Summary: Ms D complains Healthcare Management Trust was negligent when caring for her late father at Coloma Court Care Home. We have found fault causing injustice. The Care Provider should apologise to Ms D.

The complaint

1. Ms D complains Healthcare Management Trust was negligent when caring for her late father, Mr F, at Coloma Court Care Home. In particular she complains the care provider:
• failed to call NHS 111 to arrange a COVID-19 test on 27 March 2020, and
• failed to call an ambulance promptly when Mr F's oxygen levels fell.
2. Ms D says as a result her father's health deteriorated and he died a few days later.
3. She also complains the care provider refused to allow the family to visit Mr F on 2 April 2020.

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The Ombudsman’s role and powers

4. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
5. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
6. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
7. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

8. 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 care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
9. If we are satisfied with a care provider’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

10. I spoke to Ms D about her complaint and considered the Care Provider’s response to my enquiries and:
• COVID-19: guidance on residential care provision, Public Health England, 13 March 2020; and
• Admission and care of residents in a care home during the COVID-19 pandemic, Government guidance, 2 April 2020
• Treatment summary: Oxygen, National Institute for Health and Care Excellence (NICE)/BNF (“the NICE guidance”)
11. Ms D and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fundamental Standards of Care

12. 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.

Residential care during the COVID-19 pandemic

13. On 13 March 2020, Public Health England published guidelines for care homes which advised staff to use personal protective equipment (PPE) with residents displaying COVID-19 symptoms. It said: "If neither the care worker nor the individual receiving care and support is symptomatic then no personal protective equipment is required above and beyond normal good hygiene practices.”
14. The guidance also advised care homes to review their visiting policies. The Care Provider did so and advised families on 13 March 2020 that it had stopped all visits to residents unless “absolutely necessary”. Requests for essential visits would be considered by the Home’s manager.
15. Further Government guidance for care homes was published on 2 April 2020. This said care homes should monitor residents and staff for COVID-19 symptoms daily. The symptoms are a fever (over 37.8°C), cough or shortness of breath, although these may be more nuanced in older people with other illnesses. Residents with symptoms should be isolated in a single room with separate bathroom where possible. Care homes should report residents with fever or respiratory symptoms to NHS 111 for advice on assessment and testing. If symptoms worsened the GP should be contacted.

COVID-19 testing

16. Initially, COVID-19 testing was available for all suspected cases but on 12 March 2020, the criteria for testing narrowed to only the most severe cases of people admitted to hospital. Care homes with more than one symptomatic resident should have informed the Public Health England local health protection team, which could arrange swabbing for up to five initial possible cases to confirm the existence of an outbreak.
17. The Care Provider says it contracted with an independent laboratory to test staff and residents from 9 April.
18. On 15 April, the Government announced that staff working in care homes in England requiring a test would be able to access one and that all symptomatic care home residents would also be tested.

What happened

19. Mr F was in his 80s with Parkinson’s, dementia and other health conditions. He had been living at Coloma Court Care Home (“the Home”) run by Healthcare Management Trust (“the Care Provider”) since 2018.
20. On 25 March 2020 Mr F had a cough. His temperature was monitored hourly until the Home spoke to the GP the next day. The GP advised that Mr F should isolate in his room for a week.
21. The daily records show Mr F’s temperature was 38° at 7:20am on 27 March, though this was not recorded on the temperature chart. Mr F’s temperature then fell, his urine was tested and showed signs of infection. The GP prescribed antibiotics for a possible urinary tract infection. Mr F’s temperature was 37.9° on 28 March but did not rise above 37.8° again.
22. On 31 March Mr F complained of shortness of breath; his oxygen saturation levels were over 90%. The Home spoke to the GP that evening who did not consider Mr F needed to go into hospital.
23. Mr F woke in the early hours of 1 April with difficulty breathing and coughing; he moved into a chair but his oxygen level was not checked. At 7:36am his oxygen level was 88%. The nurse says Mr F was awake, communicating and did not show any signs of discomfort. He ate some breakfast and for the rest of the day his oxygen levels varied between 92% and 97%. His cough was not persistent, though he complained of shortness of breath again later. The nurse continued to monitor Mr F and reported his symptoms to the GP by email. The nurse records for that night say that at about 10:00pm “observation done … sat 80% on air” but this is not recorded on the blood oxygen chart.
24. On 2 April Mr F’s oxygen levels were 84% at 06:19am. They had increased to 93% by 10:40am. Mr F was reviewed by the GP on a video call, who considered he had an upper respiratory tract infection and prescribed new antibiotics.
25. Ms D spoke to Mr F that day and raised concerns with the Home about his shortness of breath. She discussed visiting Mr F with the nurse who agreed this would be of benefit to Mr F due to his anxiety and dementia. The nurse asked the Home manager if a visit could be arranged. The manager decided it was not an essential visit and declined the request.
26. Mr F slept in his chair again on the night of 2 April. At midnight his oxygen level was measured at 74% but no medical advice was sought.
27. Mr F was found at 3:30am on 3 April having slid down his chair. At 7:30am his oxygen was again low at 86% but there was no discussion with the GP that day. Mr F’s oxygen had increased to 96% in the afternoon.
28. In the early hours of 4 April, Mr F’s breathing became shallow and difficult. His oxygen level was 74% and an ambulance was called which arrived at 03:45. In hospital Mr F tested negative for COVID-19. After initially improving his condition deteriorated and he passed away on 7 April. His death certificate records chest sepsis and pneumonia.
29. The Home asked the family to collect Mr F’s belongings on 23 April. Ms D says when they did this, the Home did not ask them to wash their hands, wear gloves or masks.

