Summary: Mr X complained he was prevented from visiting his mother and providing her with home cooked food whilst she resided in a Care Home. He says not being able to visit his mother affected him emotionally. The Care Home is at fault for not following its Visitors Policy and Procedure.

The complaint

1. Mr X complained he was prevented from visiting his mother and providing her with home cooked food whilst she resided in Digby Manor Residential Care Home (the Care Home). He also said the Care Home Manager was unprofessional towards him.
2. Mr X said not being able to visit his mother has affected him emotionally. He would like the Council to apologise to him.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this report, we 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. We 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)
4. We investigate complaints about actions taken by or for councils and certain other bodies. (Local Government Act 1974, section 24A(1)(a))
5. Where a council has arranged with another person or organisation to carry out its functions or provide services for it, we shall treat the actions of these providers in carrying out the arrangement as if they were the council’s actions. (Local Government Act 1974, section 25(6) and (7), as amended)
6. Under our information sharing agreement, we will share this decision with the Care Quality Commission (CQC).
7. 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

8. As part of the investigation I have considered the following:
• The complaint and the documents provided by the complainant.
• Documents provided by the Council and its comments in response to my enquiries.
• The Human Rights Act 1998, the Mental Capacity Act 2005, the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and associated Guidance and Publications.
9. Mr X 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

Relevant law and guidance

Human Rights Act 1998

10. We cannot decide if an organisation has breached the Human Rights Act as this can only be done by the courts. But we can make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
11. Organisations will often be able to show they have properly taken account of the Human Rights Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.

Mental Capacity Act 2005

12. 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.

Best interest decision making

13. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

Health and Social Care Act 2008 (Regulated Activities) Regulations 2014

14. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 (the Regulations) are the fundamental standards below which care must never fall. The Care Quality Commission (CQC) has issued guidance (the Guidance) to describe how services can meet the Regulations and have published a detailed publication on ‘Information on visiting rights in care homes’ (the Publication).
15. The Publication says it is important residents in care homes can receive visitors if they want. The care home becomes the person’s home. Moving into a care home is a big change for the individual so it is important for them to see familiar faces to make them feel at home and be able to welcome visitors as they would have done before they started living there. The care home should support visits and make it as easy as possible for friends and relatives to visit. The guidance says visits should be enabled for residents who lack mental capacity to make decisions about who visits them, unless there are compelling reasons they are not in the person’s best interest.
16. The Guidance highlights that staff and managers at a care home also have a duty towards other residents and staff. If a visitor does something which is not in the best interests of the person they are visiting or other residents and staff, the staff and managers should advise the person so they know what to do in the future. They should talk openly with the person to prevent issues becoming more serious or difficult to deal with.
17. The Publication states that if a service that is funded by the local authority stops a resident from receiving visitors, this may be a breach of rights under Article 8 of the European Convention on Human Rights. Rights under Article 8 are not absolute and need to be balanced against other rights and those of other people.
18. The Guidance and Publication draws upon the following Regulations:
19. Regulation 9 says the care and treatment of service users must be person-centred, meet needs and reflect personal preferences. The Guidance states this includes giving individuals choice over food and drink where reasonably practical. The Publication refers to Regulation 9 to emphasise the importance of visiting for person-centred care.
20. Regulation 10 ensures people using services are treated with dignity and respect at all times. The Guidance and Publication explains a person’s privacy must be maintained and their relationships with their visitors should be respected and upheld as far as reasonably practicable during visits. People must be supported to maintain relationships that are important to them whilst receiving care.
21. Regulation 14 is about meeting nutritional and hydration needs. The Guidance explains people should be able to make choices about their diet. Religious and cultural needs must be identified in their nutrition and hydration assessment and these needs must be met.

What should have happened

The Care Home’s policies and procedures

22. In response to our enquiries, the Council provided the Care Home’s ‘Visitors Policy and Procedure’. The document is produced by the Care Home and was reviewed in April 2022. The contents are the same as when Mr X’s mother resided at the Care Home.
23. The policy acknowledges the Care Home is the home of the resident and recognises family and loved ones being able to visit is essential to person-centred care.
24. Section 5.5 of the policy states if residents are assessed as not having capacity regarding accepting visitors, ‘visits must still be enabled and encouraged, unless there are compelling reasons to say they are not in the resident’s best interest. The Mental Capacity Act decision-making process will always be followed in these circumstances.'
25. Section 5.6 of the policy states ‘Visitors are requested to declare all food and drink brought onto the premises for consumption by Residents to a member of staff in order for… the Care Home to exercise its duty of care in this area.’
26. Section 5.10 to 5.13 sets out the procedure where visitors are considered to be causing a risk.
27. The first step is for the Manager to talk to the visitor as they may not realise their behaviour is posing a risk. If the behaviour continues, the Manager assesses the level of risk and the impact on the resident. In extreme cases, the matter is referred to the Council. If criminal activity has taken place, the police will be contacted and the CQC informed (section 5.10)
28. The policy acknowledges conflict between staff and visitors may be detrimental to the wellbeing of the resident. If issues or conflict develops, the Manager will meet with the visitor to try and resolve them (section 5.11).
29. If issues cannot be resolved (section 5.12), as an ‘extreme measure’ the Manager may place conditions on the visitor restricting their ability to enter the premises, for example, visits to take place in the resident’s room only. The conditions are to ‘be proportionate to the risks to other people or staff and kept under review’ (section 5.13).
30. The policy states ‘the safety of the resident, other residents and staff is paramount.’

What happened

31. I have summarised below the key events; this is not intended to be a detailed account.
32. Mr X cared for his mother (Mrs Y) in her own home. Mr X’s siblings have Lasting Power of Attorney (LPOA) for health and welfare decisions for Mrs Y.
33. A Social Worker (SW) visited Mrs Y in July 2021 and assessed her as lacking capacity in understanding her care and support needs, deciding where to live and managing her monies.
34. The Council arranged temporary respite care for Mrs Y. She moved into Digby Manor Residential Care Home, Erdington (Care Home) at the beginning of October 2021. Mr X says he visited Mrs Y most days and brought her home cooked food.
35. The Care Home’s visitor logbook is no longer available for the period. The Care Home has provided daily logs. An entry on 12 October says Mrs Y ‘enjoyed a visit’ from Mr X and there were ‘no concerns at time of report.’
36. On 14 October, Mr X visited Mrs Y as usual and brought her a home cooked meal. The Manager met Mr X at the door and said he could not bring the food into the home. The Manager says Mr X raised his voice and made her feel uncomfortable. The Manager prevented Mr X from entering the home and said he was no longer able to visit.
37. Mr X said he wanted to make a complaint. The Manager provided the contact information for the Director of the Care Home to make a complaint.
38. Mrs Y’s daily log sheet is silent on Mr X’s visit on 14 October. It does not record staff asking Mrs Y if she wanted to see Mr X, or if she wanted the food he had brought.
39. Staff at the Care Home completed an individual risk assessment form on 14 October, identifying the following risks: ‘challenging behaviour from family towards staff’ and ‘cooked food brought in by family’ is a risk to Mrs Y. The risk is to be reduced by suspending visiting from Mr X. The review date is left blank.
40. The Manager emailed the SW the same day and told him Mr X has ‘…come in most days and is bringing food, plates and cutlery to give to his mom. I raised this with him today and he became challenging and argumentative. I have refused him access and informed…’ the LPOAs. The SW spoke to the Manager the following day to discuss the matter further. The SW’s notes of the conversation show he advised the Manager Mr X could ‘remain in the hallway when visiting his mother’ but the Manager said they had already made the decision.
41. The SW telephoned one of the LPOAs on 15 October to advise them the Care Home prevented Mr X from visiting. The LPOA said they had no concerns about the care provided by the Care Home.
42. Mr X complained to the Director of the Care Home on 15 October. The Director investigated the matter and sought the views of the Manager and the SW. The Manager provided her account of what happened. She said Mr X rang the doorbell and she met him at the door. She said she was responsible for nutrition, and she could not monitor this if staff did not supervise what M was eating. Following this, she says Mr X ‘…was raising his voice and making me feel uncomfortable.’ She then went back inside and spoke to one of the LPOAs and told her what happened. The LPOA advised her not to let Mr X in and to call the SW. The doorbell rang a second time, the Manager spoke to Mr X again. Mr X said he wanted to make a complaint; the Manager gave him the details on how to make a complaint.
43. In response to the Directors investigation, the SW said he spoke to the LPOAs who had no concerns about the care and support Mrs Y has received at the Care Home, which the SW echoed.
44. The Director responded to Mr X. In his letter, he said the Manager ‘confirms you were denied access… because you wanted to bring in home cooked food.’ He said the LPOAs and SW supported the decision and had no concerns over the care and welfare of Mrs Y. He therefore did not uphold Mr X’s complaint. Later in the letter, he also says the Manager said ‘she felt uncomfortable with your deportment. She claims that you raised your voice and she felt intimidated.’ He concludes saying Mr X is not allowed access to the Care Home. If Mr X wanted to see Mrs Y, he should arrange this through one of the LPOAs or SW. The letter said Mr X could report the matter to the Care Quality Commission. There was no internal appeal or review mechanism.
45. Mr X complained to the Ombudsman on 30 October. In response to our enquiries, Mr X said he was not aggressive towards the Manager. He said he listened to the Manager, said goodbye and left.
46. In response to our enquiries, the Manager said ‘physical aggression displayed by this person was the reason for no entry, not the food brought in. I was openly talking to him explaining my concerns about the food not being cooked in the home… he then blew up and I was vulnerable and so was my residents.’

