Summary: Mr C complained the care home prevented him from visiting his mother for a week during a norovirus outbreak. Mr C says this was not in line with Public Health England guidelines. The Ombudsman found fault, particularly in the area of record keeping and the way it responded to Mr C’s complaint. The care provider has agreed to apologise to Mr C for this and share the lessons learned with its staff.

The complaint

1. The complainant, whom I shall call Mr C, complained to us on behalf of himself and his (late) mother. Mr C complained that the care home where his mother lived (West Hall Care Home), did not allow his mother to have any visitors between 22 and 29 November 2017, during an outbreak of Norovirus. As such, he was prevented from visiting her in the home.
2. Mr C says the care home falsely claimed that it was following guidance from Public Health England (PHE) and that PHE had approved its approach with regards to stopping visitor access. Mr C says the home also misled PHE, the Surrey Council Adult Safeguarding team and the CQC about its approach.
3. Mr C was also unhappy about the way in which the care provider investigated his complaint.

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The Ombudsman’s role and powers

4. 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)
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. 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)

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How I considered this complaint

7. I considered the information I received from Mr C and the care provider. I also obtained information from the Council, the Care Quality Commission (CQC) and Public Health England (PHE). I shared a copy of my draft decision with Mr C and the Council and considered any comments I received before I made my final decision.

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What I found

What should have happened?

8. The “PHE Infection control guidance for suspected viral gastroenteritis in care homes” said:
• A care home has to inform visitors of the outbreak and consider limiting their visits especially the elderly and the young.
• Visitors should not visit the care home if symptomatic until they have been symptom free for 48 hours.
9. The PHE document “NOROVIRUS - Information for Staff” says:
• The resident should remain in their room for at least 48 hours after their symptoms have resolved.
• If possible, visits should be limited to those considered essential.
10. PHE told me that, in addition to the above, its standard advice to care homes with regards to visitor access, following an outbreak of ‘diarrhoea and vomiting’, is that:
• They should close to admissions, discharges, transfers and “non-essential visitors”.
• Visiting should not be restricted for those receiving end of life care.
11. The “Guidelines for the management of norovirus outbreaks in acute and community health and social care settings”, describes “non-essential visitors” as: visits from newspaper vendors, hairdressers, mobile libraries etc.
12. The care provider’s own “Infection Outbreak Management Protocol” says that:
• The home or location manager should notify PHE (for advice and support) and family members, in the event of a suspected outbreak.
• The home or location manager is responsible for compiling and cascading a briefing to notify all colleagues. The briefing should include control measures to be taken to limit the risk that the outbreak will escalate.
• It is the home or location manager's responsibility to decide what are the appropriate measures to take based upon: a risk assessment and recommendations made by external bodies for example PHE. Visitors may be restricted or visits postponed
• A central file should be created that stores all information relating to the suspected outbreak. This may include the action taken by whom and when.

What happened?

The decision to restrict visits

13. An infection outbreak occurred in one of the buildings of the care home (hereafter referred to as “building X”) where Mr C’s mother lived. It officially started on 22 November 2017. During the outbreak, Mr C’s mother did not become infected. Mr C says the care home:
• Told him in person, and subsequently on several occasions by email, that no visitors would be allowed access to the home.
• Did not tell him that it would make an exception for those residents who were receiving End of Life care.
• Told the residents they would not be allowed to have any visits for the duration of the outbreak. The home did not, as implied by the home, have “a discussion” with each resident to explain the situation and “ask” if they would agree to temporarily stop their visits.
14. Mr C says that, as a result of the care home’s actions, he was unable to visit his mother in the care home for several days.
15. The records show the care home notified PHE of the outbreak on 23 November 2017. It also notified CQC. The CQC notification form said building X is “closed for all visitors”.
16. The care provider says the manager of building X sent an email to all family members on 22 November to inform them of the outbreak. However, the care provider was unable to provide a copy of this. The care provider told me it could not produce a copy, because the manager was no longer employed by the home. Mr C told me he did not get this email, nor did the son of another resident that he contacted. The manager said the email could have been sent to Mr C’s sister, who was ‘first point of contact’. However, Mr C said the home always spoke to him first and his sister has not received an email either.
17. The care home manager told me:
• She spoke to residents at the time about visits, and the residents were happy to follow the care home’s advice and request not to have any visits. She said Mr C’s mother was fully aware of the virus and agreed with the policy of restricting visitors.
• While she does not have recorded evidence to support the conversations with residents, some residents would be willing to provide a statement to that affect.
18. I have since received statements from two residents. The statements said:
• Staff explained that visits had to be restricted to only necessary visits, due to the seriousness of the virus
• We were well informed, and all residents understood and supported this, because they did not want to become infected.
19. The care home manager said they contacted Mr C’s sister, who was her mother’s Power of Attorney (PoA). The daughter also agreed that the care home’s approach was the best course of action. However, Mr C told me his sister has only PoA for finance and not for welfare / wellbeing.
20. The care home said it always immediately contacts the PHE whenever there is an outbreak. However, I found there is a lack of clarity about what was discussed and / or agreed during this important conversation:
• The care home says it explained to PHE on 23 November 2017 how it would tackle the outbreak, and that PHE agreed with its approach. However, I found the care home failed to record what was discussed. In its complaint response to Mr C on 16 February 2018, the care provider said that during the telephone call, PHE said that: general visitation should cease during the outbreak.
• However, PHE told me that:
1. “General visitation” is not a phrase that it would use. It had given the home the standard advice that a home should not restrict visits for those receiving end of life care, and that the care home should stop visits by “non-essential visitors”. It will usually explain what “non-essential” means and give examples, such as: hairdresser, massage therapist etc. The meaning of “non-essential visitors” is also described in “Guidelines for the management of norovirus outbreaks” (see paragraph 11 above).
2. Following the telephone call by the care home, it sent two documents to the care home (see paragraph 8 and 9 above). They suggest that visitors are permitted with sensible precautions in place.
• PHE provided a copy of its record of the conversation it had with the home. The record shows the care home informed PHE about some general measures it had put in place. The record did not mention there was a discussion about visits.
• In a telephone recording provided to me by Mr C, the PHE told Mr C that it was possible that its message to the home had not been as clear as it should have been, and that the home probably interpreted its advice too stringently.
• The Care Quality Commission (CQC) had a telephone call with PHE on 29 November 2017 and recorded that: “PHE advised it had given the home the standard advice: close home to non-essential visitors. Only for people on End of Life or the family insistent.”
21. The care home provided a copy to me of a briefing note it says it gave to its staff. The briefing note, which should have been signed, said that: We have taken the decision to close building X to all visitors except in the case of End of Life Care. Both residents mentioned in their statement that signs were put throughout. Mr C told me the signs were only put up during the second week.
22. The manager told Mr C in several emails (including two on 24 November 2017), that the home had discussed and agreed with PHE, that it should “close to all visitors”, and that she would: not be allowing any relatives into building x, until we have been clear of symptoms for 48 hours. She told Mr C that the home’s policy was informed by Government Guidelines and referred to the “PHE Infection control guidance for suspected viral gastroenteritis in care homes”. However, this guidance does not recommend closing a care home to all visitors.
23. The manager told me she personally told Mr C during the first week that the home would allow access to residents who were seriously unwell. However, Mr C denies this, and there is no reference to it in the emails she sent to Mr C during the first week, which only mention that no relatives would be allowed in.
24. As the care home had told Mr C that he was not allowed to visit his mother, he told the home that he would therefore take his mother out of the home for a visit into the community. The home told Mr C it would not prevent his mother from doing this. Mr C took his mother out for a few hours on 25 and 27 November.
25. Mr C says he was concerned about the care home’s decision to stop all visits to residents, and therefore decided to contact the Council and the CQC. The care home has provided the following information to the Council and the CQC, about the way it dealt with visits during this time. It said:
• It “advised” not to visit, until the infection passed. The care home “asked friends and family to refrain from visiting".
• During the first ten days, it set in place the standard policy as recommended by the PHE that visiting was stopped, except for residents who were on end of life. The home will follow the same policy in future, unless PHE changes its guidance.
• It enabled some relatives to visit in the front entrance if they had come a long way – or they insisted on talking to the resident. This would have been facilitated too if the resident insisted on the visit. However, no residents said they wanted the home to enable visitors.
• In line with PHE guidelines, it is always recommended to close care homes to visitors during an outbreak.
• It would never close the home to visitors of residents who are on End of Life care.
• It enabled residents to go out into the community with a family member. The manager told Mr C on 16 February 2018 that the home encouraged its residents to go out to see their visitors.
• It told PHE of all the actions the home was taking, who agreed the actions were correct and in line with its guidance, regulation and policy.
26. However, Mr C says:
• The home only ‘advised’ people not to visit after 30 November 2017. Before then, it told him and other the residents and relatives that the home was closed to all visitors.
• Neither the PHE, nor its guidance, said that homes should be closed and visits should be stopped.
• The home did not ‘enable’ visitors to meet residents ‘in the reception area’. Neither relatives, nor residents, were told that this could be arranged. It was only, in the end, allowed in a handful of exceptional cases. Most of the 30 odd residents did not have any visits. The area is small, uncomfortable and unsuitable for visits to take place.
• Residents did not insist on having visits, because the home had told them that visits were not allowed.
• The home did not ‘enable or encourage’ residents to go into the community instead. The home was against this and only said it could not stop residents from doing this.
27. Mr C proposed on 25 November 2017 to visit his mother’s room via her external door. This meant that he would not enter any other part of the care home. However, the care home manager did not allow this.
28. The manager sent an email to next of kin on 27 November 2017. This email read as if it was the first email related to the outbreak. The email informed relatives of the outbreak and said: “Building X will remain closed to visitors until the infection has cleared”. This was followed up by another email two days later, which said: "Building X will remain closed until we are 48 hours clear”.
29. When the outbreak continued, the care home spoke again with PHE. The care home subsequently decided to ease the restrictions and it informed family and friends on 30 November. The email said: “Norovirus still present. Due to the length of the outbreak we have decided that whilst we would still recommend no visiting, if you feel that you still wish to visit, staff will enable you to do so with the guidelines that are attached”. Mr C says he does not have a problem with the way in which the care home handled the outbreak after 30 November.
30. The care home said it made this decision because it felt that, considering the duration of the outbreak, continuing the restrictions would not be in the best interests of all the residents and have a negative impact on their wellbeing.
31. After the virus was cleared, Mr C asked the manager if the care home would follow the same course of action if there would be another outbreak in the future. The manager told Mr C that: ‘I would follow the same policy, close the home to visitors except for those with palliative care, and then re-evaluate if the outbreak continued’.
32. The care home also told Mr C that if his mother would exhibit symptoms of the virus, he would not be allowed to visit her anymore. It said this was in line with the PHE’s advice, which says that residents should remain in their room to stop the spread of infection. However, the PHE told me that its advice, with regards to visits to residents who are infected, is the same as above: consider stopping non-essential visits, and a warning to any visitors that they are putting themselves at risk by visiting.
33. The care home informed all family members on 6 December 2017 that building x was clear of the infection.
34. Mr C said he wanted an assurance that the home will not ban visits again, if another infection occurs in the future.
35. The Council visited Mr C’s mother, in response to the concern he raised about the ban on visits. The record of the visit states that Mr C’s mother, who had been a nurse for some time, said the home did their best to manage and contain the infection; she did not wish to take the concerns her son had raised further.
36. Mr C says his mother had difficulties with her short-term memory and probably did not remember anymore, when the officer visited, what the circumstances had been about visiting. He says his mother asked him every day on the phone, during the visit-ban, when he would visit her again, and was always happy to see him.
37. The CQC told the care home that, during its last inspection in June 2016, it did not identify any concerns around infection control. The CQC told me that it will assess the care home’s general infection control measures again during its next inspection of the home.
38. A more recent PHE Publication from September 2018, is called “Infection Prevention and Control: An Outbreak Information Pack for Care Homes”. It says that: “Visitors should not be stopped from visiting if they wish, as long as they are aware they may become ill themselves”. This makes it clear that, if there is a future outbreak at the home, PHE advises that relatives / friends should not be stopped from visiting.

