Summary: Mrs F complains on behalf of her mother that a Council-funded care home failed to allow her to visit her late father when he was at the end of his life during the COVID-19 pandemic. We have found fault causing injustice. The Council has agreed to apologise to Mrs F’s mother.

The complaint

1. Mrs F complains on behalf of her mother, Mrs J, about the care her late father, Mr J, received in a Council-funded care home during the COVID-19 pandemic. She says the Home failed to allow her mother to visit when he was at the end of his life, causing unnecessary pain, stress and heartache.

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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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We have powers to investigate adult social care complaints in both Part 3 and Part 3A of the Local Government Act 1974. Part 3 covers complaints where local councils provide services themselves, or arrange or commission care services from social care providers, even if the council charges the person receiving care for the services. We can by law treat the actions of the care provider as if they were the actions of the council in those cases. Part 3A covers complaints about care bought directly from a care provider by the person who needs it or by a representative, and includes care funded privately or with direct payments under a personal budget. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
4. 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)
5. 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”.
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. If we are satisfied with a council’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

8. I considered the information Mrs F sent, the Council’s response to my enquiries and the guidance Admission and care of residents in a care home during the COVID-19 pandemic, Public Health England, 2 April 2020
9. Mrs F 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

Visiting arrangements in care homes during the COVID-19 pandemic

10. In response to the COVID-19 pandemic and the national lockdown in March 2020, many care homes restricted visiting.
11. The Government issued guidance for care homes on 2 April 2020. This said family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life, in which case visitors should be limited to one at a time.
12. NHS Guidance issued on 8 April 2020 in relation to hospital visits said visits could be made if someone was at the end of their life if certain rules were followed, including minimising the visit to one person, implementing hygiene measures and wearing personal protective equipment (PPE).

Fundamental Standards of Care

13. 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 Regulation 17: Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

What happened

14. Mr J had dementia and other health conditions and was living in Bamford Grange Nursing Home (“the Home”) operated by Four Seasons Health Care (“the Care Provider”). His care was arranged and funded by the Council.
15. The Home decided to stop all visits to residents on 22 March 2020 in response to the COVID-19 pandemic.
16. At the end of March, Mr J became poorly and started to eat less. The Home says on 2 April his temperature and blood pressure were normal but on 3 April he appeared drowsy and was eating and drinking less. It contacted the GP who advised Mr J should be tested for COVID-19. No further observations are recorded and I have not seen the daily records prior to 7 April.
17. On 4 April the Home called 111 as Mr J had deteriorated further, was not accepting medications, fluids or food, and was suspected of having COVID-19. A video consultation took place with a doctor but the Home says the outcome of this was not recorded. An ambulance was called at 2pm; it is unclear in the records whether this was done by the Home or by the GP. Paramedics found Mr J had low oxygen levels and took him to hospital.
18. Mr J was discharged on 6 April. He had tested negative for COVID-19. The Home’s professional visits record show Mr J was placed on an end of life care pathway. Mrs F says the Home’s deputy manager told Mrs J that no visitors were allowed and that Mr J “was not at death’s door, it could be weeks maybe months so I won't be allowing you visits”.
19. The daily records show the Home gave personal care and re-positioned Mr J. He was using an oxygen mask but his breathing was steady and there was no sign of discomfort.
20. Mrs J visited on 8 April and saw Mr J through the window. That evening the Care Provider advised managers that end of life visits could be allowed in line with the recently issued NHS guidance. An email was sent to the Home’s deputy manager with this advice the following morning. Mrs F says a nurse called Mrs J at 10.30pm on 8 April to say Mr J had deteriorated and she needed to see him. Mrs J said she had been told she was not allowed.
21. Mrs J visited at the window again on 9 April and was told she could not go inside. Mrs F says the deputy manager later called Mrs J to advise she would not be able to visit. It was suggested she could have a video call with Mr J. Mrs F says this was the first time this had been offered. Mrs J had a video call with her husband.
22. There was another video call on the morning of 10 April. The Home’s records say that Mrs J was advised visitors were not allowed. The record then says a staff member called Mrs J to say as Mr J deteriorated, she would be able to visit for 15 minutes in PPE. Mrs F disputes this message was given. I have not seen the daily records for 11 and 12 April. Mr J died on 13 April.

Mrs F’s complaint

23. Mrs F complained on 16 April that, when Mr J had been discharged from hospital, Mrs J had been told she could not visit although he was at the end of his life.
24. The Home replied on 13 May. It accepted the clinical observations and discussion with the GP had not been properly recorded and apologised that video calls had not been offered to Mrs J as soon as visiting had been stopped.
25. The response says the Home had sought advice from the Care Provider and had agreed that, as Mr J was at the end of his life, Mrs J could visit once a day for 15 minutes provided she wore PPE. The Home apologised if its communication with Mrs J had caused upset.
26. Mrs F remained dissatisfied and asked for her complaint to be escalated. She said they were not told they would be able to visit if Mr J deteriorated further. However, it was not the Home’s decision to determine when Mr J was at the end of his life. Mr J had been discharged from hospital on an end of life pathway and therefore essential visits should have been allowed from 7 April. The family was heartbroken that they had been denied precious time with Mr J.
27. The Care Provider responded on 17 September. It apologised the response had been delayed as a member of staff had not been available. It said when Mr J was discharged from hospital, the deputy manager had sought advice from the Care Provider and a plan was made to manage visits. The manager did not remember using the words Mrs F recalled. She had spoken to Mrs J about being allowed to visit and apologised if her communications had caused upset. Mrs F complained to the Ombudsman.

My findings

28. The Home has accepted it did not keep proper records. It did not properly record the discussion with the GP on 4 April or Mr J’s observations. It has also been unable to send me the hospital discharge form and the daily records from prior to 7 April, and 11 and 12 April. This is fault and potentially a breach of the CQC’s Regulation 17.
29. Nonetheless it is clear from the records that when Mr J was discharged from hospital he was at the end of his life. The Home and Care Provider should have been aware from 3 April that visits could be made in exceptional circumstances, such as end of life, as the Government Guidance that set this out had been issued to care homes. The Care Provider was certainly aware of this by the evening of 8 April as it emailed managers about this. This message was passed to the Home at 8am on 9 April. I cannot say if or when the deputy manager saw that email.
30. Mrs F says Mrs J was not told she could visit indoors, in fact she was told she could not do so. There is a written record of a call to Mrs J on 10 April, but it is not clear whether the Home told her she was allowed to visit indoors, or whether it told her she could visit at some future point in time if Mr J continued to deteriorate.
31. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened. My view is that it is most likely Mrs J and Mrs F were unaware they were allowed to visit. I consider if they had known they would have arranged that visit.
32. Mr J was discharged from hospital on an end of life pathway and a nurse told Mrs J that he had deteriorated. I therefore find it was fault for the Home not to facilitate an indoor end of life visit for Mrs J after 7 April. There was also fault in not communicating clearly with her after 9 April that such a visit could be arranged.
33. This has caused injustice to Mrs J as she has missed an opportunity to spend time with Mr J before he died, causing significant distress to her and the family.

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Agreed action

34. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.
35. Within a month of my final decision, the Council has agreed to apologise to Mrs J for the injustice caused by its failure to allow end of life visits.

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Final decision

36. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman