Summary: There is evidence of fault by the care home, it failed to seek Mrs Y’s views about alleged comments made by Mrs X. It later failed to establish Mrs Y’s wishes about future visits from Mrs X. The care home failed to deal with Mrs X fairly.

The complaint

1. Mrs X complains about the actions of care staff when she was visiting her friend, the late Mrs Y at The Chocolate Works Care Home on 30 November 2019. She says care staff misinterpreted a conversation she had with Mrs Y and subsequently asked her leave and said she could never return.

Back to top

The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. If there has been fault, we consider whether it has caused an injustice and, if it has, we may suggest a remedy. (Local Government Act 1974, sections 34H(3) and (4), as amended)
3. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

Back to top

How I considered this complaint

4. I have:

• considered the complaint and discussed it with Mrs X
• considered the correspondence between Mrs X and the Care Provider, including the Care Provider’s response to the complaint
• made enquiries of the Care Provider and considered the responses
• taken account of relevant legislation
• offered Mrs X and the Care Provider an opportunity to comment on a draft of this document, and considered the comments made.

Back to top

What I found

Relevant legislation

5. 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.
6. The Care Quality Commission (CQC) is the statutory regulator of care services. It keeps a register of care providers who show they meet the fundamental standards of care, inspects care services and issues reports on its findings. It also has power to enforce against breaches of fundamental care standards.
7. When investigating complaints about the standards of care in a care or nursing home, the Ombudsman considers if the 2014 regulations and the fundamental standards have been met. If they have not, we consider whether any identified faults have resulted in injustice.
8. The Care Quality Commission produced ‘Information on visiting rights in care homes’. It says visits should be enabled, unless there are compelling reasons to say they are not in a person’s best interest. These reasons should be agreed through a Mental Capacity Act decision making process.

What happened

9. Mrs X had known Mrs Y for many years and visited her regularly at the care home. During Mrs X’s visit on 30 November 2019 she says two carers claimed they overheard her saying she wanted Mrs Y to die. Mrs X says she and Mrs Y spoke about dying and Mrs Y said she was not afraid to die. Mrs X says the carers misinterpreted the conversation.
10. Mrs X says within ten minutes a supervisor at the care home told her she had to leave and could not return, and that Mrs Y’s son requested she did not visit again.
11. Mrs X says the matter has caused her great distress, not just the nature of the allegation but also she was unable to visit a valued friend before she died.
12. Mrs X says Mrs Y had capacity to make decisions about visitors and because of the ban, Mrs Y was denied visits from her.
13. The care home says a carer reported that when she took the lunch tray into Mrs Y, Mrs X asked her to take the tray back as Mrs Y was dying. This carer informed Mrs X she would get the nurse. The carer says Mrs X responded by stating she hoped Mrs Y would die soon as she had an appointment.
14. The carer informed another member of staff, who then attended Mrs Y. It is alleged Mrs X said, ‘I don’t think she will be here tomorrow’. This was reported to a senior carer.
15. The senior carer attended Mrs Y’s room and asked to speak to Mrs X outside of Mrs Y’s room. The carer told Mrs X it was not appropriate to say Mrs Y was dying and speak about it in front of Mrs Y. The carer alleges Mrs X began raising her voice, so she placed a hand gently on her shoulder to calm her and said it was not the place to shout and asked Mrs X to leave the building.
16. The care home says because Mrs X was distressed there was no opportunity to seek Mrs Y’s views prior to Mrs X leaving.
17. Mrs X says she was physically removed from the building. The care home says Mrs X was not physically removed from the home, that she was able to sign out of the building as she usually would. I have seen a copy of the visitors signing in/out sheet which shows Mrs X signed in at 10.55am. A time of 13.00 hrs was entered as her leaving time. I am unable to say who entered the leaving time.
18. All the carers involved reported the incident in Mrs Y’s daily care notes and completed handwritten incident reports. I have seen copies of these documents, all dated 30 November 2019. One carer reported another carer placed an arm on Mrs X’s arm, another reports a hand was placed on Mrs X’s shoulder. All report Mrs X to have shouted at care staff.
19. The care home reported the matter to Mrs Y’s son. He subsequently wrote to the care home to confirm his wish, that Mrs X did not visit Mrs Y again. I have seen a copy of the handwritten letter from Mrs Y’s son.
20. Mrs X wrote to the care home and the company head office on 1 December 2019 to complain. She said she had been frightened by the action of the carers and that she had been pushed out of the room and back down the corridor.
21. An officer from the Council’s contracts team contacted the care home on 1 December 2019 and asked for a copy of the findings from the care home’s investigation.
22. The care home wrote to Mrs X on 6 December 2019 with a ‘holding letter’ saying it was investigating her complaint.
23. The care home commenced an investigation. I have seen a copy of the investigation report completed by the care home.
24. The care home spoke with Mrs Y’s son on 8 December 2019. He said he was happy for his letter to be shared with the Council’s safeguarding team and “anyone else who needs it as part of the investigation…”
25. The care home informed the Council contracts officer of the findings of its investigation on 8 December 2020. The Council took no further action.
26. Mrs X did not visit Mrs Y again. Mrs Y. Mrs Y sadly passed away on 18 May 2019.

Analysis

27. It is not possible for me to determine the content of the conversation between Mrs X and Mrs Y. However, it is clear a difficult situation arose between the carers and Mrs X. The records show Mrs X to be distressed and raising her voice. Whatever the reason for this, I cannot criticise carers for asking her to leave the building.
28. I now come to Mrs X’s allegation about how she left the building. It is not possible for me to come to a finding on Mrs X’s allegation that she was physically removed from the building. It is clear there was some physical contact from carers and some discrepancy about the exact nature of it, with one carer reporting a carer touched Mrs X on the arm, another on the shoulder. I am unclear why any physical contact was deemed necessary.
29. Given the difficult circumstances it is understandable that carers did not involve Mrs Y at that point. However, carers should have later established Mrs Y’s interpretation of the conversation with Mrs X and recorded it.
30. The care home took instruction from Mrs Y’s son about Mrs X’s visits. Whilst it was good practice to inform him about the matter, it was not for him to decide who should visit Mrs Y. The care home should have discussed the matter directly with Mrs Y.The capacity assessment of Mrs Y shows she was able to make informed decisions ““Although [Mrs Y] is forgetful at times, she is deemed capable at present to make an informed decision, however, may require support to do so”. She was denied this opportunity. This is fault by the care home.
31. Any restriction on visiting should either be based on a specific request from the resident, if the resident has the capacity to make such decisions, or a risk assessment and best interest decision if they do not. Any restrictions on visiting because of a risk to staff or other residents should also be based on a risk assessment. The care home failed to adhere to this process.
32. The injustice to Mrs X is to some extent dependent on whether Mrs Y wanted to see her. Nevertheless, the care home did not deal fairly with Mrs X because it failed to follow the correct process in establishing Mrs Y’s view on the alleged conversation and her wishes about future visits, for that reason the care home should to apologise to Mrs X.

Agreed action

33. The care home should, within four weeks of the final decision:

• write to Mrs X apologising for failing to establish Mrs Y’s views on the alleged conversation and her wishes about future visits
• consider what action it needs to take to ensure it deals with such matters properly in future.

34. Provide evidence of all the above to this office.

Back to top

Final decision

35. The Care Provider was at fault because it failed to establish Mrs Y’s views on the alleged conversation and her wishes about future visits from Mrs X
36. I find no fault in the care home’s decision to ask Mrs X to leave the building during an incident on 30 November 2019.
37. I am unable to come to a finding that Mrs X was physically removed from the care home.
38. It is on this basis; the complaint will be closed.

Back to top

Investigator's decision on behalf of the Ombudsman