Summary: Mrs X complained about the level of care provided to her father, Mr Y, in the last two weeks of his life during the COVID-19 pandemic. The Care Provider failed to keep a proper record in the last hours of Mr Y’s life, causing uncertainty for Mrs X about what happened around the time of his death. The care was provided on behalf of the Council and therefore the Council will apologise for this fault.

The complaint

1. Mrs X complained about the level of care provided to her late father, Mr Y, in the last two weeks of his life. In particular, Mrs X was concerned about:
1. the care provider’s response to the COVID-19 pandemic;
2. a lack of communication with her around the time Mr Y died, which meant she was prevented from being with him when he died; and
3. a lack of transparency in its complaints response.
2. Mrs X said the failings added to the distress the family suffered as a result of their loss.

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The Ombudsman’s role and powers

3. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company such as a care home is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
6. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
7. 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 the council and care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
8. If we are satisfied with a council’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)
9. 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

10. I considered:
• the information provided by Mrs X and the Council, including relevant records from the Care Provider;
• relevant law and guidance, as set out below; and
• our guidance on remedies.
11. Mrs X and the Council had an opportunity to comment on my draft decision and I considered their comments before making a final decision.

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What I found

Relevant law and guidance

COVID-19 guidance

12. The Government issued guidance for care homes in March 2020, which was updated on 6 April 2020. This said:
• Care workers who had COVID-19 symptoms should follow NHS advice. If they are advised to self-isolate at home they should follow the stay at home guidance.
• If an individual being cared for has symptoms of COVID-19, the risk of transmission should be minimised through safe working procedures. Staff should use personal protective equipment (PPE) for activities that bring them into close personal contact, such as washing and bathing, personal hygiene and contact with bodily fluids. Aprons, gloves and fluid repellent surgical masks should be used in these situations.
• If neither the individual nor the care worker have symptoms of COVID-19 then no PPE was required above and beyond good hygiene practices.
13. Also in early April 2020, Public Health England issued its Interim Resource Pack for Care Homes. This stated care providers should take the following action in response to a suspected or confirmed outbreak:
• If a resident became ill with symptoms of COVID-19 they should be isolated for 7 days after the onset of symptoms in single occupancy rooms. Symptomatic staff should be excluded from the care home for 7 days.
• If it was not possible to isolate residents in single occupancy rooms, care providers should “cohort symptomatic cases together in multi-occupancy rooms and minimise the number of staff caring for them”.
• If possible, staff should only work with either symptomatic or asymptomatic residents.
• Care providers should allow essential visiting only during the outbreak.
14. An outbreak was defined as two or more cases with COVID-19 symptoms (high temperature and persistent cough) within a 14 day period in people who lived or worked in the care home. The outbreak was usually said to be over when no new cases had occurred in the 14 days since the last person showed symptoms.
15. On 15 April, the Government published its Adult Social Care action plan. From this point, staff were required to wear PPE whether or not the resident had symptoms of COVID-19. The Government also announced it had increased its testing capacity and said that all social care workers with COVID-19 symptoms could now access a test. It said it was committed to testing all residents prior to their admission to care homes, including following discharge from hospital and would “expand outbreak testing to include all symptomatic residents”.

Association for Palliative Medicine – COVID-19 guidance

16. The Association for Palliative Medicine (APM) issued guidance on 20 April 2020: COVID-19 and Palliative, End of Life and Bereavement care in Secondary Care. This contained guidance for cases where COVID-19 was suspected or confirmed, including:
• Relatives of the deceased were not permitted to visit after death. Families who wished to visit their loved one should be advised to contact their chosen funeral director and advised a visit may not be possible.
• Required PPE should be worn for performing personal physical care after death.

What happened

17. Mr Y was cared for by Norley Hall care home, on behalf of the Council.
18. Care records show Mr Y became unwell on 18 March 2020. He had vomited, was shaking and had a fever. The care home called an ambulance and called Mrs X to tell her it had done so. Mrs X immediately went to the care home. She noted staff were not wearing PPE, including face masks. Paramedics suspected Mr Y was retaining water and he was taken to hospital for checks. Mr Y stayed in hospital overnight and returned to the care home on 19 March.
19. Care records do not show any concerns about Mr Y’s health and wellbeing after his return from hospital until 25 March, when he was reported as being tired. He had some sores on his bottom, which the district nurse thought were caused by friction as he kept sliding down in his chair. A specialised pressure cushion was ordered for him and the district nurse recommended he rest in bed where possible to help the sores to heal.
20. On 5 April, care staff found Mr Y on the floor at the 8:30 a.m check. He had fallen from his bed and had vomited. They called an ambulance and Mr Y was admitted to hospital for checks, returning to the care home the following day.
21. On 16 April, the care records show Mr Y had a temperature of 36.2, a sore throat, was coughing and had some breathing issues. A GP saw him via a video call and diagnosed COVID-19. The care home called an ambulance. The paramedics assessed Mr Y and spoke to the GP. They decided nothing could be done medically at that time and that Mr Y should be nursed in the care home. Mr Y’s grand-daughter, Ms Z, visited him and the care home discussed end of life care plans with her.
22. Care records show Mr Y’s condition deteriorated from this point. The care home spoke to Mrs X on 20 April. It told her she could visit Mr Y because he was now receiving end of life care. On 22 April, the care home collected end of life drugs for Mr Y but the district nurse advised not to start administering them straightaway because Mr Y was settled. The care home spoke to Mrs X around midnight to explain the situation and that a family member could visit for an hour. Ms Z came shortly afterwards to sit with Mr Y for an hour and returned later on 23 April for a further hour.
23. Care records show staff checked on Mr Y regularly during the night of 23 April and the morning of 24 April. At 02:12 he was recorded as being asleep and at 04:29 he was recorded as “more settled”. The care home said there was a check around 6 a.m. when staff checked his pad but this had not been recorded. Checks on other residents around 06:00 were not recorded until 07:30. Care staff said they checked on Mr Y every 20 minutes from 06:00 until he died at around 07:30.
24. Mrs X telephoned the care home at 06:00 on 24 April but the care home has no written record of the call. Mrs X said a staff member told her Mr Y had been “gasping quite a bit” during the night, that they would check on Mr Y and call her back with an update. Care staff recalled a call from Mrs X, which they said was a general enquiry. No-one called Mrs X until 7:30 a.m. by which time her father had died. She says if she had been asked to visit when she rang at 06:00 she could have been with him when he died.
25. Mrs X complained in early June 2020. She asked a number of questions about the morning Mr Y died, including:
• Why the care home had not called back that morning as promised;
• Why it had not given her the chance to see him in his final moments;
• Whether Mr Y had been alone when he died; and
• Why, after his death, the room was locked and Mr Y’s grand-daughter, Ms Z could not see him.
26. Mrs X also raised concerns about the weeks leading to his death, including questions about changing visiting arrangements, use of PPE, use of a communal room for those suspected of having COVID-19 and restricting staff to specific areas within the care home to prevent the spread of infection.
27. The care home responded in mid July. It said:
• It had no record of Mrs X’s 06:00 call on 24 April but at the time the care home was dealing with a number of residents whose condition had deteriorated so staff prioritised caring for them over contacting family members.
• Mr Y did not die alone and his final moments were dignified and peaceful.
• It was sorry Mrs X could not be with him when he died but she had been advised on 20 and 22 April that death was expected and that she could visit. Mr Y’s condition had deteriorated rapidly between the checks at 04:30 and 06:00 on 24 April.
• Mr Y’s room was locked after his death in line with Government Guidance for deaths from COVID-19. Only the undertakers, wearing PPE, could enter the room for 72 hours, following which the room was deep cleaned.
• The visiting arrangements had changed in line with Government Guidance and that families were kept informed of the changes.
• On18 March, there was no requirement for PPE to be worn where residents did not have symptoms. It explained the changes to the Guidance after that and how this was implemented, including providing PPE for visitors.
• It said those residents who had COVID-19 symptoms or who had tested positive for COVID-19 were cared for in a separate unit by staff who did not work with other residents. As a result it had successfully prevented the spread of infection to other parts of the care home.
28. I have also seen records to show the care home made several attempts to discuss Mrs X’s concerns by telephone and offered a video call, which she declined.
29. Mrs X was unhappy with the response and complained to the Council in mid-August. She raised further issues, including:
• Questions about the reasons for changes to visiting arrangements;
• Why the death certificate said the cause of death was COVID-19 but Mr Y had not been tested; and
• Why the care home sent a generic email to the family about visiting arrangements after Mr Y died.
30. The Council responded in September 2020. It said:
• From 13 March 2020 the care home restricted visits to one nominated family members visiting once each week. From 18 March 2020, the care home stopped allowing visits except in exceptional circumstances. The escalation was informed by the fast-paced changes in Government guidance in the period to the start of the national lockdown on 23 March 2020.
• PPE was not used at the time Mr Y died unless staff were supporting an individual who either had symptoms of COVID-19 or was confirmed as having the virus. This was in line with the guidance at that time, although it later changed.
• The use of face masks, aprons and gloves, when worn appropriately and coupled with regular hand washing, was appropriate and proportionate. Additional PPE was needed in certain circumstances, such as where staff were dealing with challenging behaviour, such as spitting. It could not say whether PPE was being worn appropriately at all times because this was not something that was proactively or comprehensively recorded in care homes in its area.
