Summary: Ms X, complains on behalf of her mother Mrs Z. She said Nightingale Care Home Limited ‘the care provider’ has barred Mrs Z from visiting her sister at the care home. We find the care provider was at fault for not including a review in its policy. This caused significant distress to Mrs Z. To address this injustice, we recommend the care provider updates it policy. We also recommend it reviews its current decision annually.

The complaint

1. The complainant, Ms X, complains on behalf of her mother Mrs Z. She said Nightingale Care Home Limited ‘the care provider’ has barred Mrs Z from visiting the care home. Ms X said because of this, Mrs Z can no longer visit her sister which has caused her significant distress.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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.
5. 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

6. I spoke with Ms X and Mrs Z about their complaint. I considered all the information provided by Ms X and the care provider.
7. Ms X and the care provider had an opportunity to comment on my revised draft decision. I considered their comments before making a final decision.

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What I found

The CQC guidance on information on visiting rights in care homes

8. If a resident does not have the capacity to make decisions about their care and treatment themselves, then someone who has a lasting power of attorney (LPA) for health and welfare can decide this on their behalf. When they do this, attorneys should decide what is in the persons best interests, considering their past and present wishing and feelings, beliefs and values. The care provider should therefore allow the attorney to visit the service to consult with the person and anyone involved in caring for them.
9. If a care provider believes a visitor poses a risk to other residents, staff or the running of the service it should meet first with the visitor and try to resolve any conflict. If the visitor has concerns about a resident’s care, these should be acknowledged, understood and acted on.
10. Care homes have a duty to protect people using their services. If issues cannot be resolved, as an extreme measure the provider may consider placing some conditions that restrict the visitor’s ability to enter the premises. The guidance states any conditions should be proportionate to the risks to other people or staff and kept under review.

Human Rights Act 1998

11. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
12. Article 8 of the European Convention on Human Rights says everyone has a right for their private and family life, home, and correspondence. This right is qualified which means it may need to be balanced against other people’s rights or those of the wider public. A qualified right can be interfered with only if the interference is designed to pursue a legitimate aim, is a proportionate interference and is necessary. Legitimate aims include:
• the protection of other peoples rights;
• national security;
• public safety;
• the prevention of crime;
• the protection of health.

The care providers zero tolerance policy

13. The policy states any behaviour, whether verbal or physical, which causes residents, staff or visitors to feel uncomfortable, embarrassed or threatened is total unacceptable. Those involved may be asked to leave the home immediately and have their access rights revoked.

What did happen?

14. This section sets out the key events in this case and is not intended to be a detailed chronology.
15. Mrs Z sister Ms Y is a resident at the care home. Mrs Z contacted the care provider in October 2022 and stated there were several issues within the care home. This included broken facilities. The care provider confirmed the broken lift had been resolved. Mrs Z contacted the care provider again in December 2022. She said there had been no chef at the care home since September. She also said she would take her concerns to the MP and social care and requested a response.
16. The care provider requested a call with Mrs Z and said her email contained factual inaccuracies and said it needed more information before it could respond. It also said it did have a chef. It said it would provide her with details for the MP and social care if she wished to take this further once it had provided her with a full response. But Mrs Z requested this information in writing.
17. Mrs Z contacted the care provider in January 2023 and said she was awaiting a response. She said it was difficult to arrange visits at the care home. The care provider requested a phone call with Mrs Z to discuss the issues raised and asked to arrange a meeting.
18. In February the care provider contacted Mrs Z and said there were a number of concerns with her conduct in the care home. It said many issues had been raised directly with her but said it had seen no positive change. This included Mrs Z shouting at staff to wake her sister up for a visit which upset Ms Y, negative/derogatory comments towards staff, engaging in a verbal argument with another resident. The care provider also said Mrs Z had been annoyed with Ms Y on more than one occasion for not answering her phone. The care provider also said staff members were fearful of being put down by Mrs Z.
19. The care provider discussed the issues raised with Mrs Z’s nephew, Mr V, who holds LPA for his mother Ms Y. It was noted that Mr Z had no complaints about the care provider. The care provider said it was revoking Ms X’s admission privileges at the care home and the grounds. It also said Mrs Z sister has a mobile phone but said Ms X was no longer allowed to call the care home directly. The care provider said there was a separate process that could be followed and said Mrs Z could make arrangements with Mr V to meet Ms Y elsewhere.

