Summary: Mrs D complained the Care Provider was at fault when it cared for her mother Mrs E, who contracted COVID-19 when in its care. We do not find fault in the care Mrs E received or the decision of the Care Provider to stop visits to its homes. But we do have some concerns about the Care Provider’s disclosure of information regarding infections. We also find there was some poor communication between Mrs D and the Care Provider after Mrs E passed away and in its handling of her complaint. This has led the Care Provider to make apologies to Mrs D. It has agreed to also put a note on its files regarding the finding of this investigation in accord with Mrs D’s wishes.

The complaint

1. I have called the complainant ‘Mrs D’. She complains that Barchester Healthcare Homes Ltd (‘the Care Provider’) was at fault when it cared for her mother ‘Mrs E’ who contracted COVID-19 when in its care and who later died of that illness. In various communications with the Care Provider and this office, Mrs D has complained:
1. she did not have the opportunity to visit Mrs E at Westvale House (‘the care home’) in the weeks before Mrs E’s admission to hospital with COVID-19 despite the Care Provider having previously facilitated a ‘window visit’. That during those weeks the Care Provider also did not facilitate sufficient video contact between Mrs D and Mrs E; nor communicate effectively regarding Mrs E’s wellbeing;
2. that during those weeks the Care Provider did not tell Mrs D of the extent of an outbreak of COVID-19 affecting residents at the care home.
3. that she had concerns the Care Provider did not always provide effective care for Mrs E, especially after mid-April 2020 when Mrs D reported her mother experiencing higher levels of anxiety;
4. that following Mrs E’s passing, the Care Provider made inaccurate statements regarding employees at the care home attending Mrs E’s funeral when they did not do so; the Care Provider should have checked this before writing to Mrs D; nor did the Care Provider pass on any condolences to Mrs D until after she complained.
2. Mrs E passed away in hospital from COVID-19. Mrs E says as a result of the Care Provider’s actions she was caused additional distress, especially due to the Care Provider’s insensitivity in respect of point d) above.

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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. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for him or her. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act 1974, section 26A or 34C)
5. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether care providers followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

8. Before issuing this decision statement I considered:

• Mrs D’s written complaint to the Ombudsman and any supporting information she provided including that gathered in a telephone call with her;
• correspondence between Mrs D and the Care Provider pre-dating our investigation where Mrs D set out her complaint and the Care Provider gave its response;
• additional information provided to us by the Care Provider in reply to our written enquiries;
• relevant legislation and guidance as referred to in the text below.

9. Mrs D and the Care Provider also had the opportunity to comment on a draft of this decision. I took account of their comments before finalising this statement.

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What I found

Relevant Law and Guidance

Fundamental Standards of Care

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. Of relevance to this complaint are:

• Regulation 12 – “Safe care and treatment”. This regulation aims to prevent people from receiving unsafe care and treatment and prevent avoidable harm or risk of harm. Providers must assess the risks to people's health and safety during any care or treatment. Guidance says providers must do what is reasonably practicable to mitigate risks.
• Regulation 17 – ‘Good governance’. This regulation requires providers have systems and procedures in place to meet other regulatory requirements. Providers must also maintain accurate, complete and detailed records for each person using the service.
• Regulation 20 – “Duty of candour”. This says that providers should be open and transparent with people who use their services and other relevant persons acting lawfully on their behalf. The CQC says the regulation promotes openness and honesty at all levels as an integral part of a culture of safety that supports organisational and personal learning. It says care providers should apologise when things go wrong.

Visiting arrangements in care homes during the COVID-19 pandemic

11. Until 13 March 2020 the Government published guidance saying “there is no need to do anything different in any care setting at present” in response to COVID-19. However, it then withdrew that guidance and on 16 March 2020 the Prime Minister announced “now is the time for everyone to stop non-essential contact with others and to stop all unnecessary travel.”
12. On 20 March 2020 the Government said everyone should stay at home and “only travel if absolutely necessary”. Guidance published on 22 March said everyone should “avoid gatherings with friends and family. Keep in touch using remote technology such as phone, internet, and social media”.
13. A Frequently Asked Questions document published by the Government on 29 March provided the following advice: “Q. Can I visit elderly relatives? A: No, you should not be visiting family members who do not live in your home. You should keep in touch with them using phone or video calls.”
14. On 2 April 2020 the Government issued guidance for care homes. This said family and friends should be advised not to visit care homes, except next of kin in exceptional situations such as end of life, in which case visitors should be limited to one at a time.