Analysis – was there fault?

Implementation of the Care Home’s Visitors Policy and Procedure and compliance with the Regulations

47. The Policy states, ‘Visitors are encouraged’ and are essential to person centred care. It acknowledges the Care Home is the home of the resident and encourages flexibility and control for residents to receive visitors. This is also consistently promoted within the Regulations, Guidance and Publication. Visiting appears to have been promoted originally as Mrs Y had visits from her family. Mr X says he visited his mother most days in the Care Home. The records show that these were enjoyed by Mrs Y and there were no concerns raised prior to 14 October.
48. Regulation 14 highlights the importance of nutritional needs and for people to be able to make choices about their diet. This includes identifying their religious and cultural preferences. Section 5.6 of the Policy allows visitors to bring food into the Care Home for residents providing it is declared. The Care Home staff knew Mr X brought food for his mother, they were able to help Ms M make a choice about her food and monitor her diet. The Care Home did not raise any concerns with Mr X about him bringing home cooked food, typical of Mrs Y’s cultural background, prior to 14 October.
49. On 14 October, Mr X attended the Care Home and brought home cooked food for Mrs Y. The Manager met him at the entrance and said he could not give the food to Mrs Y. The actions of the Manager were contradictory to the Policy which states food is allowed to be brought for residents providing it is declared. Mr X declared the food and had done so from when Mrs Y moved into the home until 14 October. The Manager’s actions are not in line with the Policy.
50. Mrs Y’s Nutrition and Hydration Care Plan says Mrs Y is offered a nutritious and varied diet however ‘her preferences and choice will be respected.’ There is no record of the Care Home seeking Mrs Y’s views on the food brought by Mr X and giving her the choice to eat it. The plan had been written in accordance with the Regulations and Policy. The Care Homes actions did not reflect this.
51. The Guidance highlights what to do if a visitor does something which is not in the best interests of the person they are visiting, other residents and staff, as summarised in paragraph 10 above. The Care Home’s procedure for handling visitors causing a risk is explained in paragraphs 20 to 24 above.
52. Following the Procedure, the first step is for the Manager to speak to the visitor. There are no records of the Manager talking to Mr X and explaining why she believes his behaviour is inappropriate or why he cannot bring food to his mother, before the 14 October. In response to our enquiries, the Council said the Manager had an open discussion with Mr X and his sibling but this was about other matters; and not about Mr X’s behaviour or bringing food. The Manager should have discussed any issues with Mr X at an early stage. This would have also been in line with the Guidance which says staff should explain to a visitor how they can moderate their behaviour in the future if this is required. The Manager did not speak with Mr X first and explain why his behaviour was potentially inappropriate, so she did not follow the Care Home’s policy or the Guidance.
53. The Policy says in extreme cases, the Care Home will refer the matter to the Council. The Manager told the SW of the incident after the event.
54. The Policy says if issues cannot be resolved, as an ‘extreme measure’, the Manager may impose conditions that restrict the visitor’s ability to enter the Care Home. The Policy gives an example of a condition that visits are to take place in the resident’s room only. The Manager did not consider any solutions or conditions and skipped this step within the Policy.
55. Any conditions should be proportionate and kept under review. The Manager did not apply any conditions and this was not kept under review.
56. There is no mechanism within the Policy to remove a visitor from the Care Home or prevent them from visiting. The above sections of the Policy consider restricting visits to be an ‘extreme measure’ and must be proportionate and kept under review. The Care Home did not justify its decision.
57. The Care Home did not follow all the steps within its own Policy when it decided to not allow Mr X to visit his mother. It appears the Regulations – the CQC fundamental standards – which require person centred care, treatment with dignity and respect and privacy to allow relationships to be maintained where reasonably practicable may have been breached. The Care Home did not do enough to protect Mrs Y’s relationship with her son.

