Summary: Mrs J complained about the care her mother received while she was resident at Meadowbeck Care Home operated by the Care Provider. Among other matters, Mrs J complained she had only very limited opportunity to visit her mother before she died of COVID-19 in May 2020. We uphold the complaint finding Mrs J was caused injustice through distress, expressing concern at the Care Provider’s policy towards end of life visits for residents with COVID-19. We make recommendations at the end of this statement for how the Care Provider can remedy this injustice.

The complaint

1. I have called the complainant Mrs J. Her complaint concerns the care received by her mother, ‘Mrs K’, who was resident at Meadowbeck Care Home (operated by the Care Provider) from December 2019 until she died in May 2020. Mrs J complains about:

• the Care Provider’s response when Mrs K lost weight during her time at the care home;
• the extent of information shared with Mrs J and her family by the Care Provider during the COVID-19 pandemic. She says the Care Provider did not provide meaningful updates about Mrs K’s wellbeing and gave inadequate information about COVID-19 infections;
• the circumstances surrounding a visit the family undertook to Mrs K the day before she died. This was brief and only agreed after the family made several different representations to the Care Provider;
• communications between the care home, Mrs J and other family members following Mrs K’s death.

2. Mrs J says because of the above she, her siblings and wider family have suffered distress. She says the lack of information about a deterioration in her mother’s health in the final weeks of her life was a particular source of distress. Mrs J also considers her mother suffered unnecessary distress under the care of the Care Provider. Mrs J says because she did not know the extent of Mrs K’s deterioration she missed the opportunity to move her from the care home.

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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. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
6. 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.

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How I considered this complaint

7. Before issuing this decision statement I considered:

• Mrs J’s written complaint to the Ombudsman and any supporting information she provided;
• communications Mrs J had with the Care Provider about the matters covered by this complaint which pre-dated our investigation;
• information provided by the Care Provider in reply to my enquiries;
• any relevant law or guidance as referred to in the text below;
• comments made on two draft decision statements by Mrs J and the Care Provider, where I set out and developed our thinking about this complaint.

8. The Care Quality Commission (CQC) is an independent regulator of all health and care services in England. Under an information sharing agreement between the Local Government and Social Care Ombudsman and CQC, we will share this decision with CQC.

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What I found

Relevant CQC guidance

9. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the ‘fundamental standards’ all care providers should meet in delivering care. We consider the 2014 Regulations and accompanying CQC guidance when determining complaints alleging poor standards of care.
10. Of relevance to this complaint are the following:

• Regulation 14 – “Meeting nutritional and hydration needs”. This says providers must ensure people have enough to eat and drink to meet their nutrition and hydration needs and receive the support they need to do so. This is to reduce risks of malnutrition and dehydration.
• Regulation 17 – ‘Good governance’. This regulation requires providers have systems and procedures in place to meet various regulatory requirements. Providers must 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.

General Background and Mrs J’s complaint

11. Mrs K moved to the care home in December 2019 and died there at the beginning of May 2020 after contracting COVID-19. Mrs J made a complaint to the Care Provider in July 2020. I summarise the main concerns outlined in that complaint, of relevance to this investigation, as follows - that the Care Provider:

• failed to properly manage Mrs K’s weight. Mrs J noted that as Mrs K spent more time at the care home so she spent more time in her room eating alone. Mrs J noted Mrs K preferred food in small portions and required support to eat;
• failed to provide adequate information about steps being taken to try and control COVID-19 infections after the care home experienced its first case in mid-April 2020. Mrs J raised concerns about infection control measures being taken in the care home such as use of personal protective equipment (PPE) and use of agency staff;
• failed to communicate adequately with the family during the early weeks of visiting restrictions introduced following the onset of the COVID-19 pandemic in March 2020. It had failed to alert the family to a gradual decline in Mrs K’s wellbeing; informing family members Mrs K was ‘fine’. Mrs J did not have facetime with Mrs K until late April 2020. When she did, Mrs J was shocked by how much weight Mrs K had lost and how poorly she appeared;
• that when in late April 2020 Mrs K entered the final stages of her life the Care Provider initially failed to facilitate a visit from family members; before allowing only a brief visit. Around this time it had also had a conversation about funeral arrangements for Mrs K, which Mrs J considered was inappropriate while she was still alive;
• that it had not offered condolences following Mrs K’s death until two months after she died; had failed to offer support and left belongings for collection in rubbish bags.

