Summary: Mr D complains about issues relating to his late father’s care in Newgate Lodge, including during the COVID-19 pandemic. The Care Provider’s actions did not cause injustice to Mr D or his father.

The complaint

1. Mr D complains the Care Provider failed to:
1. Keep him updated about his late father’s, Mr F’s, condition whilst he was resident in the care home from October 2019 to June 2020, causing distress.
2. Ensure Mr F received medication and suitable or adequate nutrition or did prescribed exercises.
3. Keep confidential and personal information secure or send him deprivation of liberty safeguard information on time in late 2019, causing delay.
4. Isolate Mr F during the COVID-19 lockdown of April 2020, causing him to contract the virus from which he later died.
5. Deal with his complaint properly, causing him time and trouble.

Back to top

The Ombudsman’s role and powers

2. 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. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. 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)
4. 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 care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
5. 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)

Back to top

How I considered this complaint

6. I spoke to Mr D about his complaint and considered the information he sent, the Care Provider’s response to my enquiries and:
• Admission and care of residents in a care home during the COVID-19 pandemic, Public Health England, 2 April 2020
• Code of practice on deprivation of liberty safeguards, Ministry of Justice, 2008
7. Mr D and the Care Provider had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Fundamental Standards of Care

8. 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. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Food and drink (Regulation 14): Service users must have enough to eat and drink to keep them in good health while they receive care and treatment.
• Complaints (Regulation 16): The provider must have a system in place to handle and respond to complaints. In this case, the Care Provider has a single stage complaint procedure. It aims to respond to complaints within 28 days.
• Good governance (Regulation 17): Providers must maintain securely an accurate, complete and contemporaneous record in respect of each service user.

Admission and care of residents in a care home during the COVID-19 pandemic

9. In response to the coronavirus pandemic, the Government issued guidance for care homes on 2 April 2020. This said if an individual had no COVID-19 symptoms then care should be provided as normal. Residents with symptoms should be isolated in a single room with separate bathroom where possible.
10. Care homes should monitor residents and staff for COVID-19 symptoms daily and report residents with fever or respiratory symptoms to NHS 111 for advice on assessment and testing. If symptoms worsen the GP should be contacted.
11. The guidance also 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.

Mental Capacity

12. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. The Mental Capacity Act 2005 (and its Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so themselves.
13. A key principle is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests.
14. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Deprivation of Liberty Safeguards

15. The deprivation of liberty safeguards (DoLS) provide protection for people who lack the capacity to decide about their accommodation where such arrangements amount to a deprivation of their liberty. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative.
16. The legislation and DoLS Code of Practice set out the procedure to follow to obtain authorisation to deprive an individual of their liberty. This says the care home must apply to the local authority for an authorisation of that deprivation.
17. The care home should tell the person's family that it has applied for an authorisation of deprivation of liberty, unless it is impractical or impossible to do so, or undesirable in terms of the interests of the person’s health or safety.
18. To determine whether to authorise the deprivation, the local authority must assess six relevant criteria within 21 days. These include an assessment of whether deprivation of liberty is in the person’s best interests. As part of this best interests’ assessment anyone who is engaged in caring for the person or interested in their welfare, or who has been named by them as a person to consult, must be given the opportunity to input their views.
19. If the local authority grants authorisation it must keep a written record and give a copy to the care home and every interested person named in the best interests assessment.
20. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection either before or after the authorisation is given.

What happened

21. Mr F was in his 80s with dementia and other health conditions, including chronic obstructive pulmonary disorder (COPD). He walked with a stick. Mr F had two sons, Mr D and Mr M. They had joint lasting power of attorney for Mr F’s health and welfare.
22. Mr F had been living at home in Council X’s area with a live-in carer. In June 2019, the live-in carer gave notice and Mr D went to stay with his father as there was no care in place. The next day Mr D and Mr M agreed that, as suitable live-in care could not be found, Mr F should move into a care home temporarily.
23. Mr F moved into Newgate Lodge (“the Home”) run by Newgate Lodge Ltd (“the Care Provider”) which is in Council Y’s area near Mr M’s home. On arrival, the list of medicines Mr F was prescribed included a tiotropium inhaler for COPD.
24. Mr D says the Home agreed to email him every week with an update on Mr F’s condition. In September a member of the Home’s staff went off sick, so the regular update emails to Mr D stopped. The Home says instead other staff responded to Mr D’s emails and calls or met him when he visited each week.

Deprivation of Mr F’s liberty

25. The Home made a DoLS application to Council Y but was advised to contact Council X. It did so and Council X carried out its DoLS assessments, including a mental capacity assessment by a consultant psychiatrist on 8 August. This found Mr F did not have capacity to decide where he should live. An independent advocate was appointed for Mr F. A best interest assessment was carried out by an independent assessor. This found Mr F wanted to move back to his home in Council X’s area, but it was in his best interests to stay at the Home. Council X gave DoLS authorisation on 14 August to last until 14 November 2019.
26. A new DoLS assessment was carried out in October and Council X gave a new DoLS authorisation on 14 November 2019, to last until March 2020. The authorisation included a condition that the Home must make a referral to the community therapy team or the GP to “request a review to ascertain if Mr F benefits from ongoing physiotherapy”. The authorisation says Mr F’s COPD had been well controlled and he had not required any extra inhalers recently, but it included a condition that his care plan should be amended to reflect how his symptoms would be observed and managed. It also noted Mr F had a poor appetite and required encouragement with eating and drinking.
27. Mr D was concerned about the deprivation of liberty as Mr F had wanted to remain in his own home and it had been agreed with Mr M that Mr F’s stay in a care home would only be temporary. Mr D lodged an appeal with the Court of Protection on 18 December 2019. A hearing was set for 30 March 2020.
28. Mr D asked for a copy of the best interest assessments (“Form 3”). The Home said the earlier one could not be found but it posted the October one to Mr D. Once the August Form 3 had been located, the Home asked Mr D to collect it as it contained sensitive data and could not be posted.
29. When Mr D saw these forms he was concerned they contained a number of false statements and sent them to Mr F’s solicitor to be corrected before being submitted to the Court of Protection. Mr D was then told the forms had already been submitted to the Court of Protection so could not be amended before the hearing.
30. A new best interest assessment was carried out in late February by an independent assessor. The assessor spoke to Mr F, Mr D, Mr M, and the Home. She also had the report from the advocate’s previous discussion with Mr F. The assessment considered whether Mr F should remain at the Home, move back to his home with a live-in carer, or move to a care home near Mr D. It concluded it was in his best interests to remain at the Home.
31. Council X considered this assessment before it authorised the deprivation of liberty again in March 2020. Its DoLS assessment noted there was disagreement between Mr D and Mr M but they had not objected to the authorisation, as it was to be in place until the Court of Protection hearing. The Court of Protection decided it was in Mr F’s best interest to remain at the Home.

Care for Mr F in the Home

32. I have reviewed the daily care records from April to June 2020. They show Mr F was largely independent with personal and continence care but was given support when needed, though he occasionally refused help. He was checked every two hours at night. The medication charts show he was given his prescribed medicines as required, including the tiotropium inhaler every morning. A COPD care plan was put in place in February 2020. The records refer to Mr F as being “very alert”, “happy”, in a “pleasant mood” and “chatty”. He would sometimes watch TV in the lounge, read newspapers, do jigsaws and crosswords, and play dominos.
33. Mr F’s food and fluid charts from March 2020 show he initially had good food and fluid intake, though occasionally poor diet and low appetite. His nutrition care plan said staff would encourage him to eat, but he was able to choose what to eat or to refuse to eat. He was weighed every month. From June 2019 to May 2020 he lost 3.8kg but his BMI was in the healthy range and he was assessed as at low risk of malnutrition.
34. A physiotherapy referral was completed on 15 January 2020 but I have seen no reference in the daily records or care plans to exercises or whether they were done.
35. In early April, due to concerns about COVID-19, Mr D asked the Home to ensure Mr F remained in his room. The Home said it could not do this as that would be a deprivation of Mr F’s liberty that it had no authority for.
36. Mr D says staff told him that Mr F had been swearing at them. He was concerned that this was a sign of agitation or distress that was not being dealt with. There are no incidents of Mr F being agitated or aggressive with staff in the daily records until 22 May 2020, when the record says he had been “challenging carers at times”.
37. Mr F’s condition started to deteriorate. On 23 May he was too tired to get out of bed. He was tested for COVID-19 on 1 June and found to be positive. Over the next two weeks he was recorded to be sleepy, occasionally confused, had a poor diet or declined to eat and on one day he had a sore throat.
38. The Home called paramedics on 16 June after the GP raised concerns. But when the paramedics arrived they agreed with Mr M that it would not be in Mr F’s best interest for him to go into hospital. Mr D says he was not kept informed about this; he met the Home’s manager two days later. Mr F’s Summary Plan for Emergency Care and Treatment form was updated. This listed Mr M as an emergency contact. Mr F continued to deteriorate and his family, including Mr D, visited him. He died on 22 June.

Mr D’s complaint

39. Mr D complained to the Home on 29 July. The Care Provider responded on 24 September. It offered condolences and apologised for the delay, which had been caused by the manager being unable to go to the Home where Mr D’s letter was being stored, due to shielding from COVID-19.
40. The Care Provider accepted that the Home manager had agreed to update Mr D regularly and that this had stopped in September 2019. However, the Deputy Manager had replied to Mr D’s calls and emails and had met with him. It apologised if some phone calls were missed and not followed up. Regular updates were communicated to a next of kin. It also said:
• The GP had advised in June 2019 Mr F’s salbutamol inhaler was no longer required, though he was still prescribed the tiotropium inhaler.
• Mr F had very little appetite and this was “a huge concern” but staff encouraged him to eat.
• Mr F was always respectful and kind towards staff; managers had never heard him swear.
• It was felt isolation was not in the best interests of residents, especially as they could not see their families. The Home considered if Mr F had stayed in his room he may have slept all day, which would have had a detrimental impact on his nutritional needs and overall well-being. In addition, legally the Home could not keep Mr F in the room if he decided to leave it.
• Mr D met the Deputy Manager or Care Manager as he usually visited at weekends when they were present.
41. Mr D remained dissatisfied and wrote again to the Home on 15 October. After not receiving a reply he came to the Ombudsman.

My findings

42. There is no dispute that the Home initially agreed to update Mr D with emails each week and stopped doing this from September 2019. However, it continued to provide him with updates if he called or emailed or visited. It has apologised if some of these were not responded to.
43. I do not consider there has been any fault here. Regulation 9 of the fundamental standards says families should be involved in care assessments and given information to help them make decisions about the resident’s care, but there is no requirement for care providers to provide relatives with updates. So whilst it was frustrating for Mr D not to receive the updates, it was not fault by the Home.
44. Having reviewed Mr F’s care records, including his medication charts and food and fluid records, I have seen no evidence his care needs were not being met. He was given personal care and medication, including the medication for his COPD. He ate and drank, occasionally with a low appetite. Although he lost weight, this was not to a significant degree and his BMI remained in the healthy range.
45. There is no record of Mr F doing prescribed physiotherapy exercises and I have seen no care plan setting out those exercises. It is unclear, therefore, whether he did not do them or whether they were just not recorded. However, I cannot see that this caused any injustice to Mr F. Until he became ill in late May 2020, he was still active and there is no sign he was in pain or struggling with his mobility.
46. I realise Mr D disagreed with the decision that Mr F should live at the Home. However, there was no fault in the way the Home applied for DoLS authorisation. The best interests assessment is comprehensive and detailed. It reflects the views of all interested people, including Mr D’s disagreement. Council X carried out a proper DoLS assessment and granted authorisation and the Court of Protection agreed Mr F should remain in the Home. There is no fault.
47. The law and guidance on DoLs did not require the Home to send the Form 3s to Mr D. He is concerned these were lost, but there is no evidence of this. In response to my enquiries the Home said it was not sent the August 2019 Form 3 for a number of weeks, when it received it, it was stored on Mr F’s file and Mr D was asked to collect a copy.
48. Mr D is concerned that there was delay as he did not receive the Form 3s and was unable to amend them before the Court of Protection considered the case. He says if he had seen and amended the Form 3s sooner, Mr F’s deprivation of liberty would not have been authorised. But this does not follow. Mr D’s views were considered by Council X when it granted authorisation in November as part of the best interests’ assessment. Mr D wished to challenge that authorisation and lodged an appeal on 18 December 2019. But the Court could not have overturned it prior to its hearing on 30 March 2020 even if Mr D had submitted an amended Form 3 earlier. Mr D says the Form 3 contained errors but he had a chance to correct any errors at the Court of Protection hearing.
49. Mr D complains the Care Provider did not isolate Mr F from April 2020 to reduce the risk of him contracting COVID-19. The Care Provider had no authority to make Mr F stay in his room if he chose to leave it. The Government Guidance only required residents to isolate if they had symptoms. There is no evidence Mr F had symptoms until he tested positive on 1 June. After that, as he had dementia, the Home could encourage him to remain in his room but this could be difficult to enforce.
50. There was a delay by the Care Provider in replying to Mr D’s complaint, but its response was within the six months recommended in the Regulations. There is no evidence the Care Provider responded to his follow up letter in October 2020, but it was not required to do so as its complaints policy is to only reply once before referring the complainant to the Ombudsman. It should have signposted Mr D to the Ombudsman. It did not, but I do not find this caused Mr D significant injustice as he came to us within a month.

Back to top

Final decision

51. The Care Provider's actions did not cause injustice. I have completed my investigation.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman