Summary: Mrs X complained a Council care home banned her from visiting her grandmother stating her grandmother did not wish to see her. Mrs X says this decision was up for review in December 2019, but the Council’s stance has not changed. There was fault in the way the care home banned Mrs X but this has not caused Mrs X an injustice as her grandmother consented to the ban once she had been assessed to have capacity.

The complaint

1. Mrs X complained a Council care home banned her from seeing her grandmother, Mrs Y, in the care home stating Mrs Y does not wish to see her.
2. Mrs X says this decision was up for review in December 2019, but the Council’s stance has not changed.
3. Mrs X says she has not been able to see Mrs Y for two and a half years until she passed away in July 2020.

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’.

(Local Government Act 1974, section 24A(6), as amended)

6. 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)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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How I considered this complaint

8. I have considered all the information Mrs X provided and discussed this complaint with her. I have also asked the Council questions and requested information, and in turn have considered the Council’s response.
9. Mrs X provided comments on my draft decision. The Council accepted my draft decision. I have considered Mrs X’s comments before making my final decision.

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What I found

10. In November 2016, the CQC produced guidance titled Information on visiting rights in care homes. This guidance was updated in October 2019. This includes a section on what a care provider can do if it believes a visitor poses a risk to other residents, staff or the running of the service. This says:
11. “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.”
12. “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. If the resident lacks capacity to decide who should visit them, the provider must make decisions as described in Section 4 of the Mental Capacity Act (best interests). This includes the requirement to identify the option that restricts the resident’s rights the least, while meeting a specific need.”

Care Home Policy on Visiting the Home

13. The care home has its own policy on allowing people to visit residents in its care. The policy says:
• The person-in-charge can ask a visitor to leave the care home if the visitor is not complying with the homes’ regulations.
• If the person-in-charge decides that visitation from a person is contrary to the well-being of a resident, the person-in-charge can report this to the manager who has the discretion to ban a visitor from the home.
• Any resident has the right to refuse to see any visitor. This right will be respected by the care home.

Background

14. Mrs Y lived with one of her daughters who acted as her primary carer. Mrs Y had acute anxiety and depression. In June 2017, the Council became involved with Mrs Y’s care to support Mrs Y’s daughter and allow her breaks from her role as primary carer.
15. Mrs Y was admitted to hospital in September 2017 following a fall. Mrs Y’s doctor decided that Mrs Y’s condition meant she could not go back home but would need to be discharged to a care home.
16. Mrs Y was discharged into a care home in November 2017. On discharge, the consultant diagnosed Mrs Y with chronic delirium and said that Mrs Y lacked capacity at this time.

What Happened

17. Notes from the care home say that visits by Mrs X and other family members to see Mrs Y in the care home were having a negative impact on Mrs Y’s health. Following family visits Mrs Y’s delirium was exacerbated and she would have disturbed nights. These notes also say Mrs X was verbally abusive to staff at the care home.
18. The care home arranged a family meeting on 27 November 2017 to discuss the impact family visits were having on Mrs Y. The notes from the care home say Mrs X became verbally insulting to the care home manager and threatened police action against the home. The care home manager asked Mrs X to leave the home. The care home manager discussed the matter with the regional director. The care home decided to ban Mrs X from coming into the home to protect Mrs Y’s wellbeing. The notes show that Mrs X’s family agreed with this ban and the care home informed the Council’s safeguarding team and continuing healthcare team.
19. Mrs X complained to the care home about her ban on 13 December 2017. The care home responded on 15 December 2017 explaining that the ban would be upheld as this was in the best interests of Mrs Y.
20. Mrs X complained to the Council about abuse of Mrs Y and her ban from the care home.
21. The Council arranged for a mental capacity assessment of Mrs Y by one of its social workers in April 2018. The social worker determined that Mrs Y had capacity. The social worker asked Mrs Y about whether she wished to see Mrs X. Mrs Y said she did not know why Mrs X had been banned but was happy not to have Mrs X at the home
22. A consultant doctor completed a second mental capacity assessment of Mrs Y in June 2018. The consultant reached the same conclusion that Mrs Y had capacity. The consultant again asked Mrs Y about Mrs X being banned; Mrs Y said she was happy with how things were and did not express a desire to see Mrs X.
23. The Council responded to Mrs X’s complaint in June 2018 following the second mental capacity assessment. It said:
• Mrs Y had capacity and confirmed she wanted to stay in the home.
• The decision to ban Mrs X from the care home was made by the care home but this was done in the correct manner.
• It would explore Mrs Y’s wishes about seeing Mrs X and encourage the care home to review the ban on a regular basis.
24. A council social worker completed a third mental capacity assessment of Mrs Y in December 2018. The social worker maintained that Mrs Y had capacity. Mrs Y did not ask to see Mrs X and wanted arrangements for access to remain the same.
25. Mrs X complained to the Council about being banned from seeing Mrs Y and the sale of Mrs Y’s house in December 2018. The Council directed Mrs X to the Ombudsman about the sale of Mrs Y’s house and promised to investigate Mrs X’s ban from the care home.
26. On 14 March 2019, the Council wrote to Mrs X to say it had obtained Mrs Y’s opinion and she said she did not wish to see Mrs X. Mrs X complained to the Council but the Council maintained that it would adhere to Mrs Y’s wishes as she was deemed to have capacity.
27. On 16 January 2020, Mrs X complained to the Council again about access to Mrs Y. An assistant practitioner completed a mental capacity assessment of Mrs Y on 23 January 2020. Mrs Y was determined to have capacity and declined to see Mrs X.
28. The Council told Mrs X that Mrs Y did not wish to see her but could not share much information as Mrs Y had capacity and Mrs X did not have power of attorney.
29. Mrs X complained to the Council about access to Mrs Y on 1 April 2020. The Council confirmed with Mrs X that the care home had discussed the matter with Mrs Y who had capacity and made the decision not to see Mrs X.
30. Mrs X disputed the Council’s response and brought her complaint to the Ombudsman.
31. Mrs Y passed away on 21 July 2020.

Analysis

32. The care home was within its rights to ask Mrs X to leave the care home in November 2017, the care home manager acted in line with the care home’s policy.
33. The care home banned Mrs X on the same day as the incident involving the care home manager. Any restriction on visiting should either be based on a specific request from the resident, if the resident has capacity to make such decisions, or based on a risk assessment and best interest decision if they do not. Any restrictions on visiting because of a risk to staff or other residents needs to be based on a risk assessment.
34. Any ban must be proportionate to the risk identified and there should also be regular reviews of any visiting restrictions.
35. In this case, the care home did not complete a risk assessment before upholding Mrs X’s ban.
36. But even if I conclude that a risk assessment was done before the ban, the care home did not follow CQC guidance. CQC guidance is clear that an outright ban should only be used as a last resort and any restriction should be proportionate to the risk that a visitor poses to residents and staff. The care home did not consider other proportionate measures as suggested by the CQC prior to putting in place a ban. This was poor practice by the care home and amounts to fault.
37. When Mrs X contacted the Council, it decided to determine Mrs Y’s capacity to obtain her opinion. Completion of a mental capacity assessment for Mrs Y was the correct approach for the Council to take. By April 2018, the Council confirmed Mrs Y had capacity to make her own decisions. Since Mrs Y had capacity, she was entitled to make her own decisions. A person who has capacity has the power to make decisions that others may not see as in their own best interests.
38. Mrs Y did not oppose the ban on Mrs X. This was a decision that Mrs Y was entitled to make. As Mrs Y did not oppose the ban, the care home was entitled to maintain Mrs X’s ban.
39. There have been reviews of Mrs Y’s capacity and her opinion on Mrs X’s ban from the care home. These reviews have taken place on average twice per year prior to Mrs Y passing away in July 2020. I would not find fault with the regularity of the reviews or with the Council and care home abiding by Mrs Y’s decision not to remove Mrs X’s ban.
40. While the care home was at fault for banning Mrs X without following the correct process, I would not consider this has caused Mrs X an injustice. This is because once Mrs Y had been determined to have capacity, she consented to Mrs X’s ban from the care home. Since Mrs Y repeatedly confirmed she was satisfied with Mrs X’s ban this meant the care home’s decision to ban Mrs X was in line with what Mrs Y would have wanted.

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Agreed action

41. Within three months of the Ombudsman Final Decision the Council has agreed to:
• arrange for the care home to update its policy to include completion of a risk assessment prior to a visitation ban and consideration of alternative options to an outright ban as outlined by the CQC.

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Final decision

42. There was fault by the Council, but this did not lead to injustice to Mrs X. As the Council has agreed to my recommendations, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman