comply with the 2007 Code of Practice which says: “When working out what is in the best interests of the person who lacks capacity to make a decision or act for themselves, decision-makers must take into account all relevant factors that it would be reasonable to consider, not just those that they think are important.” The assessment was flawed because it did not take account of:
• the Council’s views on managing the risks so Mrs Y and Mrs X could hold hands; or
• the Doctor’s view that the decline in Mrs Y’s condition was due to the lack of meaningful contact with her daughter.

The Council had supported Mrs X holding her mother’s hand, provided steps were taken to manage the risks. The Doctor drew no link between the decline in Mrs Y’s condition and her medication for seizures but put it down to the lack of meaningful contact with her daughter. Park View’s assessment was designed to deliver to outcome Sanctuary Care had already ordered. The key issue for Sanctuary Care appears to have been the concern that making an exception for Mrs Y would have implications for other visits across its care homes. But that was not necessarily the case.

27. Park View was also slow to produce a care plan for visits or do a risk assessment. When it did, they were flawed for the same reason as the mental capacity assessment was flawed. They did not take account of all the relevant factors.
28. These faults mean the decisions relating to Mrs Y were flawed. As Mrs X can now hold her mother’s hand when she visits, no purpose would be served by asking Sanctuary Care to review its decisions. However, this leaves some doubt over whether Mrs X would have been able to hold her mother’s hand sooner if it had dealt with the matter properly in the first place. That is an injustice which warrants a remedy for the avoidable distress caused.

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Recommended action

29. I recommend Sanctuary Care:
• within the next four weeks, writes to Mrs X apologising for its failings, and pays Mrs X and Mrs Y £200 each; and
• within eight weeks identifies the lessons to be learned from this complaint and produces an action plan for implementing them, including training on best interest decisions under the Mental Capacity Act 2005.

Sanctuary Care has agreed to do this.

30. Under the terms of our Memorandum of Understanding and information sharing protocol with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

31. I have completed my investigation on the basis that Sanctuary Care’s actions have caused injustice and it will take action to remedy the injustice it has caused.

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Investigator's decision on behalf of the Ombudsman