Barchester Care Home Policies during the COVID-19 pandemic

15. On 10 March 2020 the Care Provider placed the following announcement on its website: “The UK remains in the containment phase of tracing coronavirus cases to prevent it spreading in the community. Barchester are committed to ensuring that we keep all our residents, patients and staff as safe as possible and as a preventative measure we are asking visitors, including family members and friends, to stop routinely visiting our care homes and hospitals until further notice. We have not taken this decision lightly, and appreciate that this may cause some discomfort, but feel that this is a necessary step to take […].”
16. On 17 March 2020 the Care Provider modified this policy. It sent a letter to named contacts of residents which said it was now having “no visitors except healthcare professionals”. It said in “exceptional circumstances” it may allow a “controlled visit”. The Care Provider said it had now set up Skype video calls in all its care homes and that its staff would do all they could to support residents to keep in touch.
17. In addition, the Care Provider has told us that it introduced a range of measures to respond to any COVID-19 outbreaks in its homes and to try and prevent spread. These included:

• keeping residents with COVID-19 in isolation and providing barrier nursing;
• ensuring care home staff received advice via its Director of Nursing; providing staff with regular updates;
• increased cleaning within care homes; use of personal protective equipment and regular handwashing and sanitising;
• temperature checks for staff and visitors.

18. The Care Provider says that it also set up a dedicated customer contact helpline for relatives to call if they had concerns about residents. It also helped its care homes set up video contacts but as this was a new approach it sometimes took time to set up calls.
19. The Care Provider adopted a policy of advising contacts of residents if there was a COVID-19 case in one of its care homes. A standard letter was sent which set out the measures being taken by the Care Provider to try and limit any spread.
20. The Care Provider would also alert named contacts of residents if they fell ill or had suspected symptoms of COVID-19. But its policy was not to share details with named contacts such as the number of cases in a care home or deaths. It says this would breach the data protection rights of individuals within the care home. Commenting further on this policy during this investigation the Care Provider has said:

• “We were mindful that even to share data in an anonymised format could potentially lead to astute persons in receipt of this information being able to identify who those individuals were”; and
• “We believe it was right to allow families who had lost a loved one to grieve without being identified in the community and by the media, and it would have added a lot of additional strain on our teams and residents and families if this information was disclosed”.