• The care home said it adopted a zoning system on 12 April 2020 when the first resident was identified as having symptoms of COVID-19. This ensured that residents showing symptoms were kept separate from those who did not. Specific staff were deployed to support those with symptoms. It said the zoning of residents and staff effectively prevented the spread of infection from the upper floor (housing those showing symptoms) and the lower floor (housing those without symptoms).
• The care home accepted Mr Y was using a shared space with others who had COVID-19 symptoms or had tested positive for the virus. It said this space was used for those fit enough to leave their rooms and was set up to allow for social distancing. The Council acknowledged it was better, where possible, to isolate such residents in their rooms and said it would be discussing this further with the care home.
• The care home record showed Ms Z had visited Mr Y on the evening of 23 April 2020. On the morning of 24 April, staff had checked on Mr Y at 00:27 at which point Mr Y had a temperature of 38.3 and was having difficulty swallowing. He was given paracetamol. Staff checked again at 02:12 and 04:29 and at both times he was reported to be settled and asleep. There is no record of the call with Mrs X at 6 a.m. The final record shows Mr Y was checked “shortly after and passed away at 07:30”. The Council said it understood Mrs X’s distress at not being with her father in his final hours but there were no further records to shed light on what happened between 6 and 7:30 a.m. It confirmed Mr Y was alone when he died.
• When a resident died with suspected COVID-19 the care home ensured the room was locked for a period of 72 hours prior to a deep clean and only opened by the undertaker collecting the deceased. The Council confirmed the restriction on allowing relatives to collect personal items was in line with guidance at the time. It was not able to identify any guidance on viewing a loved one after their death.
• The Council said it had made recommendations to the care home to improve its services. These included establishing a single point of contact for communication about each resident, reminding staff of the importance of effective recording, ensuring that after a death contact details were immediately removed from distribution lists, and establishing the wishes of residents and family members through end of life planning.
31. Mrs X was unhappy with the Council’s response, which she said left her with more questions. In particular, she was concerned that the minutes between her telephone call to the care home at 6 a.m. and the care home’s call to say her father had died were not accounted for. She also considered it was unacceptable for her father to die alone. She said there was a distinct lack of empathy, compassion and a total disrespect for a bereaved family.
32. In response to my enquiries, the Council provided relevant records and a statement from the Care Provider. It said:
• Due to the COVID-19 pandemic it was not able to visit the care home to investigate Mrs X’s complaint and review the records in line with its usual practice. It has since visited the care home to check its recommendations had been implemented and to verify the information used in its complaint response. However, it acknowledged that the initial complaint response from the Care Provider and the Council could have been more “forensic” particularly in relation to the hours around Mr Y’s death.
• Those residents who had tested positive for COVID-19 or had symptoms were cared for in a separate unit within the care home. Care staff worked in cohorts where possible, depending on staffing capacity, and there was a system in place to prevent the spread of infection.
• The care home was caring for residents with dementia, some of whom would wander and it was not possible for them to isolate in their rooms. Therefore, the care home allowed them to use a communal room, which was only used by those who had tested positive for COVID-19 or had symptoms. After further discussions with the care home after issuing the complaint response, it accepted the reasons for using a communal room. An Infection Prevention and Control audit was later carried out, which confirmed this approach was acceptable. (I have seen a copy of the audit).
• It was unclear why the care home had referred to a deterioration in Mr Y’s condition after the 04:30 check on 24 April, since this was not supported by the accounts provided by care staff, who were on duty at the time, to the care home manager. Given how proactive the care home had been in seeking medical interventions for Mr Y, it was likely that if he had deteriorated in that period the care home would have sought medical intervention and there was no record of an outgoing call to the district nursing service. In the absence of records between 04:30 and 07:30 it was not possible to reach an evidence-based conclusion about what happened. It would appear from the records that he may have died alone but the reports of care staff and care home practice up to that point would indicate that was not the case. “We apologise sincerely for the upset this lack of recording at such a significant time has caused [Mrs X] and her family”. The care home had taken steps, including training and supervision, to ensure effective recording, and now reviews the quality of recording as part of its monthly review of care plans.
• The care home had since reviewed its process for end of life planning, including how it communicates with families. To improve its communications with families generally, it had also introduced a system to communicate with a single contact for each resident, and was developing a central communications officer role and a new client management system. It had also made changes to its processes to ensure family contact details were removed from distribution lists immediately following the death of a resident to prevent families receiving general communications after their loved-one had died.
• Since this complaint, the care home had also introduced a COVID-19 champion to ensure temperatures were checked (and records kept) and PPE was used appropriately.
33. The Council also asked us to note that the events complained about occurred very early in the COVID-19 pandemic, “at a time when there was a great deal of uncertainty, frequent changes to national guidance and a lot of anxiety among staff teams all of which, along with coping with COVID-19 infections and sometimes deaths, placed significant pressures on care homes nationally”.