12. The Care Provider offered an initial response to the complaint in October 2020. I summarise its response as follows:

• that during her stay in the care home, Mrs K’s weight loss had been noted and the Care Provider had consulted three times with her GP in February and March 2020. The Care Provider also consulted a dietician at the beginning of April 2020. It updated family members on the outcome of the consultation with the dietician;
• that it considered family members had received comprehensive updates on Mrs K’s wellbeing when requested. It had told Mrs J’s sister when it considered Mrs K was at end of life, around a week before she died. At the end of April, the care home had facilitated four facetime calls. It understood however, that Mrs J was still shocked at Mrs K’s appearance noting it had been several weeks since she last visited and by the time facetime calls took place Mrs K was very poorly and nearing end of life;
• that it had only imposed restrictions on visits with the intent of protecting the safety and wellbeing of residents. It apologised if Mrs J’s final visit was rushed and did not feel private. It said the care home was surprised by the number of family members who wanted to visit Mrs K. It denied having an inappropriate conversation with Mrs J about funeral arrangements for Mrs K in the days before she died;
• that it had in place stringent infection controls and always had enough PPE for staff. It had used agency staff only as a last resort;
• it had put Mrs K’s possessions in storage bags as it did not have storage boxes at the time;
• it noted that after Mrs K died Mrs J had posted a positive review of the care home on social media and sent gifts to staff thanking them for their care;
• it refunded one weeks’ charges which would otherwise be payable for Mrs K’s room after her death.

13. Mrs J escalated her complaint later in October 2020. In this she said the Care Provider:

• had not addressed specific concerns around how the Care Provider had managed Mrs K’s diet and food intake;
• had not recognised her complaint that staff misled the family into thinking Mrs K was ‘fine’ for several weeks when that was not the case; that there were no systematic updates given to relatives; she repeated that family should have been better prepared for how much Mrs K’s health had deteriorated when facetime calls started;
• had not given adequate information about COVID-19 cases in the care home; Mrs J did not want information about other residents who contracted the virus but had want to know if her mother had been in contact with those residents; she wanted the Care Provider to explain more about the outbreak of COVID-19 at the care home; anecdotally Mrs J said she understood staff had not always worn PPE appropriately which she took to mean at all times;
• that the description provided of many family members wanting to visit Mrs K at end of life was inaccurate and reiterated a conversation had taken place about funeral arrangements in the days before she died, which Mrs J thought inappropriate;
• that until the Care Provider responded to the complaint the family were unaware that Mrs K was being treated as being at end of life;
• that any gifts to staff were made before Mrs K passed away and were for Easter.

14. The Care Provider gave a final response to Mrs J’s complaint in December 2020. I summarise that as follows:

• it reiterated that it had been aware of concerns about Mrs K’s weight from the time she moved into the care home. It had drawn up a food plan and staff did what they could to encourage Mrs K to eat, including offering snacks and finger food;
• that when staff had referred to Mrs K being ‘fine’ this was reasonable as she had been generally settled and rested at the care home;
• that it was sorry it could not have offered facetime calls sooner; staff had been busy in the early weeks of the pandemic; that there had been regular communication with the family, even if that was initiated by the family;
• that staff had recorded a conversation with one of Mrs J’s siblings around a week before Mrs K died, where they had been told Mrs K was on end-of-life medication. It said that a member of staff could not recall any conversation with Mrs J about funeral arrangements for Mrs K in the days before she died;
• that any specific allegation that staff had not worn PPE would be investigated but the Care Provider could not investigate on basis of limited information provided by Mrs J;
• that it agreed its initial account of the visit on the day before Mrs K died was inaccurate; it also apologised that family were not better prepared for Mrs K’s condition having deteriorated so much.

My investigation

Complaint about weight loss

15. During my investigation I considered care records provided by the Care Provider which detailed the management of Mrs K’s weight and nutrition.
16. I noted that in care planning documents completed on Mrs K’s admission in December 2019 the Care Provider recorded she could eat and drink independently; although another section said Mrs K needed help cutting up food and prompting to eat. The plan said she liked to eat with others and had a good appetite. The plan did not record that Mrs K liked to eat her food in small portions.
17. In daily care logs the Care Provider often made comments on Mrs K’s food and fluid intake. Over time it recorded more concerns. I noted for example that in early February 2020 there were several consecutive days when it recorded Mrs K having a poor intake of food and fluids.
18. The Care Provider also kept a more detailed daily record of Mrs K’s food and fluid intake. I noted that each day it offered Mrs K three meals and between meals it also offered snacks. As with the daily food logs these show that over time Mrs K refused more of her food and so ate less.
19. The Care Provider recorded Mrs K’s weight and her Body Mass Index (BMI) monthly. Mrs K’s weight dropped throughout her time in the care home, most significantly between March and April 2020. The Care Provider recorded her BMI as being underweight from late February 2020 onward. At the same time the Care Provider identified Mrs K as being at high risk of malnutrition.
20. The Care Provider has a policy setting out what action it will take when someone is identified at high risk of malnutrition. This says it will:

• weigh the resident and assess the risk weekly;
• document food and fluid intake;
• assess the condition of the resident’s mouth and teeth; what assistance they need with eating and review their food likes and dislikes;
• refer to a GP for advice;
• refer to a dietician for advice;
• action any recommendations made by a GP or dietician;
• fortify food;
• provide nourishing snacks between meals.

21. I went through the records and made enquires of the Care Provider to see what actions it had taken against this list.
22. The Care Provider said that it could not weigh Mrs K weekly because it caused her distress. It recorded this in its records in February 2020. It also said that when it consulted a dietician they suggested as a minimum weighing Mrs K monthly.
23. The Care Provider provided the records showing it had documented Mrs K’s food and fluid intake daily as I noted above.
24. The Care Provider provided a record showing it reviewed Mrs K’s likes and dislikes for food when she moved into the care home in December 2019. It reviewed that monthly thereafter. It also explained how it cared for her mouth hygiene in the latter stages of her life.
25. The Care Provider provided records of its consultation with Mrs K’s GP in late February 2020. The advice was to offer Mrs K high calorie snacks throughout the day and fortified foods and to refer her case to a dietician if no improvement. The GP suggested giving Mrs K fortified milk-shakes, but records say Mrs K did not like these and would not drink them. Later, the GP suggested an alternative supplement drink, but Mrs K refused this also.
26. The Care Provider recorded referring Mrs K’s case to a dietician in March and that consultation took place in early April 2020. The dietician recommended:

• the care home try alternative supplements including one that was fruit juice based;
• offering high calorie finger foods and snacks to Mrs K;
• undertaking weekly weight measurements or at least monthly.

Complaint about COVID-19 infection control

27. The Care Provider adopted a policy of advising close contacts of residents if there was a COVID-19 case in one of its care homes. A letter was sent which set out the measures being taken by the Care Provider to try and limit any spread. The Care Provider would also alert named contacts of residents if that resident fell ill or had suspected symptoms of COVID-19.
28. But its policy was not to share details such as the number of cases in a care home or deaths. It said this would breach the data protection rights of individuals within the care home. In relation to this policy the Care Provider has told us:

• “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”.

29. In this case the Care Provider alerted the families of residents at the care home in mid-April 2020 that it had a confirmed case of COVID-19. The letter said the Care Provider understood relatives would be worried and it set out the measures it was taking to assess risk to others. It sought to reassure relatives on infection control measures the care home was taking, including staff self-isolating when showing symptoms.
30. Mrs J said she wanted to know more about the initial case and any potential contact between that case and her mother. The Care Provider has told us that to reveal this information could have compromised the anonymity of the initial case.
31. The Care Provider has also commented further that around April and May 2020 it was very difficult to give an accurate picture of COVID-19 infections in its care homes. There were insufficient tests and not enough was known about the risks of asymptomatic cases and infections. Any information it gave relatives may therefore have been unintentionally inaccurate in any event. The Care Provider has also explained that to provide more information may have jeopardised the health and safety of staff working at the care home as they may be unfairly blamed for any outbreak.

Complaints about communications and visiting

32. I noted from the care planning documents completed when Mrs K entered the care home that the Care Provider knew her children (including Mrs J) held a Power of Attorney to make decisions about Mrs K’s health and wellbeing. It indicated any discussion around end of life care planning would involve Mrs K’s family therefore. In January 2020 it had recorded that Mrs J’s sister would be the primary point of contact if it needed to discuss Mrs K’s welfare with the family.
33. Daily care logs recorded when Mrs K received visits from family and I noted these stopped on 9 March 2020 around the time when the Care Provider began to restrict visits to residents because of the pandemic. The Care Provider recorded it had conversations with family members on occasion in March and early April 2020. But it did not record any detail of what these contained.
34. I noted Government guidance on visiting care homes during the pandemic was as follows:

• 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;
• 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”;
• 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”;
• On 26 March the Government introduced the Health Protection (Coronavirus Restrictions) (England) Regulations 2020 which said “no person may leave the place where they are living without reasonable excuse”. The Government then listed 13 instances that would be “included” as a reasonable excuse. None of these referred to visits to care homes.
• 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.”
• 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.
• On 15 April 2020 the Government published an adult social care action plan. This said: “whilst we have recommended care homes limit unnecessary visits, we are clear that visits at the end of life are important both for the individual and their loved ones and should continue”. This guidance also linked to other Government guidance offering advice to care providers on measures to take to facilitate visits such as following social distancing rules, use of PPE, allowing only one visitor at a time and so on.

35. During the pandemic the Care Provider publicised its own policies on visiting as follows:

• On 10 March 2020 it put the following statement 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 […].”
• 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”. 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.

36. The Care Provider has explained that its policy from this date on was to allow an exception for visits at end of life, but not for those residents who had COVID-19. It says this was because at the time it had “little real knowledge about the impacts and effect of the virus” and it wanted “to mitigate the risk of infection” which visits might create. It also says the Government’s position appeared contradictory at times, citing the Government Regulations introduced in March 2020 as an example, which did not specifically exempt care home visits as a ‘reasonable excuse’ for leaving the home.
37. I noted the Care Provider consulted with Mrs K’s GP in late April 2020, just over a week before she died. It recorded Mrs K as frail and not eating or drinking. Its notes recorded the GP believing Mrs K to be nearing end of life and that he would prescribe “anticipatory medicine”. The Care Provider recorded speaking to two of Mrs J’s siblings that same day and in one of the calls gained consent to undertake a COVID-19 test. The records of these calls do not record any discussion of Mrs K being at end of life. Although the Care Provider also notes its understanding that there was a separate conversation between Mrs K’s GP and a relative of Mrs J, when they were told Mrs K had begun end of life medication.
38. A few days later the care home received confirmation Mrs K had contracted COVID-19. There followed several exchanges with family members where the care home recorded them wanting to visit and the Care Provider explaining its policy was not to allow visits. The Care Provider offered facetime calls as an alternative.
39. The Care Provider had set up a separate national helpline for relatives which supported its care homes. Mrs K’s family contacted this service via email, two days before she died. On the same day the Care Provider replied explaining its policy on visiting as I have described above. The Care Provider says the family asked for an exception to its policy and it also received contact from a local MP. It referred the matter to a senior manager, but it says by this time the family had turned up at the care home. The Care Provider says that in view of the exceptional pressure being exerted on it, that it allowed a brief visit from Mrs J and her siblings. It restricted those visits to five minutes duration each.
40. In late April 2020, the Care Provider recorded Mrs K had declined further and recorded the family wishes around funeral arrangements. In answer to my enquiries, it has said that it cannot say who initiated this conversation – i.e. whether it was the care home or Mrs J. But that it wanted to apologise for any distress caused to Mrs J by the conversation.
41. The Care Provider has said that when a resident dies it expects the care home will send condolences to the family. It also has online support tools available to managers to support bereaved relatives. In this case it considers the level of service offered to Mrs J after Mrs K’s death was “not of the standard the family would rightly expect”; in particular, with reference to how Mrs K’s belongings were packed for collection. The Care Provider said in recognition of this, and as a gesture of goodwill, it refunded Mrs K’s estate £1200 that it would usually have taken in fees following her death.
42. In general comments on this part of the complaint, the Care Provider has said that during the pandemic it was “not feasible to provide updates to each and every member of [Mrs K’s] family at the frequency the family expected”. It had to balance the time given to communicating with families with the ongoing running of the care home.

Findings

Complaint about weight management

43. I find the Care Provider was aware when Mrs K moved into the care home that it would need to provide particular support with this aspect of her care. I find it reviewed its care plan regularly and clearly took note of what Mrs K was eating and drinking. It recorded weight loss from when she moved into the home.
44. In February 2020 the Care Provider correctly identified Mrs K’s weight as having declined to the point she was at risk of malnutrition. At that point its policy required it to attempt further interventions to see if that would reverse the decline.
45. I found the Care Provider largely followed that policy. I think it possible it could have referred Mrs K’s case to a dietician a few weeks earlier but recognise Mrs K’s GP did not recommend this on a first consultation. I also note the Care Provider did not weigh Mrs K weekly - but it has provided an explanation for this. What the care records also show is the Care Provider tried hard to encourage Mrs K to take fortified drinks and regularly offered her snacks between meals. It also continued to keep detailed records of the attempts it was making.
46. Overall, I find there is insufficient evidence that would lead us to fault the Care Provider’s management of this issue. The records do not suggest the Care Provider fell short of the fundamental standards set by the CQC.

Complaint about COVID-19 infection control

47. In considering the extent of information shared between the Care Provider and Mrs J 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.
48. 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. During this investigation the Care Provider has correctly pointed out that the guidance we issued on good administrative practice during the pandemic was only published shortly after the events covered by this complaint (May 2020). However, it remains relevant to this investigation as it summarises the approach we take to considering what constituted good administrative practice during the pandemic, building on existing guidance. While it was intended as a guide for organisations, it was not introducing any new principles or ideas. Instead, it offered practical examples of how pre-existing principles could be applied in the unprecedented circumstances of the pandemic. Noting the challenges posed to local authorities and care providers in having to make decisions at speed and responding to challenges posed by new ways of working. So, for example, the principle of openness and accountability is one that we have long encouraged organisations we investigate to adopt.
49. I accept in this instance the Care Provider had to balance this principle of openness 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. Telling Mrs J more about the source of the initial infection at the care home may have done this. And I would not have expected the Care Provider to give detailed or highly specific information about the spread of infection in the care home.
50. But it could have still considered striking a middle ground, indicating the extent of any infection spread within a care home, so far as this was known. Although I accept what the Care Provider says that to accurately identify the number of infections in its care homes during the early months of the pandemic would have been very difficult for the reasons it cites. Also, clearly this was a uniquely challenging time for the Care Provider and I recognise it had no precedent for requests of this type.
51. So, I do not find the Care Provider at fault here. I also note the CQC has subsequently released data on outbreaks in individual care settings from the beginning of the pandemic. So even if I did find fault, this would mitigate any injustice Mrs J may have been caused by the Care Provider’s guarded responses to questions about the numbers of cases at the care home initially.
52. 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 K contracted COVID-19. This also follows Mrs K providing us with comments from a third party late in the investigation of potential relevance. 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 inadequate infection control policies at the time. Nor is it likely to establish any breach of the policy as the Care Provider was not given details at the time that would have enabled it to investigate any specific alleged breach.
53. 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. While I note Mrs J’s concerns about staff’s use of PPE and the Care Provider’s use of agency staff, I do not consider any investigation we might undertake could add to the replies she has received from the Care Provider on raising those matters with it.

Complaint about communications

54. 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 J after the visiting restrictions came into force. But I understand how distressing these weeks would have been for Mrs J.
55. I recognise the Care Provider was providing services under exceptional pressure. So, while regrettable, I do not consider it was fault if the Care Provider did not, in the early weeks of the pandemic, offer systematic calls to relatives or, as a matter of general practice, record the content of calls when it spoke to relatives.
56. I understand Mrs J and her siblings did speak regularly to the Care Provider nonetheless, through initiating calls. It is unfortunate if Mrs J did not learn more about Mrs K's deterioration following those conversations, for it is evident from the care records that she was deteriorating, eating and drinking less. While I accept what the Care Provider says about why care home staff may still have referred to Mrs K as being ‘fine’, I do not doubt Mrs J was unprepared for the sight of seeing her mother on facetime after several weeks of not seeing her. This will have caused her distress.
57. I also consider the Care Provider should have recorded any discussion with the family when it was told by the GP Mrs K was likely at the end of life. Because, while I have no general concerns about the Care Provider’s record keeping this was clearly an important call given the need to inform and consult with Mrs K’s family around her end of life. The Care Provider should have made a more comprehensive note therefore to make clear what they had told the family and what was discussed. Or what it understood had been communicated to the family by Mrs K’s GP.
58. However, if there was any confusion about how ill Mrs K had become, I am satisfied this was not something that pertained for more than a few days. Because records show that in the days before she died, Mrs K’s family was aware she was nearing end of life. This is illustrated by the discussion which took place around funeral arrangements and the efforts the family went to in trying to secure a final visit to Mrs K. Any injustice arising from a failure to better record the information referred to around Mrs K nearing end of life (or being prescribed end of life medication) was not significant therefore.
59. I can also come to no view on the conversation around funeral arrangements. Because while it is clear such a conversation took place it is not clear who initiated it, nor exactly what was said. Although with the Care Provider having now also apologised for any distress caused by this conversation, I consider there is nothing further I could achieve for Mrs J in relation to this matter through further investigation of it.

Complaint about visiting

60. The Care Provider’s policy on not allowing any visits to residents with COVID-19, even at the end of life, was out of step with Government guidance. I accept Government guidance could have been clearer and it was potentially inconsistent with those Regulations which listed legitimate reasons for leaving home, which did not include visits to care homes in end of life situations. But in the absence of the Government drawing any distinction between users of services dying of (or with) COVID-19 and those dying of other causes, I find the guidance which said care providers should allow visits at end of life must have been intended to apply to both. I note the guidance sought to place limits on such visits, saying they must be properly supervised, involve the wearing of PPE and so on. Visits were therefore expected to be in line with infection control policies in force.
61. I note the Government guidance in force in April and May 2020 had a lesser status than law. Nor was it statutory guidance which carries a greater weight with the expectation that only in the most exceptional circumstances should it not be followed. I also note the Care Provider has given reasons for its different approach and that it set up systems to facilitate video calls for its residents, including in this case. We also recognise this was an unprecedented situation for the Care Provider and it would not have restricted any visits but for that. And that in doing so it believed it was acting in the interests of its residents and staff.
62. But that said, we do not expect Care Providers to generally take a different approach to Government guidance. Especially where that guidance involves such a sensitive matter as end of life care and where the Government went to lengths to tell Care Providers that such visits “should continue”. I consider the Care Provider’s concerns might, in an individual case, have justified the refusal of a visit to someone suffering COVID-19 at end of life (for example, if a visitor was showing symptoms of COVID-19 or otherwise compromising infection control policies). But to adopt a policy of refusing such visits, justifies a finding of fault. It should instead have been encouraging its care homes to take decisions on a case-by-case basis following a risk assessment.
63. I acknowledge that ultimately the Care Provider did allow a visit by Mrs J and her siblings to their mother in her final days. But this is not evidence of a case-by-case approach. Because on its own account the Care Provider only relented to allow such visits in the face of the persistence of the family. It had repeatedly told them, as it told me, that its policy was not allow such visits before it changed its mind.
64. That such a visit ultimately took place mitigates some of the injustice Mrs J was caused. But she still experienced unnecessary distress in obtaining that final visit to see her mother, given the Care Provider’s policy at the time. Clearly the visit was also rushed and made more fraught by the difficulties Mrs J experienced in arranging it. This distress was additional to that inherent in visiting a dying parent in the exceptional circumstances of the pandemic.

Complaint about events after Mrs K died

65. Finally, I have considered Mrs J’s concerns about the Care Provider’s response to Mrs K dying. The Care Provider acknowledges that aspects of this could have been handled better. I do not find the Care Provider would be expected to offer any bereavement services to Mrs J but it indicates it can provide some signposting and this did not happen. The Care Provider also acknowledges some poor practice around the packing away of Mrs K’s possessions.
66. However, it has apologised for this, and it refunded money to Mrs K’s estate which it was not obliged to. In my view no further action is merited.

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Recommended action

67. As I have noted above the Care Provider, has at different times apologised to Mrs J for certain distress she was caused. It also paid a refund of money to her estate that it was not obliged to. However, I consider it appropriate to recommend that within 20 working days of this decision it provide her with a further apology which recognises our findings. In particular our finding on its visiting policy and the impact this had on her.
68. I also recommend the Care Provider gives a commitment, to be received within 20 working days of this decision, that it will learn from this investigation in the event circumstances again require it to revisit its visiting policy. We would expect the Care Provider not to adopt blanket policies unless required to by law and to consider individual cases on their merits if it is obliged to restrict visiting. We also recommend it remind care homes of its expectations on contact with families when residents die in its care.

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Final decision

69. For reasons set out above I uphold this complaint finding the actions of the Care Provider have caused injustice to Mrs J. I have set out action I want the Care Provider to take that I consider will remedy that injustice.

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Investigator's decision on behalf of the Ombudsman