Summary: The Care Provider acted in a way that recognised Mrs B’s right to decide on a relationship with another resident. There was no fault because it applied its policy on sexuality, which in turn reflected guidance from the Care Quality Commission and respected Mrs B’s right to a private life.

The complaint

1. Mr A complains two members of staff encouraged a relationship between his mother Mrs B and another resident Mr X which was inappropriate because of her vulnerability. Mr A said he decided to move his mother following a meeting about the relationship. He says he was told at that meeting that he would have to pay for the month and interpreted that as up to the end of March.
2. Mr A wants a refund of eight days of notice fees (£1290). He says the plan was always to move his mother to a different home, but he had to do so in an unplanned way because of his concerns and this caused avoidable anxiety.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If we are satisfied with a care provider’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

5. I considered the complaint to us, the Care Provider’s response to the complaint and documents described later in this statement. Both parties received a draft of this statement and I took comments into account.

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What I found

6. The Care Provider’s policy around sexuality says

“This organisation believes that residents have the right, which is often denied to older people and to people with disabilities, to develop and maintain intimate personal and sexual relationships; to engage in sexual activity that is lawful and does not cause significant offence to others; and to enjoy pleasurable experiences and take appropriate decisions for themselves in this area of their lives. We believe that our care practice should support the operation of rights associated with sexuality, and that, where appropriate, we should help to provide the information and guidance that helps residents remain safe and healthy”

7. The policy clarifies that
• With those residents who lack capacity, it is important to remember that Best Interest Decisions, as defined within Section 27 of the Mental Capacity Act 2005 states “Nothing in the Act permits a decision on……….(b) consenting to have sexual relations”
• Residents are able to decide whom they see and do not see, and, if necessary and requested to do so, staff provide support in these decisions and protection from any personal contacts that are unwelcome or abusive
• All possible efforts are made to protect residents from any forms of sexual abuse
• The opportunity is provided for residents to discuss matters relating to their sexual relationships and activities within care-planning if they wish to, always with due regard to the need to treat these issues with confidentiality and sensitivity
• A resident requiring advice on sexual matters or personal relationships can raise the matter with any member of the care staff or management with whom they feel comfortable
• Where there are known risks or concerns, risk assessments are in place.

What happened

8. The information below is from the Nursing Home’s records, from statements by staff involved with Mrs B’s care and information from Mr A.
9. Mrs B’s son died unexpectedly around the time of the incidents of this complaint. She is described as emotionally vulnerable. Staff considered she had mental capacity to make decisions about relationships/friendships.
10. Mrs B and Mr X became friendly in February 2019 when they began siting together in the shared lounge and Mr X sent her a valentine’s day card.
11. Mr X told a member of staff he and Mrs B wanted to spend time in a different part of the building. Staff told Mr X that they could not go to the other building as it was a secure dementia unit.
12. The records indicate that when spoken to about her contact with Mr X, Mrs B was distressed at what she perceived was a lack of trust by her family. Mrs B also said that Mr X had been asked by staff to leave her room at the weekend and that this made them both angry as they had done nothing wrong.
13. Mrs B told the activities co-ordinator she and Mr X were not in a romantic relationship but enjoyed each other’s company.
14. The care plan for Mrs B said:
• Mrs B was aware that the family and staff had been talking about her relationship with Mr X. She had been invited to meet with them and with staff to discuss the issue, but declined. She was happy for staff to talk to her family about the matter
• Mrs B had had a stressful few years and was emotionally vulnerable. She was distressed that her family did not trust her and said she had done nothing wrong
• Mrs B could continue to enjoy Mr X’s company
• The family would prefer if room visits from Mr X ended at 8 pm. But this was with Mrs B’s agreement
• The family were close and supportive and wanted to be able to speak to Mrs B on the phone without Mr X being present
• Staff would promote Mrs B’s wishes with the aim of supporting her emotional welfare.
15. Emails between Mr A and the activities co-ordinator show the co-ordinator advised Mr A that Mrs B was happy for Mr X to leave her room by 8pm. The activities co-ordinator checked Mrs B had chance to have phone calls with her family in private.
16. The Care Provider did not uphold Mr A’s complaint saying it had put in place a care plan following the meeting with the family and staff dealt with the issue appropriately, ensuring Mrs B’s wishes were respected and support was available to her.
17. The activities co-ordinator told me she first became aware of the relationship between Mrs B and Mr X in February 2019 when she observed Mrs B talking to him. She checked Mrs B was happy and she was. They were ‘snuggled up’ together. She reported it to the member of staff in charge and he also noted Mrs B appeared relaxed and comfortable. The activities co-ordinator told me

“During the development of the relationship between Mrs B and Mr X, my priorities were to support Mrs B to make and implement considered decisions about how this relationship would develop and encourage her to engage her family in this relationship. The same as it would be for any other residents, another imperative was to respect all parties right to privacy and autonomy. I also kept a close watch on how this relationship would impact on existing relationships Mrs B had with other residents and on her social activities. Whilst I was wary that Mr X might monopolise Mrs B’s time, this was far from the case and not only did Mrs B continue with her normal activities but she enjoyed having a person to whom she could tell all her doings, her mood seemed lifted after Mr X and she had spent time together”

18. The activities co-ordinator also told me:
• She spoke to Mrs B in February because Mrs B’s family were unhappy about Mrs B and Mr X spending time in a different part of the home and she (the activities co-ordinator) thought it was a romantic friendship.
• Mrs B’s family assumed that staff could or would tell Mrs B and/or Mr X what they were or were not allowed to do.
• She told the family that because both had mental capacity to decide on a sexual relationship, they had a right to do so, but she thought it unlikely that either intended this.
• She tried to reassure Mrs B that her family was concerned about her. But Mrs B was distressed because she felt her family did not trust her
19. The occupational therapist told me she met with the activities co-ordinator and the nurse. They discussed the relationship between Mrs B and Mr X. The activities co-ordinator had met with Mrs B and Mrs B told the activities co-ordinator she would speak to her about the relationship if she needed support. There was no encouragement by staff of the relationship and residents were at liberty to form friendships and relationships. Both residents had mental capacity to decide for themselves.
20. The registered manager told me:
• She spoke to Mrs B about the relationship and Mrs B told her it was about companionship and she liked having someone to chat to
• After meeting with the family, they agreed a care plan which she shared with the family.
• The intention as to keep the situation under review. But Mr A then said he had arranged for Mrs B to look at a different care home.
• He told Mr B four weeks’ notice would be need to be given and paid for (although the contract said six weeks, he said four weeks as a gesture of good will).
21. Commenting on a draft of this statement, Mr A told me:
• Staff were facilitating a relationship that was more than a friendship. Mrs A told family she only wanted friendship and nothing more intimate
• Staff raised the subject of sexual contact and said this might be a possibility and said it was a romantic relationship.
• The same staff went back on what they had previously said and at a meeting said it was a normal friendship
• Family did not assume staff could tell Mrs A and Mr X what to do. Staff said in the meeting they had put in place a plan to protect Mrs A
• They did not receive care plans or minutes of meetings.

Was there fault?

22. I consider there was no fault in the way the Care Provider responded to Mr A’s concerns about Mrs B’s care. It respected Mrs B’s rights to have private relationships and acted in line with guidance.
23. I have taken into account that:
• The Care Provider had a policy on relationships which it applied. This policy and the actions of staff promoted Mrs B’s autonomy. This was in line with guidance from the Care Quality Commission set out in paragraph seven
• The activities co-ordinator sought Mrs B’s wishes and feelings and had a series of discussions with her
• Staff met with the family to discuss their concerns and put in place a care plan which recognised their concerns but sought to support Mrs B and promote her wishes.
24. Mr A said in his complaint that the Care Provider did not address safeguarding issues. I do not consider this was a safeguarding matter. Staff assessed Mrs B to have mental capacity to make her decisions about the relationship and supported her to do so. There was no issue of actual or potential abuse.
25. Mr A said in response to a draft of this statement that it was staff who brought up the subject of a potential sexual relationship between Mrs B and Mr X, when Mrs B’s stated intention all along was a friendship. I see no fault in this. It was part of the staff role to be open and supportive to Mrs B. Sexual relations are a normal potential part of life for every adult who can consent to them, whatever their age or wherever they live. Mrs B’s intentions may or may have been friendship or something else, but I see no fault by the Care Provider’s staff in having a discussion. I am satisfied staff took appropriate steps to discuss the situation with the family and with Mrs B and to support her stated wishes. I do not share Mr B’s view that staff were facilitating a type of relationship that went against Mrs B’s wishes. There was no fault.

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Final decision

26. The Care Provider acted in a way that recognised Mrs B’s right to decide on a relationship with another resident. There was no fault because it applied its policy on sexuality and relationships, which in turn reflected guidance from the Care Quality Commission and respected Mrs B’s right to a private life. As I have not upheld Mr A’s complaint, there are no grounds for me to recommend the remedy he seeks.
27. I have completed my investigation.

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Parts of the complaint I did not investigate

28. Mr A told me in response to a draft of this statement that the family had not seen care plans or had minutes of meetings. While this would be fault if Mrs A had consented to her family seeing her personal information, it is not an area that he previously complained about and so I have not addressed it in my investigation.

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Investigator's decision on behalf of the Ombudsman