My findings

34. I acknowledge the events complained about occurred at the start of the COVID-19 pandemic with the associated challenges the Council has mentioned. I also acknowledge the difficulties faced by the Care Provider and the Council in responding to Mrs X’s concerns as a result of the pandemic.

Events around Mr Y’s death

35. Mrs X’s main concerns were about not being with Mr Y when he died and that he may have died alone. The Council accepted there were gaps in the care home’s records between 04:30 when Mr Y was recorded as “sleeping” and 07:30 when he died. As a result, we cannot be certain about what happened during that time period and whether there was someone with him when he died.
36. That said, the care records do show the care home had been proactive in seeking medical assistance and advice, including obtaining end of life medication on 22 April and seeking advice from the district nursing service on when to start administering that medication. The care records also show Mr Y was checked regularly throughout the night in the period from March 2020 with a routine check at 06:00 and care staff reported they checked his pad at 06:00 on 24 April. Therefore, on balance, I find there was a check at that time, although there is no written record of it. Care staff said they then checked on Mr Y every 20 minutes until he died at 07:30 but again there is no written record of this. There was also no written record of the telephone conversation with Mrs X at 06:00.
37. I acknowledge the difficulties the care home was experiencing at this time, during which it was in “Outbreak Status” as defined by Public Health England, and with several residents’ conditions deteriorating. I also accept the need for care staff to prioritise their time and efforts in caring for residents rather than providing updates for families. It was also reasonable for them to prioritise their caring tasks over the recording of such tasks. However, I would have expected a record to be made, even if this was at 07:30 when Mr Y died, to reflect what had happened during the previous hour and a half and whilst recollections were still fresh. The lack of any record for this period of time was fault. This fault leaves Mrs X and other members of Mr Y’s family uncertain about what happened around the time of his death and whether anyone was with him when he died.
38. The care home has since taken appropriate steps to ensure record-keeping is improved and now reviews the quality of record-keeping monthly. Therefore, I do not need to recommend further action in this respect.
39. The Care Provider has also taken steps to improve the way all its care homes communicate with families and undertakes end of life care planning.

Visiting

40. The care home restricted visiting from 13 March, ahead of Government Guidance, to protect its residents. It stopped allowing visits, except in exceptional circumstances, from 18 March in line with Government Guidance. I have seen copies of its communications to families, which show it clearly explained its policy and the reasons for it. It was not at fault.
41. The care home did allow visits to residents who were receiving end of life care. Its records show regular visits from Mrs X, Ms Z and other family members during March and April. It told Mrs X about Mr Y’s condition on 20 and 22 April and said she could visit. Ms Z had visited Mr Y twice in the day before he died.
42. Mrs X was distressed at not being with Mr Y when he died. If she had been asked to visit when she spoke to the care home at 06:00 on 24 April she could have done so. However, I do not consider the failure to suggest an immediate visit during that call amounts to fault. This is because, although she was told Mr Y had some breathing difficulties, the records and accounts of care staff on duty at the time do not mean the care home knew Mr Y’s death was imminent. It had invited her to visit in the days before he died as he was receiving end of life care.
43. The care home refused a family visit after Mr Y’s death in line with guidance in response to COVID-19 in force at the time.

Communicating with the family after Mr Y’s death

44. The Care Provider accepted it should not have sent a generic email to the family after Mr Y died. It apologised for doing so. Whilst I appreciate this caused Mrs X some distress, I do not consider it warrants a formal finding of fault. In any case, the care home has apologised, which is an appropriate remedy, and it has taken appropriate steps to prevent this happening again.

COVID-19 response

45. There was no requirement for care staff to use PPE when caring for residents who did not show symptoms of COVID-19 on 18 March when Mrs X visited after an ambulance was called for Mr Y.
46. There is no evidence to show the care home did not implement the Guidance on PPE and infection control in line with changes. Rather, the evidence suggests the care home took appropriate steps to protect residents and staff, and succeeded in containing infection in one part of the care home. At the time, there was no nationally agreed way to record such actions but the care home has since implemented a recording system.
47. Government Guidance said that residents who had tested positive for COVID-19 and those showing symptoms should isolate in their rooms where possible. The care home explained that some of its residents, who had dementia, were inclined to wander and could not be isolated in their rooms. It therefore allowed them to use a communal room, set up for that purpose, with appropriate restrictions to prevent the spread of infection. Although the Council was initially concerned about the use of a communal room, it accepted the reasoning behind this after discussions with the care home following its complaint response to Mrs X. I also note that a later Infection Prevention and Control audit confirmed this approach was acceptable.
48. I am satisfied there was no fault causing injustice in the way the care home implemented Government Guidance to prevent the spread of COVID-19.

Complaint handling

49. The care home’s initial response to Mrs X’s complaint was a few days late but this was not sufficient to warrant a formal finding of fault, particularly given this was in the early months of the COVID-19 pandemic. The care home responded to the questions Mrs X asked and offered to discuss her concerns by telephone or by video call. I do not find fault with its complaints handling.
50. The Council acknowledged that, because it could not visit the care home due to COVID-19 and some key staff had been redeployed to assist with its COVID-19 response, its complaints handling was not as “forensic” as it might have been. The Council explained the situation to Mrs X in its complaint response. The difficulties in investigating the complaint as a result of the pandemic meant the issue about the use of a communal room was not fully addressed at the time the complaint response was sent, although the complaint response indicated the Council would discuss that matter further with the care home.
51. I consider the Council took appropriate steps to address the issues Mrs X raised, bearing in mind the difficulties caused by the COVID-19 pandemic. The Council was not at fault.

Agreed action

52. The Council will, within one month of the date of the final decision, apologise for the lack of records on the morning of 24 April, which has left Mrs X with uncertainty about what happened in the final hours around her father’s death.
53. I am satisfied the Council and the Care Provider have taken appropriate action to prevent recurrence of this fault and no further recommendations are needed.

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Final decision

54. I have completed my investigation. I have found fault causing injustice. I have recommended action to remedy that injustice, which the Council agreed to.

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Investigator's decision on behalf of the Ombudsman