Analysis

20. The Ombudsman’s role is to review care providers adherence to procedure in making decisions. Where a care provider has followed the correct process, considered all relevant information, and given clear and cogent reasons for its decision, we generally cannot criticise it. We do not make decisions on care providers’ behalf, or provide a route of appeal against their decisions, and we cannot uphold a complaint simply because a person disagrees with a care provider’s decision.
21. Mrs Z said her access was restricted as she had made a series of complaints. The care provider said it had revoked Mrs Z’s access to the care home following a series of incidents that were in breach of a zero-tolerance policy. This is a decision the care provider is entitled to make if it has concerns. In reaching this decision we would expect the care provider to be able to evidence how it considered this approach to be the appropriate one.
22. In this case the care provider told Mrs Z it had previously raised issues about her conduct in the home directly to her. But it said it had seen no positive change. I have seen evidence which I cannot share. It supports the care providers concerns. There is evidence the care provider also made attempts to arrange a call with Mrs Z. These concerns raised are detailed in paragraph 15. I understand Mrs Z only wanted to communicate with the care provider in writing. But I do not consider the care provider to be at fault for requesting a phone call to discuss the concerns.
23. In agreement with Mr V, the care provider decided to revoke Mrs Z’s privileges at the care home and the grounds. It considered alternative arrangements. As stated in paragraph 8 the care provider has a duty to protect people using their services. The care provider decided Mrs Z was in breach of its zero-tolerance policy. There is no fault in how the care provider reached this decision. I therefore cannot question it.
24. We asked the care provider what consideration it gave to the Human Rights Act, article 8 respect for your private and family life when making its decision to restrict visits. The care provider said it has not restricted visits and stated Mrs Z could meet Ms Y elsewhere after making arrangements with Mr V.
25. The care provider told Mrs Z it was unlikely to review this decision unless instructed by Mr V. The care provider told us this was a mistake. It said it should have said it was unlikely to revise the decision unless instructed by Mr V. It has provided us with evidence from March 2023 after the restriction was put in place. Mr V said his mother would need to first consent to any visiting arrangements. But other than the one visit that took place, Ms Y has not consented to any other visits. The care provider said this has reinforced its decision to maintain the ban. The care provider said it is open to arranging external visits with the view that if/when these go well, they will be able to have a more thorough review of the restrictions. The care provider has agreed to carry out a formal review on an annual basis. This would be in February 2024.
26. The care providers zero-tolerance policy does not include details of how restrictions will be reviewed. This is fault. The CQC guidance states any conditions should be kept under review. This caused significant stress to Mrs Z.
27. The care provider also said it would be happy to carry out any reasonable tasks that would facilitate any off-site visits that are agreed with Mr V. I have also seen evidence that Mr V stated he was happy to put arrangements in place if his mother agreed to it. Therefore I am satisfied the care provider has given consideration to the Human Rights Act when making it decision. A visit outside of the home has recently taken place.
28. The care provider told us Mrs Z’s sister has fluctuating capacity. But said she has on a number of occasions expressed that she does not want to see Mrs Z. But Mrs Z told us her sister will often tell her about issues she is having in the care home whilst speaking on the phone. Whilst I understand Mrs Z’s concerns, the care provider has a duty to its residents and must take into account any concerns it receives from Ms Y.
29. Before making the decision the care provider should have done a risk assessment with Ms Y to determine whether it was in her best interest. But I cannot say this would have made a difference to the outcome. This is because Ms X was in breach of the care providers policy. The decision was also supported by Mr V who holds LPA.
30. Mrs Z raised concerns to the care provider in October 2022 regarding issues within the home and she received a response confirming a broken lift had been repaired. She contacted the care provider again in October and December 2022 and said she would take her concerns to the MP and social care and requested a response. This was in relation to staffing issues and broken facilities.
31. The care provider attempted to arrange a call/meeting with Mrs Z to discuss this and stated it would provide her with details for the MP and social care if she wished to take this further once it had provided her with a full response. It did also address some of the concerns and stated there were factual inaccuracies in Mrs Z’s email. It stated it needed more information from her before it could address the points raised.
32. Whilst I understand Mrs Z requested the care provider send its response to her in writing, the care provider asked to arrange a call to avoid an email response that repeatedly stated more information was required as an answer to the various points raised. Mrs Z said she requested contact by writing as the care provider was not responding appropriately. I don’t consider the care providers request to be an unreasonable one.
33. I have seen evidence of these emails. As there was never a ‘final’ response, I don’t think it would have been suitable for the care provider to direct Mrs Z to us.

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Agreed action

34. To remedy the injustice caused by fault, within four months of my final decision the care provider has agreed to:
• review and update its zero-tolerance policy to ensure it is in line with CQC guidance which states any conditions should be kept under review;
• complete an annual review of the decision it made to restrict Mrs Z’s access to the home. It should write to Mrs Z with the outcome.
35. The Care provider should provide us with evidence it has complied with the above actions.

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Final decision

36. There was fault by the care provider. The actions the care provider 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