Ms D’s complaint

30. Ms D asked the Home for Mr F’s records. She then made a formal complaint on 21 July 2020. The Care Provider responded on 17 August 2020. It said:
• Essential visits by family were being facilitated only at end of life. Ms D’s visit request was declined following appropriate risk assessments. There was a need to treat all residents and families equitably and in a consistent way, balancing the decision-making with the potential risk to the residents and staff across the home.
• When the family came to collect Mr F’s belongings they were wearing masks and gloves on arrival.
• Mr F’s GP was contacted on a regular basis and had prescribed antibiotics.
• From 1 to 3 April Mr F’s oxygen saturation was initially low at the beginning of the day but this improved as he became more alert and mobilised.
• Testing for COVID-19 was not being offered by the Government for care home residents at the time.
• A resident of the Home had tested positive for COVID-19 on 7 April.
31. Ms D complained to the Ombudsman.

My findings

32. The Ombudsman cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgment. Having reviewed Mr F’s records, I can see that advice was sought from the GP and his temperature, blood oxygen level and blood pressure were regularly checked by the nurse. The GP did not consider Mr F required hospitalisation on 31 March, was aware of his symptoms and reviewed Mr F again on 2 April. I therefore do not find any fault in Mr F’s care up to 2 April 2020.
33. However, that night Mr F’s oxygen level dipped to 74% but medical advice, such as calling 999 or 111, was not sought. I find this was fault. The NICE guidance says normal blood oxygen levels should be above 94% and whilst the GP was aware that Mr F’s was often below 90% in the mornings, I consider falling to 74% to be a significant deterioration in his presentation and would have expected the Home to seek medical advice in the circumstances.
34. I cannot say that if it had this would have made a difference to the outcome for Mr F, or even whether he would have gone into hospital then, but Ms D and the family are left with uncertainty about what might have happened if medical advice had been sought sooner.
35. I also found that some of the measurements taken of Mr F’s temperature and oxygen levels had not been recorded on the relevant charts. This is fault, but I do not consider it led to a significant injustice to Mr F.
36. Ms D feels the Home’s actions amount to negligence. Negligence is the breach of a legal duty of care owed to one person by another that results in damage being caused to that person. The Ombudsman cannot decide whether there has been negligence. It is for the Court to set the standard on negligence and decide on an appropriate outcome.
37. Ms D asked to visit Mr F in the Home on 2 April. The evidence shows the nurse sympathised with family’s request as Mr F’s dementia and isolation was causing him anxiety. However, the request was turned down by the manager. He weighed up the risks and determined essential visits were for end of life only. This was a decision he was entitled to make, it was in line with the Home’s new guidance and I have seen no evidence of fault in the way it was made. I therefore cannot criticise it.
38. Ms D complains the Home did not arrange for Mr F to be tested for COVID-19 on 27 March when he was displaying symptoms. However at that time testing was not available except for people in hospital. There was therefore no fault.

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Recommended action

39. Within a month of my final decision, the Care Provider should apologise to Ms D for the uncertainty caused by the failure to seek medical advice on the night of 2 April 2020.

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Final decision

40. There was fault by the Care Provider which caused injustice. I have recommended actions it should take to remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman