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Norfolk County Council (17 017 875)

Category : Adult care services > Residential care

Decision : Upheld

Decision date : 25 Mar 2019

The Ombudsman's final decision:

Summary: The complainant alleges that the Council has restricted him unfairly from visiting his sister at a Care Home and it has removed him as her representative. The Ombudsman considers that there is fault because the Council has failed to properly review the ban, which has been in existence since 2016, and it has relied on historic information from the Home. The Council has now agreed the appointment of an independent mediator to progress the reintroduction of the complainant’s contact with his sister at the Home and it will report back to the Ombudsman in three months about progress.

The complaint

  1. The complainant, who I shall refer to as Mr X, complains that:
      1. the Council, based on the Care Home’s assessments, which I shall refer to as Home Z, has banned him unreasonably from visiting his sister (Ms Y) on the premises;
      2. the Council has removed him as his sister’s representative which means he has no direct involvement or influence in the care provided to her.
  2. The Council and Home Z have investigated Mr X’s concerns. Home Z remains unwilling to allow Mr X to visit Ms Y at the Home. The Council support this view and it remains unwilling to allow Mr X to be his sister’s representative

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The Ombudsman’s role and powers

  1. 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)
  2. Where a council arranges and pays for the residential care, it is ultimately responsible for the care provided. Where an individual organization or private company 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)
  3. 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)

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How I considered this complaint

  1. The Council has investigated Mr X’s concerns.
  2. I have made enquiries of Home Z and of the Council. Both have restricted the information which I can disclose to Mr X. Mr X has made a request to have access to the personal information held on him by the Council. This is a separate matter which I am not considering.
  3. I am investigating Mr X’s complaints since January 2016. I issued a draft decision statement to both the Council, to the Home and to Mr X. I have considered their further comments when reaching my final decision.
  4. Under the Memorandum of Understanding and the Information Sharing Agreement between the Commission for Care Quality (CQC) and the Ombudsman, I will send a copy of the final statement to the CQC.

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What I found

  1. The Care Act 2014 came into force in April 2015. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult who appears to need care and support. The assessment must consider the person’s needs, the impact on their wellbeing, and the results they want to achieve. It must also involve the individual and their carer or any other person they might want involved if appropriate.

Mental capacity assessment

  1. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
    • because he or she makes an unwise decision;
    • based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
    • before all practicable steps to help the person to do so have been taken without success.
  2. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity. Where it is established that a person lacks capacity, there should be a Best Interest meeting and decision.
  3. The Deprivation of Liberty Safeguards (DOLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation.
  4. The DOLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. The Council is responsible for authorising a DOLS.
  5. A relevant person’s representative should be appointed at the time of a deprivation of liberty authorisation. Their role is to “represent and support the relevant person in all matters relating to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using an organisation’s complaints procedure on the person’s behalf or making an application to the Court of Protection”. It is important that the representative has sufficient contact with the relevant person to ensure their best interests are being safeguarded.
  6. A supervisory body is responsible for considering requests for authorisations and commissioning the required assessments. A managing authority is the person registered in respect of a care home. In this case, the Council is the supervisory body: Home Z the managing authority.
  7. An Independent Mental Capacity Advocate (IMCA) is someone who provides support and representation for a person who lacks capacity and who has no one else to support them. Both the resident and the representative have the right to request the involvement of an IMCA.

Residential care

  1. 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 and prosecute offences.
  2. The CQC reported Home Z as good in October 2016.
  3. The CQC issues guidance to care providers on compliance with the fundamental standards of care (known as the Essential Standards at the time of these events). Essential Standards say that care providers should comply with the regulations by ensuring that records about care treatment and support are clear, factual and accurate. Records should be updated as soon as practicable and kept safe.
  4. In November 2016, the Care Quality Commission produced Information on visiting rights in care homes. This includes a section on what a care provider can do if it believes a visitor poses a risk to other residents, staff or to the running of the service. It says:

“Seeing a loved one in a care home can be distressing, especially in the beginning or as they become more dependent because of frailty, illness or decreasing capacity. Bearing this in mind, if issues or conflict develops, the care provider should first meet with the visitor and try to resolve them. Conflict between the provider and a family member or friend may be detrimental to the wellbeing of the resident. If the visitor has concerns about a resident’s care, these should be acknowledged, understood and acted on”.

“Care homes have a duty to protect people using their services. If issues cannot be resolved, as an extreme measure the provider may consider placing some conditions that restrict the visitor’s ability to enter the premises if, for example, they believe (having sought advice from others, like the safeguarding team) that the visitor poses a risk to other people using the service and staff, or to the running of the service. For example, the provider could limit visits to take place in the resident’s room only. Any conditions should be proportionate to the risks to other people or staff and kept under review. The provider must be able to demonstrate that any conditions are not a response to the visitor raising concerns about the service as this would be a breach of the regulations. The provider should seek advice from the local authority’s Deprivation of Liberties team if the resident lacks capacity to make decisions”.

  1. The Health and Social Care Regulations 2014 state that people’s relationship with family and friends should be respected and they should be supported to maintain relationships.
  2. Where a person has been formally sectioned under the Mental Health Act 2003, they are entitled to free s117 aftercare when discharged.

Key facts

  1. Ms Y has a diagnosis of a learning disability, autistic spectrum disorder and mental health difficulties (mood disorder). Ms Y has been placed at Home Z since 2007 and this is paid for by the Council. Ms Y has had a period in a hospital under the Mental Health Act provisions and is therefore entitled to s117 free aftercare. Ms Y is prescribed anti-psychotic medication to manage her mental health disorder. Anti-psychotic medication can cause weight gain.
  2. Ms Y’s mother used to be her main carer and she was actively involved. However, over the past three years, Mr X has become more involved because his mother suffers from dementia.

Events of 2016

  1. In February 2016 Mr X raised concerns about his sister’s diet at a Best Interests meeting. Mr X was keen that Home Z offered Ms Y healthy food options and he was keen to support his sister to lose weight. He asked for details of the menu at Home Z and he wanted to know whether Ms Y had a choice of food at mealtimes.
  2. The Council subsequently advised Mr X that Ms Y did have menu choices and that there was a healthy eating care plan for her and she had lost weight. Mr X was told he could bring in food for Ms Y but it had to be reasonable and practicable. Mr X subsequently brought in some organic milk but care staff told him that there was no room in the fridge.
  3. In April 2016 Mr X made enquiries of the Council, asking for the name of Ms Y’s social worker. Mr X was told that Ms Y did not have an allocated social worker. Mr X explained that he had made a formal complaint to Home Z about the food provided but he had had no response.
  4. In May 2016, the Manager of Home Z contacted the Council. The Manager raised concerns about Mr X asking staff and residents about whether they were happy with the care provided at the Home. Mr X says that he had never asked such a question. The Manager stated Home Z had dealt with Mr X’s complaints by meeting him to discuss matters. Mr X says that the meeting was informal and took place in a café with no formal written response. Mr X made further complaints about this. The Manager told the Council that the situation was becoming untenable.
  5. In June 2016, the Council’s Deprivation of Liberty Team (DOLS) made arrangements to carry out a review of Ms Y’s care. At this stage Mr X was Ms Y’s representative.
  6. On 24 June 2016 Home Z told the Council that it had decided to restrict Mr X’s access and that he was not allowed on site without calling first. Home Z’s Manager stated that there were concerns about how Mr X’s visits affected other residents.
  7. On 27 June 2016, some managers from the Home and the Council’s social worker met Mr X. There is a note of this meeting, but it seems Mr X has not seen this. There was a discussion about Mr X’s concerns regarding his sister’s diet and medication. Home Z informed him that it had received a complaint from a family (dated 5/6/16) about his behaviour. Mr X provided an explanation about what had happened and that he had had a conversation with the service user about a possible holiday with his sister. He felt the family may have misunderstood his questions or ‘got the wrong end of the stick’.
  8. On 29 June 2016, the Home wrote to Mr X telling him that he must give advance notice of visits to his sister, that he should not enter the premises and could only access the car park, he should email questions about his sister to the Manager, and, if his path crossed with another service user, the conversation must be limited to brief small talk.
  9. On 11 July 2016, Mr X attended Ms Y’s annual review held at the Home. It was reported by Home Z that he went onto the premises and spoke to other residents.
  10. The Council’s social worker carried out the review on 11 July 2016. As part of this review, it was noted that Mr X was an appropriate individual to facilitate Ms Y’s involvement. However, the social worker recorded the concerns from Home Z and that Mr X asked inappropriate questions of residents. The social worker stated that it was likely Mr X would be removed as Ms Y’s representative because of Home Z’s ban.
  11. Home Z’s solicitors wrote to Mr X because of the incident on 11 July 2016. The solicitors told Mr X that he was ‘formally prohibited from attending the site...with immediate effect and without exception’. Mr X replied explaining he had wandered into the courtyard by mistake because he was looking for where the annual review was being held. He denied talking to any of the other residents, as alleged, and stated that Home Z had conveniently interpreted his behaviour as ‘wilful’.
  12. On 20 July, the DOLS Team were told by Home Z that Mr X’s contact had been further restricted in that he was not allowed on site and he had to meet Ms Y in the community. Home Z’s solicitors wrote to Mr X explaining this decision.
  13. On 21 July Mr X wrote a detailed letter disputing the information Home Z relied upon to ban him from the premises. In August, the DOLS Team arranged a meeting with Mr X to discuss his role as representative. It also approached an independent advocacy agency and arranged for a best interest assessor (BIA) to be appointed. The BIA visited Mr X, Ms Y and spoke to staff at Home Z. She recommended removal of Mr X as representative.
  14. In late October 2016, as a result of the BIA’s assessment, the Council decided to end Mr X’s position as the DOLS representative for Ms Y on the basis that he was not allowed access to Home Z and he therefore was not in a position to carry out his role effectively. The DOLS Team referred this decision to the supervisory body.
  15. On 10 November Mr X appealed this decision. He disputed that he had been ‘difficult’ as alleged. Mr X explained that all he had asked from Home Z was clarification about care decisions regarding his sister. He stated the ban was based on untruths and that it had robbed him of his role as his sister’s representative.
  16. Further, he questioned Home Z’s assertion that Ms Y’s behaviour had improved because he was not visiting the Home. Mr X explained that his sister’s behaviour had improved mainly because her medication had been reviewed and increased. Mr X pointed out that he could no longer have any conversation with staff about his sister’s progress or activities. Mr X suggested meeting Council officers and the Manager of Home Z to discuss matters. But it appears this was not arranged.
  17. On 29 November 2016, Home Z’s solicitors wrote to Mr X stating he had adopted a ‘disruptive’ approach and made inappropriate comments to the Manager when she was giving her professional view at a meeting at the hospital reviewing Ms Y’s medical plan. Mr X replied disputing the information relied upon.
  18. On 11 December 2016, Home Z asked Mr X to speak to his sister about some of her behaviours at the Home. Mr X said he was happy to do this, but he wanted a private space to speak to her and he suggested his car. He was told his sister could not get into his car.
  19. On 13 December 2016, the Council wrote to Mr X explaining its process in making its decision. It stated that the supervisory body had accepted the BIA’s assessment but, because of Mr X’s appeal, it had sought a second opinion from another Manager. That too had endorsed the Council’s removal of Mr X as his sister’s representative. The reasons were that the introduction of a paid representative should not present a problem and that Mr X could not be an effective DOLS’ representative if he was not allowed access to Home Z.
  20. The Council stated the social worker would review this decision with Home Z every six months. The Council also stated the Council would ask the paid representative to consult Mr X prior to their monthly visits to Ms Y and to take into account his views when she liaised with Home Z and the social worker. Mr X says that the paid representative has not contacted him.

Events of 2017

  1. In 2017 Mr X complained to the Ombudsman about the Council and its failure to properly consider the ban imposed by Home Z. We investigated this complaint.
  2. There was a further letter to Mr X from Home Z’s solicitors on 8 August 2017, stating that he had sent various correspondence about his sister’s diet and that these were attempts to engage in communication outside of the scope of what had been previously agreed. Mr X replied that he had made no agreement to limit the scope of his communication.
  3. In December 2017, we recommended that the Council carried out a review of Home Z’s decision to ban Mr X which should include interviewing Mr X to obtain his views. We also recommended other actions, as follows;
  • to provide written evidence to Mr X if it considered the ban remained proportionate and necessary and there was no less restrictive way to manage Home Z’s concerns;
  • subsequent to this review, the Council should review its decision to appoint a paid representative and consideration should be given to Mr X resuming this role;
  • the Council should appoint an IMCA for Ms Y as part of these two reviews;
  • the Council should consider amending its procedures and advice to social workers about how they should consider a home’s decision to ban a visitor, taking into account the CQC’s guidance.

Events of 2018

Best Interest Meeting of 18 January 2018

  1. As a result of the Ombudsman’s earlier recommendations, on 18 January 2018, there was a Best Interests meeting. Mr X attended. By this stage, the Council had asked a second social worker from the Learning Disabilities Team to assess Ms Y’s capacity to make decisions. The Council had also appointed an independent advocate for Ms Y. Mr X was told that it was decided Ms Y wanted to see her brother but the social worker was unable to establish whether it was important, or not, to Ms Y, where she saw him.
  2. Home Z reported that Mr X’s visits outside the Home appeared to work better for Ms Y and that there were less distractions.
  3. Based on the records I have seen, there was an incident form completed in June 2018 when Ms Y returned from the visit in an aggressive mood.
  4. In June 2018, Mr X made a formal complaint to Home Z about the restriction. On 13 August 2018, the Director replied, stating that the Home had listened to his concerns and that the decision to ban him from the premises had not been taken lightly.

The Council’s position

  1. The Council had reviewed the current ban and the removal of Mr X as his sister’s representative. It remained satisfied that the decision was valid because Mr X had failed to comply with the measures suggested by Home Z, a service user’s family complained (in 2016) and that, at the last review, Ms Y indicated that she enjoyed her meetings at a café with Mr X but she was not able to say where she would like these visits to take place. The Council says that a review of the ban takes place at Ms Y’s annual reviews.
  2. The Council has no specific policy regarding the ban of relatives from care homes. But it is aware of the CQC guidance. It has an Adult Safeguarding Policy but this is not relevant to this complaint.

Home Z’s information

  1. Home Z has provided a chronology of events and Mr X has provided comments on the information he has seen.
  2. The Ombudsman can only provide brief information from Home Z because both the Council and the Home have stated Mr X has no legal entitlement to the information about his sister.
  3. Home Z says that Mr X is regarded as Ms Y’s ‘next of kin’ but he has no legal basis to make decisions about her care and well-being.
  4. Home Z’s concerns are broadly that, in 2016, staff perceived Mr X to be “aggressive, intimidating or inappropriate” and that he subsequently lodged “unfounded and unmerited complaints” to justify his behaviour. Home Z’s concerns were exacerbated when managers were informed Mr X was approaching other residents to elicit information. One family made a complaint to the Home, but Mr X has not seen this. However, the allegation was primarily about him approaching another service user and asking questions inappropriately about the care provided.
  5. Home Z says that Mr X has made unreasonable requests for information and moreover Mr X has continued to display conduct of an ‘agitated and disruptive nature’. On 3 December 2017 staff recorded that Mr X did not adhere to instructions that were in the interests of Ms Y. And in April, June and July 2018 Home Z had reason to be concerned about Mr X’s behaviour. Mr X says that he is unaware of what the concerns were about him at this time.
  6. Home Z has devised and implemented a ‘Relatives and Friends’ written policy. Its latest is dated June 2017. The policy refers to encouraging relatives to visit residents and that there should be no restrictions placed on contact unless at the request of the service user or the involvement of other supporting professionals.

Mr X’s information

  1. Mr X explained that, prior to 2016, he had always seen his sister at the Home and he, his mother and brother would stay one evening to have a meal with her. Mr X feels that the link between his sister’s daily life and himself has broken down and his sister would benefit from seeing him at Home Z, which is her home, as well as outside the Home.
  2. Mr X disputes much of the evidence relied upon by Home Z but he is at a disadvantage because he is not entitled to see some of the direct evidence. Mr X also considers that his information refuting Home Z’s assertion is not properly considered and he has not had a proper opportunity to challenge the Home’s version of events.
  3. Mr X questions what the ‘probing’ questions were, which he has asked. He is interested in his sister’s well-being but Home Z often ignore his questions. He wants to contribute to his sister’s care in an open and transparent way but feels he has been marginalised. He wants to contribute to her care as he did between 2007 and 2016.

Analysis

  1. Any restriction on visiting should either be based on a specific request from the resident, if the resident has capacity, or a risk assessment and best interests decision if they do not. Any ban must be proportionate to the risk identified and there should also be regular reviews of any visiting restrictions.
  2. Mr X can see his sister but only outside Home Z. While Mr X appreciates the opportunity to take his sister out, Mr X continues to want to see her in Home Z, as well, given it is her home. He feels that this would be more ‘normal’ for Ms Y and himself and it would show his sister that he is interested in her life.
  3. I cannot determine the validity, or otherwise, of what Home Z and the Council alleges about Mr X’s approach. Mr X does ask questions and might challenge professionals’ views at times. But he would argue that this is done out of a concern for his sister and that Home Z pays little heed to his questions in any event.
  4. Home Z’s decision to ban Mr X from the premises was based primarily on the 2016 events. Home Z says Mr X’s ‘inappropriate’ attitude has continued and staff have recorded events, since 2016, which Home Z considers merits the continuation of the ban. The problem is that Mr X has not seen staff’s records of these times and therefore he has had no chance to provide different evidence or explanation.
  5. I also note that Mr X sees his sister weekly and that, since his visits took place outside the premises, I am not aware of many reports of ‘inappropriate’ behaviour by Mr X. He might have asked a question of the care staff accompanying Ms Y on the visit about her care. But it would be normal for a relative to do so.
  6. There have been reviews of the ban. But it appears that Home Z and the Council have not reconsidered the ban with an open mind or been willing to consider that, with the passage of time, reintroducing visits at the Home might be different now. I am sure Mr X, who is anxious to resume his role in his sister’s life, would be careful to ensure his behaviour avoided criticism in the best interests of his sister.
  7. It is also the case that Ms Y has made it clear that she wants to see her brother. He is the only family member who visits on a regular and consistent basis. Even if she cannot say so, this must be important to her.
  8. The ban has now been in place for two and a half years. The CQC recommends regular reviews. There have been reviews but, based on what I have seen, these reviews have relied primarily upon previous criticisms of Mr X. There seems little willingness to consider whether he might act differently now, if he visited his sister at the Home.
  9. I therefore consider the Council has been at fault in that it has been unwilling, in conjunction with the Home, to take a fresh look at the ban. I also consider, on the evidence which I have seen, that there is insufficient evidence to support the continuation of ban.

Agreed action

  1. I have explained to the Council that, in my view, Mr X’s contact with his sister at the Home should be reintroduced but, in the interests of fairness to all parties, the Council should engage an independent mediator to decide how best to achieve this. However, at all points in the process, the Council will have Ms Y’s wishes, if she is able to express them, or her best interests, first and foremost in mind.
  2. Further, the Council, the Home and Mr X should agree the choice of mediator and it will then be for the mediator to start to make the necessary arrangements to reintroduce Mr X’s contact with his sister at the Home. In the event of disagreement about the mediator, the Council should make the final decision.
  3. I recommend that this mediation starts within two months of the date of my final decision statement. However, if a mediator can be found sooner, that would be beneficial. It will also be entirely the mediator’s decision as to how he or she will work towards a shared and realistic plan for contact, at the Home, and to make other decisions in the event of any new evidence supporting this.
  4. I also recommend that the Council reports back to the Ombudsman within three months of the date of this final statement.
  5. The Council has agreed to the above actions.

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Final decision

  1. There has been fault by the Council causing Mr X an injustice. The Council has agreed to appoint an independent mediator to progress the reintroduction of contact and to report back to the Ombudsman in three months.
  2. I have therefore completed the investigation and I am closing the complaint.

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Investigator's decision on behalf of the Ombudsman

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