The complaints process

39. Mr C says the care provider’s complaints procedure / investigations ignored everything he had said, and the written evidence he provided of wrongdoing.
40. Mr C made a complaint in December 2017 about the way the care home had handled the outbreak during the first week. Mr C wanted an assurance from the care home that he would be allowed to visit his mother, if another outbreak would happen in the future.
41. Mr C says that, after a lengthy phone call and sending a detailed email, the complaint investigator rejected his complaint. The investigator told Mr C she had reviewed actions and protocols and said ‘No visits’ was the care provider’s policy based on guidance by PHE. The investigator failed to properly respond to Mr C’s key argument that ‘no visits’ was not in line with PHE guidance.
42. Mr C appealed the outcome in January 2018. The second investigator asked him to submit all the evidence he had in support of his complaint. The investigator concluded that:
• The manager followed internal procedures and referred to the care provider’s policy pertaining to an infection outbreak.
• The manager also said residents were encouraged to go out to see any visitors, which Mr C disagreed with.
43. The investigator failed to explain what the procedure and the policy said about visits, and why or how she believed this was followed.
44. Mr C says the second complaint did not properly consider and respond to the specific comments he made about the first investigation, or the evidence he provided. It did not identify any faults and appeared to have been based on what the home manager told her rather than any recorded evidence (including the emails he provided). I agree.

Assessment

45. The care home called PHE immediately at the start of the outbreak. On the balance of probabilities, there was a conversation during this call about what restrictions the care home would and/or should put in place on visits. However, I am unable to come to a view how this was discussed and/or how the PHE explained to the home what its standard advice was. PHE told Mr C that it was possible that its message to the home had not been as clear as it should have been. The home says it followed PHE’s advice, as obtained during the telephone call, to restrict visits to those residents who were on End of Life.
46. However, Mr C was correct in pointing out that the care home’s approach during the first week was not in line with the standard guidance PHE says it gives to care homes, as explained in paragraph 20. However, for reasons explained above in paragraph 45, I am unable to conclude this was fault.
47. The care home consistently told Mr C during the first week that it was “closed to all visitors”. This was not correct or accurate, because the care home allowed visits to those who were on end of life.
48. I found there were other shortfall as well, with regards to the way in which the care home recorded important events:
• The home failed to send an email to relatives at the start of the outbreak, even though this was required under its own protocol (see paragraph 12 above). It only sent this five days after the outbreak started.
• I have no reason to doubt that staff spoke to its residents at the start of the outbreak about what actions the home would take. However, the care home failed to record what it discussed with Mr C’s mother (and other residents) and if / how / that it obtained her / their consent to (temporarily) stop any visitors coming into the home. This was important, which the care home failed to do.
• The care home’s “Infection Outbreak Management Protocols” states the care home should create: a central file to store all information relating to the suspected outbreak. This may include the action taken by whom and when. I have seen no evidence that such a file was created for this outbreak.
49. I also found that some of the information the care home provided to the Council and CQC (see paragraph 25) was not accurate or incorrect:
• Based on the balance of probabilities, I find the home told relatives that visits to the home would be stopped, rather than asked or advised / requested them. This was certainly the case with Mr C.
• Residents did not insist on having visits during the first week, because they had been told that visitors were not allowed.
• The home did not ‘encourage’ residents to go into the community instead.
50. After 30 November, the care home allowed visits to all (not infected) residents.
51. If the care home had followed the official standard PHE guidance (see paragraph 20), which is to only stop non-essential visitors, Mr C should have been allowed to visit his mother during the first week of the outbreak. However, while it is important to consider the PHE guidance when dealing with an outbreak, it is ultimately the home or location manager's responsibility to decide what the appropriate measures are to prevent the spread of an outbreak and to protect the residents.
52. Going forward, the most recent PHE Publication from September 2018 is clear that: “Visitors should not be stopped from visiting if they wish, as long as they are aware they may become ill themselves”.
53. The care home told me that it was unable to provide me with a particular email, because the staff member had since left. It is not in line with proper record keeping, to have a system in place where the care home can no longer access certain records (such as emails) after a staff member has left the care home.
54. The complaint responses did not sufficiently address and respond to the specific arguments Mr C had put forward.

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Agreed action

55. I recommended that, within four weeks of my decision, the care home should:
• Provide an apology to Mr C for the fault identified in paragraph 47 and 54.
• Remind the care home manager of the importance to:
1. Keep a clear record of what it explains to residents about the measures the home will put in place, the reasons why and if each resident agrees with this.
2. Immediately inform relatives / family members when there is a virus outbreak (by email), and what the visit arrangements will be during the outbreak. There was no evidence this was done during the first few days.
3. Keep a clear record of telephone conversations it has with outside bodies, such as the Council and PHE, when there is an outbreak.
4. Create a central file to store all information relating to the outbreak.
• Review its infection control policy and procedure in light of the most recent PHE guidance (see paragraph 52).
• Review its system to ensure it will continue to have access to certain records (such as emails) after a staff member has left.
• Share the lessons learned with its other care homes.
• Share the shortcomings identified with the staff members who dealt with Mr C’s complaint.

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Final decision

56. For reasons explained above, I found there was fault in some of the actions of the care home. I am satisfied with the actions the care provider will carry out to remedy this and have therefore decided to complete my investigation and close the case.
57. Under the terms of our Memorandum of Understanding with the Care Quality Commission, I will send it a copy of my final decision statement.

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Investigator's decision on behalf of the Ombudsman