Decision Date: 28th May 2021
What Happened
Mrs D complained on behalf of her late father, Mr B.
Mr B was in his 80’s and suffered from dementia. He moved to the care home on 20th March 2020 after being discharged from hospital, right at the start of lockdown on account of the pandemic.
Mrs D was in the habit of visiting daily would talk to Mr B through his open window. Mr B did not have capacity to make decisions about his care.
Two of Mrs D’s sisters had welfare power of attorney. The home had agreed with the family to liaise with one of Mrs D’s sisters, who would relay information on to other family members.
Mrs D’s sister told her on 12th April that the home had said she should stop visiting altogether.
On the 14th April Mr B was admitted to hospital with a fever and chesty cough, but was discharged the same day. The home was concerned that Mr B had not been tested for COVID-19 despite showing symptoms. Over the next few days it was recorded that although Mr B was not eating much, he was “bright and cheerful”. On the 20th April Mr B began vomiting, and the 111 service told the home to contact his GP, which they did. Mr B was encouraged to eat and drink, and he did not vomit again until the 22nd April. On the 22nd April Mr B’s temperature was normal, but his oxygen levels were fluctuating. The home spoke to his GP again as he was lethargic, weak, vomiting and unable to eat. The GP prescribed anti-sickness medication, but Mr B continued to vomit.
The home alerted Mrs D’s sister to Mr B’s condition.
Mr B’s condition remained the same on the 23rdApril. Mr B was placed on hourly checks on the 24th April as he was still vomiting and was not able to eat. The GP advised the home to continue offering fluids, foods and medications and to call 999 if his condition worsened. The note stated that the GP suspected Mr B may have COVID-19.
After this, the home updated Mrs D’s sister, and placed Mr B on 15 minute checks (temperature and blood pressure). Mrs D called the home that evening, and was told Mr B was being sick, but was “fine”, and had been “pottering about”. She was told that the home would call her so she could be with Mr B if he was thought to be nearing the end of his life.
That evening (24th April), the records of the 15 minute checks stated that Mr B was either sleeping, settled or restful. At 1am Mr B was found without a pulse and had stopped breathing. The home called Mrs D’s sister and 111. The doctor confirmed Mr B’s death over the phone, and the GP referred the death to the coroner, but there was no inquest.
Mrs D complained to the care provider the next day as she was very distressed that Mr B died alone. She complained that the home had not told her Mr B was at the end of his life and was upset she had been told to stop visiting.
The care provider replied a month later offering its condolences. It denied asking her to stop visiting, but stated that it instead raised concerns about a lack of social distancing during her visits. It also said that it had been monitoring Mr B throughout the 24th April and would have contacted Mrs D’s sister if it felt Mr B was at the end of his life.
Mrs D escalated her complaint to a senior manager, who confirmed the care provider’s response in August 2020.
Mrs B then complained to the LGO. She stated that it was a breach of her human rights for the provider to have stopped her visiting Mr B, and that Mr B had been neglected and left to die alone. As a result of the trauma she was now on anti-depressants.
What was found
The LGO stated that there was no evidence that Mr B was neglected, or that the standard of care fell below the fundamental standards. He was regularly checked, medical advice was sought appropriately, and prior to the need for medical attention, he was cared for regularly. The LGO stated that as Mr B’s condition was stable between the periods of 14th to the 18th April, there was no need for the home to contact Mrs D’s sister during this time.
Mrs D stated that her human right to family life was breached by the care provider’s decision to stop her visiting. The LGO stated that the Human Rights Act 1998 applied to local authorities and other bodies carrying out public functions, but not to privately arranged and funded care. This meant that the care provider did not need to have regard to Article 8 when it made its decision. Furthermore, the LGO stated that the home was following the Government’s COVID-19 guidance, therefore was not at fault.
The LGO stated that although the home had agreed to communicate through Mrs D’s sister, it should have been clearer with Mrs D about her visiting arrangements. It should have spoken to her directly when it decided to stop her visiting on the 12th April, and failure to do so was fault, and caused her serious distress.
The LGO recognised that it would have been a traumatic and worrying time for Mr B’s family; however there was no evidence that the care provider acted inappropriately. It communicated thoroughly with Mr B’s GP and updated Mrs D at appropriate times. It did not contact Mrs D or her sister on the 24th April, because it did not consider Mr B to be at the end of his life. The LGO concluded that this was reasonable, and therefore the provider was not at fault.
In its complaint response, the care provider stated that it had not told Mrs D not to visit on the 12th April. However, the records examined by the LGO clearly stated that the home asked the family not to visit. This complaint response was therefore at fault.
The LGO recommended that the care provider apologise to Mrs D.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
In April 2020, there was a total lockdown brought in, other than for reasonable excuse, across England, apart from for key workers, and as otherwise allowed under the regulations. Specific reasonable excuses were provided for, but one could always assert another. The LGO says that visiting people in care homes was not provided for. But in fact the regulations always DID allow people to go somewhere to CARE; and later on in the pandemic, a visitor’s role was upheld as counting as care, and regarded as a vital aspect of the care package. Also, regulations were made later on that specifically added visiting people at the end of their lives to the listed justifications for leaving one’s own home.
The report says that as of April 2nd, 2020, the government’s Guidance to care homes also said family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life. If there was a visit, social distancing guidance should be followed.
Still, inside the care homes at the time, new people were being discharged from hospital often untested to negative, and key workers were going in and out of those homes all the time, back and forth to their own homes.
Everyone knew care homes were at risk from Covid-19 but there were limited tests and protective equipment, there was no vaccine, and it wasn’t widely understood that Covid-19 could be passed on when people were not symptomatic. The requirement to test all care home staff and residents didn’t come in until 28 April 2020.
Whatever one may think of the law and policy around the pandemic, the legal test is whether someone accused of some kind of fault, did what this required. The Ombudsman looked at whether the home’s own policy was followed; it was.
However, the LGO does also look at whether things should have been done better and often finds that they could. The issue here – poor communication of decisions – is unfortunately very common. It is not enough to follow process, there is a need to explain it and record it.
This example shows that a self-funder doesn’t have the same Human Rights Act protection as a person receiving a council-funded service, which may seem bizarre to some. But the reason is that the Care Act provides that care homes (in fact all registered providers) are bound by the Human Rights obligations and that duties are owed to publicly funded clients. NHS arrangements made with care homes have the same effect because the NHS delegates its provision functions TO any care home with whom it contracts, under the NHS Act 2006, such that the provider is carrying the NHS’s duty on its own shoulders.
Self funders’ interests are protected in a slightly different way, through the regulatory framework. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards registered providers 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): The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.
The full Local Government Ombudsman report of Four Seasons Homes’ actions can be found here https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-005-651