Decision Date: 12th July 2021
What Happened
Mrs X complained on behalf of herself and her mother, Mrs M. Mrs M was a resident at a Care Home, and suffered from dementia.
Mrs X visited Mrs M daily until the COVID-19 pandemic lockdown restrictions were put in place. On the 2nd July 2020 the Care Home began allowing visits on its front porch.
Mrs X complained to the Care Home in July as she felt the Care Home was not helping to facilitate her visits with Mrs M. Mrs M was often asleep during visiting times, and the Care Home had not replied to her requests to set up a video call. The Care Home replied, stating that although Mrs M spent a large amount of time sleeping, they would try and facilitate a daily call, and schedule three video calls per week.
Mrs M fainted in the Home in mid-July. The GP subsequently recommended that Mrs M receive all care in bed and suggested that the video calls also take place in bed, rather than hoisting her into a chair.
Mrs X asked for increased visits at the end of July, but the Care Home stated this was not possible. It said “all our ladies and gentlemen are extremely vulnerable and at very high risk of serious complications… due to [Mrs M’s] frailty she is one of the most vulnerable. I therefore cannot increase the number of visitors entering [the Home] as each visitor increases the risk of the virus entering…”
Throughout August and September the Home began preparing Mrs M for in person visits by hoisting her into a chair so she could get used to being out of bed. The Care Provider clarified to the LGO during its investigations that the GP “advised” keeping Mrs M in bed, but this was not an instruction. It took account of the balance of keeping a good quality of life vs being bed bound, and decided the benefits outweighed the risk.
When Mrs X was permitted to visit Mrs M in September on the porch, Mrs M fainted and had to be taken back to her room. The GP advised that she should be cared for in bed again.
Mrs X complained the next day. She asked for a copy of Mrs M’s risk assessment as she felt the Care Home was failing to meet her mental health needs. Mrs X also complained that she had been refused window visits or visits in Mrs M’s room due to the risk. She felt that the Care Home needed to tailor its policy in light of Mrs M’s dementia, mobility issues, sight and hearing issues and fatigue.
The Care Home replied the next day and provided the risk assessment which was written after Mrs M’s fainting episode in September. The Home explained that Mrs M’s mental health needs were being taken into consideration regularly and had concluded that her mental health was neither “enhanced or compromised by restricted visiting”. It also explained that the daily calls and regular video calls were “significantly more communication than any other resident received.”
For reasons unexplained in the report, Mrs M’s visiting arrangements were adjusted in September to allow Mrs X inside visits. Mrs X visited on the 1st October, but subsequently complained as she was only permitted to sit 2 metres away, which meant that Mrs M could not properly see her. Following this, a carer sat in on the visits to “support communication” between Mrs X and Mrs M.
Mrs X also complained that a risk assessment should have been carried out before September, and that the existing assessment had significant flaws (not elaborated on in the report). Mrs X felt that if there had been a risk assessment in place before the second fainting episode she would have been able to have inside visits, and Mrs M would not have collapsed outside.
The Care Home sent a full reply stating:
- The Care Home was at full capacity and could not offer any more care or support;
- It had never agreed to Mrs X being closer than 2 metres to Mrs M;
- the Care Home had a generic risk assessment and only residents who fell outside the ‘normal parameters’ had individual ones. In initial assessments, Mrs X was assessed to fall under the generic risk assessment. Following her collapse in September she became less mobile and so a specific risk assessment was carried out and amended to allow Mrs X to visit Mrs M in her room; and
- It disagreed the collapse could have been avoided. Mrs M’s GP had recommended but not insisted that Mrs M be nursed on her bed. The Care Home had been preparing her for a visit by hoisting her to her recliner chair daily for several weeks and she had coped well.
Mrs X complained again in October and asked for increased visits for both herself and her sister several times a week in Mrs M’s room with close contact. The Care Home stated it could not agree to Mrs X’s requests.
After extensive exchanges back and forth Mrs X complained to the LGO.
What was found
Visiting Policy
The Care Home was not at fault for its visiting policy. Care Homes were given encouragement in July 2020 to allow visiting arrangements to be put in place, and at all times the priority was to reduce the risk of COVID-19 transmission in care homes and prevent future outbreaks.
In this case the Care Home amended its visiting policy numerous times during the pandemic and the LGO’s investigation. The LGO stated that the decision to not allow in person visits applied to all residents who fell within normal parameters, which applied to Mrs X at that time. The LGO stated that it was entitled to refuse Mrs X permission for an in person visit, so was not at fault for its actions.
Mrs X felt that due to Mrs M’s dementia she should have been allowed increased visits, however the LGO stated that it was for the Care Home to weigh up the risks and benefits to Mrs M, other residents and staff. The LGO considered that the Care Home fully considered Mrs X’s requests and the family’s individual circumstances and changed its opinion when Mrs M’s condition changed. Therefore, the Care Home was not at fault for its actions.
Care in Bed
The Care Home was not at fault for facilitating an in person visit despite being advised to provide care in bed. The LGO stated that although the GP recommended Mrs M receive care in bed, the Care Home was under “considerable pressure” from Mrs X to make in person visits possible. Usually, it would not have allowed in person visits unless a resident was in the final days of life. In this case, the Care Home assessed the GP’s recommendation, Mrs X’s requests and its current visiting policy. The LGO stated that the Care Home was not at fault for its decision to allow an in person visit, despite Mrs M’s fainting.
Risk Assessments
Mrs M was not individually risk assessed until after her second fainting episode in September. The LGO stated that there was no duty for the Care Home to do so. When Mrs M’s circumstances changed, the Care Home risk assessed her at this stage, which was appropriate, and therefore the Care Home was not at fault.
Mrs X stated that the risk assessment was inaccurate; however the LGO found that there was no fault in the Care Home’s assessment. It considered details of her individual circumstances, including her medical conditions and how these impacted on visiting arrangements. The LGO stated that Mrs X simply disagreed with the assessment, rather than it being inaccurate.
Finally, the LGO stated that there was no fault in the Care Home insisting there be 2 metres between Mrs X and Mrs M when in door visits were allowed.
All in all, the Care Provider was not at fault for any of its actions.
Points to note for professionals, councils, people who use services and their carers, advocacy providers and members of the public
Between March and October 2020, the time before Covid vaccines, one of the most difficult aspects of the pandemic was not seeing family and friends. People in care homes were sandwiched between starkly competing interests and human rights – the right to respect for family life or the right to life itself.
Care home managers and staff tried to navigate these competing rights. They had Government guidance which highlighted the Care Act 2014 duty to promote wellbeing and the Ethical Framework for adult social care which called, as did human rights principles, for respect, reasonableness, minimising harm, inclusiveness, accountability, flexibility, proportionality and community. All of these principles of course contain competing elements within them and compete with each other. There was also detailed guidance about visiting, (of no legal effect but aiming to be helpful to care homes) which the Ombudsman concluded that the care home followed.
This is what the Guidance said at the start of the pandemic:
Considerations for visitors and non-essential staff
- Family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life. Follow the social distancing guidance.
- Visitors should be limited to one at a time to preserve physical distancing.
- Visitors should be reminded to wash their hands for 20 seconds on entering and leaving the home and catch coughs and sneezes in tissues.
- Visitors to minimise contact with other residents and staff (less than 15 minutes / 2 metres etc.)
- Alternatives to in-person visiting should be explored, including the use of telephones or video, or the use of plastic or glass barriers between residents and visitors.
- Visitors should visit the resident in their own room directly upon arrival and leave immediately after the visit.
- Cancel all gatherings and plan alternative arrangements for communal activities which incorporate social distancing.
It is not clear from this report which era of guidance the investigator was thinking the care home was following, or what tier this home was in at the relevant date. We think that that is an aspect of the report that signals that the LGSCO does not intend to encourage complaints about visiting.
The Commons and Lords’ Joint Committee on Human Rights commissioned a report on care home visiting during the pandemic and said this: “It was astonishing to hear the Care Quality Commission claim that they were not aware of any care home in England that was not following the guidance, despite clear evidence to the contrary from residents and their families. The CQC urgently needs to put in place better processes for collecting data on visiting and monitoring adherence with the guidance.”
It concluded that the Department for Health and Social Care had not consulted widely enough when preparing new guidance for the care home sector or provided sufficient notice to families and providers when announcing significant changes to visiting procedures. Greater involvement for residents’ groups in the preparation of guidance would ensure that strong advocates for the right to private and family life are heard when key decisions are made. (Paragraph 30 of the Joint Committee’s report).
In July 2020, the Government’s advice was revised to permit limited visits to care homes, and in October further guidance was published, which applied only to areas under the Medium (Tier 1) alert level:
‘the first priority must remain preventing infections in care homes [however] care homes can now develop a policy for limited visits […] on the basis of a dynamic risk assessment which takes into account the significant vulnerability of residents in most care homes, as well as in compliance with obligations under the Equality Act 2010 and the Human Rights Act 1998, as applicable.
The decision on whether or not to allow visitors] is an operational decision and therefore ultimately for the provider and managers of each individual setting to make.
[The] decision should be based on the advice from the [director of public health], as well as any additional advice or guidance from the local infection-control lead from the CCG, and the [Public Health England local health protection team].
This ‘Tier 1’ guidance also set out a number of factors that should be considered as part of the risk assessment, including that visits should be limited to a single visitor wherever possible, “with an absolute maximum of 2 constant visitors per resident”, visits should take place outside or in a well-ventilated room, appropriate Personal Protective Equipment (PPE) should be worn, and visitors should be supervised “at all times to ensure that social distancing and infection control measures are adhered to.”
As the second national lockdown began in November 2020, the Government updated its guidance on visiting care homes to say that “receiving visitors is an important part of care home life” and that “maintaining some opportunities for visiting to take place is critical for supporting the health and wellbeing of residents and their relationships with friends and family.”
It added that: “Care home providers, families and local professionals should work together to find the right balance between the benefits of visiting on wellbeing and quality of life, and the risk of transmission of covid-19 to social care staff and vulnerable residents as we enter national restrictions.”
Ahead of the transition to the new Tier system in December 2020, amended guidance was published, stating that “visiting should be supported and enabled wherever it is possible to do so safely—in line with this guidance and within a care home environment that takes proportionate steps to manage risks.”
A third national lockdown began on 5 January 2021, with ‘Stay at Home’ guidance setting out that “Visits to care homes can take place with arrangements such as substantial screens, visiting pods, or behind windows. Close-contact indoor visits are not allowed. No visits will be permitted in the event of an outbreak.”
As the third national lockdown restrictions began to ease, amended guidance came into force in March 2021, advising care home providers that every care home resident should be able to nominate a single named visitor who will be able to enter the care home for regular visits. Residents with the highest care needs would also be able to nominate an essential care giver. Care homes could continue to offer visits to other friends or family members with arrangements such as outdoor visiting, substantial screens, visiting pods, or behind windows. The guidance made clear that individualised risk assessments should be completed for residents where necessary, including in respect of specific vulnerabilities set out in the resident’s care plan.
Further changes to the guidance came into force on 12 April 2021, permitting care home residents to have two named visitors, accompanied by babies and toddlers who would not count towards the limit. Visitors and residents should be able to hold hands, but visitors must be tested and wear PPE.
By early 2021 there had been a case on care home visiting that determined that a family member could in fact be a critical part of the care regime: NG (By His Litigation Friend, the Official Solicitor) v Hertfordshire County Council & Ors [2021] EWCOP 2, paragraph 51.
Ultimately, as with most decisions, any care home’s response was a matter of judgement and, therefore, open to someone else having a different view. That’s why it is necessary to follow legal principles and duties, follow lawful process, make the judgement clear, record it and explain it to people concerned, and then act on it.
One of the striking elements of this report is that the care home staff were prepared to use their judgement. They made decisions using their best interests authority, for example to move Mrs M. They did not just follow what another profession recommended or what a concerned family member insisted on. This is heartening. It shows a grasp of the authority the role conferred upon them, which is underpinned by the law and cannot just be handed off to someone else. It is also heartening that the care home staff changed their judgement and actions when the facts changed.
Finally, it is heartening that the LGSCO did not apply hindsight bias to the care home’s decision. Yes, Mrs M fainted when enabled to get out of bed. However, there was no inevitability that this would happen. Too often, people are judged on whether a decision turned out well or badly, rather than whether it was a defensible (lawful and expert) decision at the time.
March to October 2020 was a terrible time. But people still did good work.
The full Local Government Ombudsman report of Windmill Care Limited’s actions can be found here https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-008-688