Decision Date: 26th July 2021
What Happened
Mrs F complained on behalf of her mother, Mrs J.
Mrs F’s father, Mr J had been living in a care home, funded by the Council.
Due to COVID-19, the Home stopped all visits on the 22nd March 2020.
At the end of March, Mr J became unwell, and lost his appetite. His condition did not improve, and on the 3rd April records showed that Mr J tested negative for COVID, and was drowsy and not eating or drinking.
After the 3rd April, there were no observations recorded of Mr J’s condition until the 7th April, and the LGO report suggested that the daily records were sparse.
The notes available showed that the Home called 111 on the 4th April, as Mr J was still refusing food and drink, and stopped accepting his medication. A video consultation took place with a doctor, but there were no records of this.
An ambulance was called at 2pm on the 4th April. It was unclear whether the GP or the Home made the call. The paramedics transferred Mr J to hospital after finding his oxygen levels were low.
Mr J was discharged back to the Home on the 6th April, after testing negative for COVID again. Mr J was placed on an end-of-life care pathway on his return.
The Home 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”. The Home’s records showed that Mr J was using an oxygen mask, but his breathing was steady and he showed no signs of discomfort.
Mrs J visited him through the window of the Home on the 8th April. That evening, the Care Provider told the Home’s staff that end of life visits were permitted in line with new NHS guidance. Also that evening, a nurse called Mrs J at 22:30 stating that Mr J’s condition had worsened, and she should come to see him. Mrs J told the nurse she had been told she was not allowed.
Mrs J visited Mr J from the window the next day (9th April) and was told she could not go inside. Later that day the Home offered Mrs J a video call with Mr J. This was the first time this had been offered.
On the 10th April Mrs J had another video call with Mr J. Records showed that Mrs J was again advised that no visitors were allowed, but this was rescinded, and a staff member stated that Mrs J could visit for 15 minutes in PPE. Mrs F and Mrs J disputed that this offer was given.
There were no records for 11th and 12th April. Mr J sadly passed away on the 13th April, without Mrs J being able to visit.
Mrs F complained to the Council on the 16th April. She complained that Mrs J had been told that she could not visit Mr J after he was discharged from hospital, despite him being at the end of his life.
A month later the Council replied, acknowledging that Mr J’s observations and the discussion with the GP had not been properly recorded. It also apologised that video calls were not offered as soon as visiting was stopped in March.
Mrs F remained unsatisfied and complained again. The Council replied four months later, in September. It apologised for the delay in its response and reiterated its previous reply.
Mrs F complained to the LGSCO.
What was found
The LGO considered that the Home failed to keep proper records, which was fault. It did not properly record discussions with the GP on the 4th April, nor record Mr J’s observations prior to his hospital admission. There were no records of his discharge papers, and there were numerous daily records missing.
From the records available, the LGSCO considered that it was clear that Mr J was considered to be at the end of his life when he was discharged from hospital. The Home and Care Provider should have been aware from the 3rd April that visits could be made in exceptional circumstances as per the Government Guidance at the time. At the very least the Home were aware of this by the 8th April.
The LGO considered that it was fault for the Home not to facilitate an indoor end of life visit for Mrs J after his discharge from hospital. The Home was at further fault for not communicating clearly with Mrs J after the 8th April that a visit could be arranged.
The LGSCO only recommended that the Council apologise to Mrs J.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public.
This report is a useful reminder to consider the legal expectations around statutory guidance. This Guidance about visiting in care homes was non-statutory – ie not issued under any legislation giving it any particular status in relation to legal obligations or rights – at least not as far as care homes were concerned: they are not subject to government diktat. But a casual approach to the contents would have been regarded as poor practice by any care home on the basis that
“the weight that should be given to particular guidance depends upon the specific context in which the guidance has been produced. In particular (without intending to create an exhaustive list) I believe that it is necessary to give due regard to the authorship of the guidance, the quality and intensity of the work done in the production of the guidance, the extent to which the (possibly competing) interests of those who are likely to be affected by the guidance have been recognised and weighed, the importance of any more general public policy that the guidance has sought to promote, and the express terms of the guidance itself.”
(from Ali v London Borough of Newham [2012] EWHC 2970 (Admin))
The care homes visiting Guidance did not recognise or weigh the competing interests of those likely to be affected by the Guidance in an appropriate way, in our view, but that is said with the benefit of hindsight and not under emergency conditions.
“Statutory” guidance is a strange beast: it is not law; but it ought to be followed unless there is a good reason to the contrary.
R v Islington LBC ex p Rixon [1998] 1 CCLR 119 held as follows:
“Parliament by section 7(1) [Local Authority Social Services Act, still in force and thus applicable to the Guidance issued under the Care Act] has required local authorities to follow the path charted by the Secretary of State’s guidance, with liberty to deviate from it where the local authority judges on admissible grounds that there is good reason to do so, but without freedom to take a substantially different course.”
At the time that these events happened, guidance was coming thick and fast. Guidance on visits to care homes came out on 2 April 2020. A quick search shows that guidance also came out on at least 25 February, 13 March, 17 April, 15 June and 20 July.
A registered manager is obliged to have appropriate knowledge of applicable legislation, relevant best practice and the status of guidance in its various forms and understand the consequences of failing to take action on set requirements (Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 7). Similarly, other professionals in statutory roles must keep up to date and act lawfully.
The Covid-19 pandemic is an example of the importance for decision-makers in adult social care law of keeping abreast of changes in guidance and being able to act on them. There is no certain method of disseminating guidance through an organisation such that everyone is aware and acts on it. But it is always worth a review – individually and organisationally.
We can’t understand why the recommendation isn’t more expansive in this case because a breach of human rights is the nature of the injustice to this person, which the care home would have been liable for, if civil proceedings had been commenced – and all care homes owe human rights directly to those placed in care homes by councils, under the Act.
We do not know if the LGSCO has awarded more than an apology recommendation in any visiting case from the early days of the pandemic, but had it been us we would have recommended that the home put its insurers on notice of a damages claim. A couple was denied the chance to say goodbye here; and there was poor management or communication between the management and staff as to what they should be doing. Many reports from the LGSCO now say that inadequate regard for people’s article 8 rights – here, the visitor’s or the care home client’s – amounts to injustice and that compensation is fitting.
The full Local Government Ombudsman report of Stockport Metropolitan Borough Council’s actions can be found here.
https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-007-576