Key facts

21. Mrs E moved into the care home in January 2019. She had various physical and mental health conditions including suffering from anxiety. Mrs E needed some personal care with help provided in matters such as washing and dressing. However, Mrs E still retained a high level of independence and could communicate when she had needs. Mrs E had her own mobile phone and Mrs D would speak to her regularly on this.
22. On 17 March 2020 the care home asked relatives to stop visiting the care home in line with the Care Provider’s national policy, although Mrs E did not receive that letter. In the week before Mrs D had two ‘window visits’ to Mrs E, who lived on the ground floor. Mrs D says care home staff witnessed those visits and did not try to prevent them. However, they later suggested these visits could not continue because they would compromise the privacy of other residents whose rooms were nearby.
23. On 9 April 2020 the care home reported its first case of COVID-19. It wrote to all named contacts of residents on 13 April to tell them. Mrs D received that letter on 20 April 2020.
24. Care notes show that around mid-April 2020 staff recorded a change in Mrs E’s presentation. Throughout March and until that point, notes had recorded Mrs E often being in a good mood or settled. But around this time staff noted Mrs E became distressed at times and unsettled. The notes indicate Mrs E was more anxious and asked staff for more help with her personal care. Mrs D says it was around this time Mrs E became anxious about the spread of COVID-19 and that care workers would deliver care wearing masks and/or were unfamiliar to her. She says Mrs E also reported carers not attending to deliver personal care and shouting at her. Mrs D reported trying to speak to care home staff around 17-18 April 2020 but that her calls were not returned. She says she tried not to call the care home often because she recognised the pressure it was under.
25. The notes recorded Mrs E saying she felt physically unwell on 25 April 2020. The notes do not describe her symptoms but say the nurse on duty was told. The next day staff said Mrs E reported “feeling horrible” and that she spent most of the day in bed. On 27 April the Care Provider noted Mrs E remained ‘out of sorts’, reporting a headache and feeling sick.
26. On 28 April Mrs E continued to report feeling unwell and the care home recorded speaking to Mrs D who it reported was upset. The care home says on this day it also contacted Mrs E’s GP who advised that it continue to monitor her.
27. The daily care notes do not record how Mrs E felt on 29 April but indicate she received a normal range of support with personal care and was mobilising. The Care Provider later summarised in a response to Mrs D’s complaint that “no concerns were noted during the day or night shift”.
28. On the afternoon of 30 April, the Care Provider recorded a significant change in Mrs E’s presentation. She had developed a chesty cough and had a temperature. At this point the Care Provider called an ambulance and informed Mrs D.
29. Mrs E entered hospital the same day. She later tested positive for COVID-19. Mrs E passed away in early May 2020.
30. In terms of communications with Mrs D, the Care Provider reported speaking to her on 22 April 2020 via its dedicated helpline. The case notes also document a call Mrs D made to the care home on 20 April and the conversation on 29 April I referred to above. The Care Provider accepts there may have been other occasions in the weeks before Mrs E’s hospital admission when Mrs D spoke to the care home and this is not recorded. It also accepts she may have had difficulty speaking to staff because of the pressures they were operating under in the early weeks of the pandemic. The Care Provider has said that it has no record of Mrs D making window visits which would have been contrary to policy after 17 March 2020. Mrs D says that she spoke to Mrs E once via Skype and this was in early April 2020. The Care Provider does not dispute that account.

Mrs D’s complaint and responses from the Care Provider

31. At the end of May 2020 Mrs D made a complaint to the Care Provider. She raised the following matters:

• that she was unhappy she had no had more opportunity to visit Mrs E. Mrs D believed the care home could have facilitated window visits. Mrs D said the Care Provider had offered to provide video calls to relatives but she had just one video call with Mrs E; when she had rung the Care Provider on occasion calls went unanswered;
• she had concerns about whether the Care Provider met Mrs E’s needs after mid-April 2020 when Mrs E appeared distressed. Mrs D said when she spoke to Mrs E on the telephone she reported the Care Provider not assisting with some of her care needs. Mrs D also had concerns that a care assistant spoke sharply to Mrs E not recognising when she was anxious;
• she questioned if the Care Provider might have done more to stop the spread of COVID-19 within the care home. Mrs D knew from 20 April 2020 there was one case of COVID-19 in the care home. She questioned if the Care Provider did enough to then stop the virus spreading through the home. She said at no point had the care home informed relatives of how serious the spread of infection was;
• she had not received any expression of sympathy from the care home manager after Mrs E passed away. She recognised and thanked other members of staff for coming out and paying respects on the day of Mrs E’s funeral when the cortege paused outside the care home.

32. The Care Provider gave its initial reply to Mrs D in late July 2020. I summarise its reply as follows:

• that it followed national guidance when it closed care homes to visitors on 17 March 2020;
• that it had put in place “stringent infection protocols” in line with what I described at paragraph 17 above;
• that it could not disclose details of how many cases of COVID-19 took place at the care home because of data protection concerns;
• it provided some detail around the care provided to Mrs E at the end of April 2020; based on its case notes.

33. Mrs D then spoke to the Manager who had provided the initial reply to her complaint on behalf of the Care Provider. Mrs D still had concerns and followed her conversation with a further letter. Mrs D said the Care Provider’s response had not:

• addressed her concerns around the personal care given to Mrs E;
• the lack of personal contact she had received from the care home manager after Mrs E passed away;
• considered how care notes had recorded ‘no concerns’ for Mrs E just a day before she entered hospital.