Best interests decision making

58. Following the incident on 14 October, the Manager discussed the matter with the LPOAs who agreed Mr X should not be allowed to visit Mrs Y. The Manager emailed the SW to tell him what happened. The decision to restrict Mr X visiting should have been linked to Mrs Y’s needs and what was in her best interests, there is no record of this. The correspondence from the LPOAs and SW says they had no concerns about the care Mrs Y was receiving at the home. There was no discussion of the benefits or otherwise of Mr X visiting Mrs Y and bringing food and how this impacted on her.
59. In a telephone conversation the following day with the Manager, the SW suggested Mr X could visit Mrs Y in the hallway; the Manager said the decision had been made. The Visitors Policy says visiting can be restricted using conditions, but banning visitors is not an option. The Manager should have considered placing conditions on visiting instead of banning Mr X. The Manager should have followed the policy. The SW should have done more to challenge the actions of the Manager and encouraged them to follow the Care Home policy.
60. There is no record of the Manager seeking the views of Mrs Y, on either her son visiting, or eating the food he had brought her. This is central to person centred care. It is understood Mrs Y lacks capacity to make some decisions for herself. The Care Home should still seek Mrs Y’s views to make a decision in her best interests, both under the Regulations and the Policy. The Guidance says visits should be enabled unless there are compelling reasons they are not in the person’s best interests. There is no evidence this was considered.
61. There is no evidence from the Care Home that the visits from Mr X were harmful to Mrs Y or that she did not want him to visit.
62. There is no evidence the decision was reasoned and considered thoroughly, nor the least restrictive option. The only available evidence shows the decision was reactive following the altercation on 14 October, without following the correct processes.

Banning Mr X from the Care Home

The Manager should make the decision in line with its Visitors Policy and Procedure and the Regulations. They did not; this is fault. If the Manager followed the Policy and Regulations, she could have explained to Mr X why his behaviour was unacceptable and allow him the opportunity to moderate this. The Manager did not give him this opportunity, this is fault.

63. The Manager has given inconsistent accounts of Mr X’s behaviour. Initially, the Manager described his behaviour as ‘challenging and argumentative’ to the SW. In their report to the Director the Manager said Mr X was ‘raising his voice and making me feel uncomfortable’. In response to our enquiries, the Manager said Mr X displayed ‘physical aggression.’ Mr X says he was not aggressive, rather he listened to what the Manager said and left. There are different accounts of the events on 14 October and there is no way of knowing exactly what happened. The behaviour displayed is not the issue, rather it is whether the Care Home followed its own policy when dealing with it, and acted in accordance with the Regulations. We have not been provided with any evidence to show the Care Home followed its Policy and Regulations, this is fault.

Conclusions

64. The Care Home has not followed all the steps within its Visitors Policy and Procedure, neither has it complied with the Regulations and supporting Guidance and Publication. It did not allow Mr X to give Mrs Y the option of eating the home cooked food providing it was monitored following 14 October. It did not discuss concerns about Mr X’s behaviour and bringing food for his mother at an early stage to prevent the situation escalating, neither did it seek to apply conditions to his visits. The decision to prevent Mr X from visiting (without seeking permission first) was final, made arbitrarily and on the spot, without following the process, and without any internal appeal mechanism. The decision was made without referring to Mrs Y and asking what she wanted, and there is no record to show it was made in her best interests.
65. The Care Home was at fault for failing to properly consider its decision to ban Mr X. It failed to properly consider whether the ban on food and Mr X visiting was necessary, the least restrictive, and in Mrs Y’s best interests.
66. As the Council organised Mrs Y’s care, we consider it is responsible for the faults we have identified.

Injustice

67. The fault caused an injustice to Mr X. He was prevented from visiting his mother which affected him emotionally.
68. We have found fault with the actions of the Care Home who provided the care on behalf of the Council. To put things right we have made recommendations to the Council.

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Agreed action

69. Within four weeks of the final decision, the Council agreed to:
• issue an apology to Mr X, in line with the Ombudsman’s Guidance on Remedies;
• pay Mr X £400 to recognise the distress caused by the Care Home for banning him without notice, the distress of not seeing his mother for four weeks and his time and trouble in raising his complaint.
70. Within three months of the final decision, the Council agreed to:
• liaise with the Care Home to ensure it has taken appropriate steps to make staff familiar with the Visitors Policy and Procedure and the actions to take before excluding a visitor.
71. The Council should provide us with evidence it has complied with the above actions.

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Final decision

72. I have completed the investigation. The Care Home is at fault for not following its Visitors Policy and Procedure. This caused Mr X emotional distress.

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Investigator's decision on behalf of the Ombudsman