34. The Manager then provided a second reply to Mrs D in mid-August 2020. I summarise this as follows:

• that care records indicated Mrs E always received personal care although it recognised these could be more detailed in places and it understood Mrs D’s concern about the record on the day before Mrs E entered hospital;
• that it would not tolerate staff shouting at any resident; it recognised Mrs E had become anxious because of concerns about COVID-19 and by staff wearing masks;
• it recognised some call backs to relatives did not happen because of the pressure on the home in April 2020;
• it reiterated the decision to stop window visits was taken to be consistent with national guidance and applied across all the Care Provider’s care homes;
• it explained the care home manager did not attend Mrs E’s funeral but implied other staff had done so; it was sorry the manager had not met with Mrs D subsequently; the care home had posted a condolence card and was sorry if this was not received.

35. Mrs D escalated her complaint. She remained unhappy with the Care Provider’s position around visiting and its response when Mrs E passed away. Mrs D also said the Care Provider’s reply was factually inaccurate. It had implied other care home staff attended Mrs E’s funeral when this was not the case.
36. In early September 2020 Mrs D received a final response from the Care Provider. It reiterated its previous replies around why it had restricted visits and that it could not share more data on COVID-19 cases in the care home. It apologised again if Mrs D did not receive a condolence card and that no staff could attend Mrs E’s funeral. It said the note of Mrs E’s presentation the day before she entered hospital could have been better expressed.
37. Mrs D wrote further to the Care Provider after this date. She was particularly concerned the Care Provider appeared to have received false information that staff had attended Mrs E’s funeral. She also remained unhappy at how long she had to wait to receive contact following Mrs E’s death and the apology from the Care Provider.
38. In further comments in response to our enquiries, the Care Provider has recognised that in answering Mrs D’s complaint it had apologised for no-one attending the funeral but that it had not apologised for its misunderstanding that staff had attended; it therefore wanted to apologise for the misunderstanding also. Mrs D has said she wants the Care Provider to put a note on its files that its letter of August 2020 contained a mistaken assumption. Mrs D has asked that it be noted that at no point did she complain that care home staff did not attend Mrs E’s funeral.

Findings

The complaints about visiting and communications

39. I do not consider the Care Provider at fault for the policy it introduced restricting visits to its care homes effective from 10 March and then modified on 17 March 2020 to further restrict such visits.
40. On 10 March the Care Provider introduced a policy potentially out of step with guidance that was then current and which told providers they should not change procedures because of COVID-19. However, the national picture was changing rapidly and it was anticipated the Government would take steps to limit transmission of cases, including imposing certain restrictions on day to day life such as visiting relatives in care homes.
41. The advice issued by Government in a series of announcements and guidance from 16 March onwards made clear that it did not see routine visits by relatives to care homes as being “essential”. There was no exception made for ‘window visits’. I find nothing incompatible therefore between the Care Provider’s actions and Government guidance.
42. I am unable from the records I hold to come to an exact picture on the level of communication between the care home and Mrs D after the visiting restrictions came into force. I understand how distressing these weeks would have been for Mrs D as her mother became more anxious at the spread of COVID-19 and its impact on the care home. I am satisfied there were communication difficulties as Mrs D describes. The Care Provider acknowledges that in the early weeks of the pandemic, when it was coping with exceptional pressures and new ways of working, this was likely. I find it was reasonably seeking to overcome such difficulties by setting up a dedicated helpline and facilitating video calls.
43. I can understand Mrs D’s distress that she was not able to communicate more by video with Mrs E. But I do consider the Care Provider at fault for not doing more to facilitate this. I have reached this finding given the records indicate that overall there was a reasonable level of communication between Mrs D and the Care Provider. In particular it let her know when Mrs E’s health deteriorated. This is also after taking account that Mrs D continued to speak directly to Mrs E by telephone. I can understand if this led the care home to think the need to facilitate more contact by video call was less pressing than for residents without such contact.
44. Turning to events shortly before Mrs E was admitted to hospital I am satisfied the Care Provider acted in accord with its policy when it told Mrs D of Mrs E’s suspected symptoms. Mrs E said she felt unwell for several days before then but her symptoms do not appear to have corresponded with what was understood, at the time, to be symptoms of COVID-19. I also understand that Mrs D and Mrs E still spoke on the phone and so Mrs D had understanding of her mother’s general wellbeing.

The complaint about the extent of information given to Mrs D

45. In considering the extent of information shared between the Care Provider and Mrs D around the outbreak of COVID-19 in the care home I do have some concerns with its approach. I am not satisfied the ‘duty of candour’ (Regulation 20) is directly engaged as I find this refers to situations when something goes wrong in the care of the user of services. In those cases, the Care Provider must be open and transparent with relatives. But I do not find the Regulation placed the Provider under any obligation to do more than inform relatives where the user of their services fell ill. Which was the Care Provider’s policy here.
46. However, the Regulation does reinforce the general expectation on Care Providers to act openly and transparently. That is also a principle of good administrative practice which we expect providers to follow. I accept the Care Provider had to balance this against not wanting to reveal information which could compromise the anonymity of a resident who had a COVID-19 infection or one who had died of such an infection. So, I would not have necessarily expected the Care Provider to give detailed or highly specific information about the spread of infection in the care home. But it could have struck a middle ground in indicating the extent of any infection. I think this possible, especially in a care home of around 60 residents, where personal data would be less likely to be compromised by saying that ‘x’ number of residents or staff contracted the illness or that ‘y’ number of residents passed away. I also note the Care Provider maintained its position even some months after the initial outbreak where Mrs E fell ill. I consider the passage of time also relevant in deciding how much information it could disclose.
47. I have therefore considered making further enquiries in this area. However, in the event I have decided that there is little merit in doing do at this time. This is because the CQC has now released data on outbreaks in individual care settings from the beginning of the pandemic. This mitigates any injustice Mrs D may have been caused by the Care Provider’s guarded responses to questions about the numbers of cases at the care home.
48. I have also considered if the release of data in this case should lead us to make more enquiries of the Care Provider about its infection control measures in force around the time Mrs E contracted COVID-19. On balance I have decided we should not. This is because I do not consider investigation is likely to criticise the Care Provider for having an inadequate policy at the time. Nor is it likely to establish any breach of the policy. It is sadly the case that infections spread in many care homes despite care providers best efforts at a time when there was little testing in place and less knowledge about the spread of infection.

The complaint about standards of care

49. Turning to the care Mrs E received in the last two weeks she was at the care home, I have some concern the records are not detailed enough in places to get a clear view of how much anxiety she experienced nor the extent to which she presented as unwell in her final days there. However, there is also nothing that jumps out in the record as being seriously inadequate. Care notes do record information for example about Mrs E’s food and fluid intake; that she continued to receive personal care and so on. While not best practice therefore, the record keeping is not so poor that we find fault or suggest the Care Provider failed to comply with Regulation 17.
50. I recognise that when Mrs D spoke to Mrs E she indicated some delays in receiving her personal care and there is no reason to doubt that account given the pressure the care home was operating under. However, I do not consider this evidence alone is sufficient, when considered alongside the care records, to find fault with the level of care Mrs E received or that Regulation 12 was not met.

The complaints about events after Mrs E passed away and the Care Provider’s response

51. Finally, I have considered Mrs D’s concerns about the Care Provider’s response to Mrs E passing away and then its complaint handling. On the former it would appear the Provider wanted to pass on condolences to Mrs D but that its initial card was not received. I cannot say that was due to its fault as items can go missing in the post because of errors on the part of the postal service also. However, I do recognise this would be upsetting for Mrs D and her upset was compounded by the lack of any personal contact from the care home manager.
52. I find that in response to her complaints the Care Provider did recognise this upset. It offered suitable apology but then was at fault when sending a reply that did not pay sufficient attention to detail. Mrs E’s funeral would clearly be a significant and emotional event for Mrs D. So, to get the details wrong about who attended added more upset for Mrs D. It is right the Care Provider has offered a further apology for its misunderstanding. I would also welcome it has agreed to Mrs D's suggestion that it place a note on the letter of August 2020 to detail that it contained an incorrect assumption. I consider these responses a proportionate response for any hurt caused to Mrs D.

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Final decision

53. In summary therefore for the reasons set out above I propose to find the complaint about events after Mrs E passed away should be upheld. But I consider in its responses to the complaint and our enquiries the Care Provider has acknowledged fault and made a suitable apology. As the Care Provider is also willing to mark its records as Ms D suggests then I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman