Summary: Ms B complained about the care provider’s decision to restrict her contact with her sister and the way it communicated with her. The care provider restricted Ms B’s contact with her sister without following a clear procedure or CQC guidance, delayed giving her an opportunity to respond to the allegations made, failed to keep proper records of the investigation, failed to communicate the outcome of the investigation to Ms B properly and prevented her visiting her sister on the day before she died, despite having reinstated visits following mediation. This caused Ms B distress and led to her going to time and trouble to pursue her complaint. An apology and payment to Ms B, along with introduction of a procedure to follow when restricting a family members access to a resident, is satisfactory remedy.

The complaint

1. The complainant, whom I shall refer to as Ms B, complained the care provider:
• failed to properly communicate with her about concerns in 2017 and 2018 before beginning a safeguarding investigation;
• unreasonably restricted her contact with her sister in 2019;
• restricted her contact without giving her the opportunity to respond to the allegations made;
• failed to tell her about the outcome of the care provider’s investigation;
• prevented her visiting her sister leading up to her death in March 2020, despite the fact the care provider had agreed to allow visits to resume following mediation; and
• failed to tell her about her sister’s death in March 2020.
2. Ms B says she has suffered stress and emotional strain and was upset at not having an opportunity to say goodbye to her sister. Ms B is also concerned about the impact on her sister, who was not involved in the decision to restrict her contact.

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What I have investigated

3. I have investigated Ms B’s concerns about what happened in 2019. The final section of this statement contains my reason for not investigating the rest of the complaint.

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The Ombudsman’s role and powers

4. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a care provider has done. (Local Government Act 1974, sections 26B and 34D, as amended)
5. 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)
6. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

7. As part of the investigation, I have:
• considered the complaint and Ms B's comments/comments from other family members and friends;
• made enquiries of the care provider and considered the comments and documents the care provider provided.
8. Ms B and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
9. 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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What I found

What should have happened

10. The Care Quality Commission (CQC) has introduced guidance on visiting rights in care homes (the guidance). This says care home providers should enable a resident to see their family and friends if the resident wants to. Staff should respect residents’ relationships and give them as much privacy as possible. If they do not do this, it may mean the care provider is in breach of a number of regulations in the Health and Social Care Act 2008, against which CQC can take action.
11. For residents who lack mental capacity to make decisions about who visits them the guidance says visits should be enabled, unless there are compelling reasons to say they are not in the person’s best interest. It says these reasons should be agreed through a Mental Capacity Act decision making process.
12. The guidance says 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) the visitor poses a risk to other people using the service and staff, or to the running of the service. Any conditions should be proportionate to the risks to other people or staff and kept under review. The provider must be able to demonstrate 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.

What happened

13. Ms B’s sister was living in a care home and Ms B visited her regularly. In September 2019 the management of the care home says it became aware of Ms B talking to other relatives and allegedly making damaging comments about the quality of care provided by the home. The home says it also became aware of Ms B getting the home address of a power of attorney for her sister and was concerned there had been a data breach. The care provider wrote to Ms B on 12 September. The care provider told Ms B’s relatives other residents had reported Ms B making damaging comments about the quality of care provided and the home had received evidence she had spoken to another resident seemingly with a view to invite negative comments. The care provider said it would investigate and while it was investigating Ms B could not visit the home or her sister.
14. On 8 October the care provider wrote to Ms B to tell her it had completed its investigation and would write to her in the next few days to tell her about the decision made. On 14 October the care provider invited Ms B to meet with the home’s operations manager to discuss the findings. The care provider arranged a meeting for 6 November. Ms B did not feel able to attend the meeting.
15. Ms B asked the care provider to consider mediation. Mediation took place on 20 February 2020. That resulted in a written agreement between the parties, some of which required acceptance by the powers of attorney. Following the meeting the care provider allowed Ms B to resume visits to her sister subject to the terms of the agreement. Ms B visited her sister on 20 and 25 February.
16. Ms B says she tried to visit her sister on 29 February. Ms B says the care provider turned her away because staff had been told she could only visit her sister when the manager was present and managers did not work at the weekend. Ms B’s sister sadly died the following day.

Analysis

17. Ms B says the care provider was wrong to restrict her contact with her sister in 2019. Ms B says the care provider’s decision to restrict her contact with her sister was based on concerns which were not serious, were unlikely to cause harm to any person and reintroduced matters which had been resolved from 2017 and 2018.
18. The first point to make is the role of the Ombudsman is to consider the administrative process followed by the care provider. It is not the Ombudsman’s role to question the merits of a decision reached without fault. The key is therefore what process the care provider followed when deciding to prevent Ms B visiting her sister in September 2019.
19. I have seen no evidence to support Ms B’s claim the care provider decided to prevent her visiting her sister in September 2019 partly due to concerns about what happened in 2017 and 2018. Rather, the evidence I have seen satisfies me the care provider decided to suspend Ms B’s visits to her sister while it investigated concerns about comments Ms B allegedly made to other residents and members of staff about the care provision in the home and due to a concern Ms B was seeking to initiate a conversation with service users with a view to inviting negative comments about the home. The care provider also referred to issues about a potential data protection breach. I therefore could not say the care provider had suspended Ms B’s contact with her sister in September 2019 partly due to historical issues which were resolved.
20. However, I have some concerns with how the care provider acted in this case. It is clear the care provider does not have a specific policy to follow when deciding whether to prevent a family member visiting a resident. The care provider says this is a matter for a senior manager after consulting with the home’s manager. I am concerned the care provider does not have a formal process to follow. I consider it important for the care provider to have a written process given, as I said in paragraph 10, the decision to prevent a resident seeing a family member can result in a breach of CQC regulations. I would expect any procedure to set out the circumstances in which restrictions will be considered and the process to follow, including who should be consulted, before a formal decision is made. I would also expect the care provider to consult the Council’s safeguarding team before introducing any restrictions and to consider holding a best interests meeting, in accordance with CQC guidance which I refer to in paragraphs 11 and 12. Failure to have a procedure in place and failure to follow CQC guidance is fault.
21. I consider failing to have such a process meant the care provider took inadequate steps before introducing the restrictions and during the investigation period. As the care provider was intending to restrict Ms B’s access to a family member and Ms B’s sister did not have capacity to decide whether that was appropriate I consider the failure to consult the council’s safeguarding team fault. I could not say if the care provider had consulted the council’s safeguarding team it would have reached a different decision about restricting Ms B’s access to her sister, particularly given those with power of attorney supported the restrictions. However, I consider Ms B is left not knowing whether the outcome would have been different had the care provider consulted the council’s safeguarding team and followed a proper process.
22. I am also concerned the care provider introduced the suspension and left it in place for more than five months without having an opportunity to consider Ms B’s response to the allegations made. In reaching that view I recognise the care provider gave Ms B an opportunity to attend a meeting in November 2019 to discuss the concerns. However, the care provider did not suggest that until one month after the restrictions were put into place. The meeting offered was almost two months after the care provider had introduced the suspension. The care provider’s communications with Ms B in October 2019 also referred to the investigation having been completed and the meeting being an opportunity for the care provider to share its findings with Ms B. It is not surprising in those circumstances Ms B felt unable to attend a meeting to understand the outcome of the investigation without ever having had the allegations put to her or the opportunity to present her own account. Again, I consider if the care provider had a proper process in place detailing the steps to take during an investigation, including the point at which it should interview the person alleged to have taken the action complained of, this could have been avoided. Failure to give Ms B an early opportunity to understand the allegations made against her and an opportunity to answer those allegations is fault.
23. I have also seen no evidence to suggest the care provider wrote to Ms B to detail the outcome of its investigation. In fact, the record keeping in this case is poor as I have also seen no documentation detailing the decision making process, what information the care provider considered or any indication of who made the decision. I understand the care provider had invited Ms B to a meeting, although the care provider now says the meeting was to give Ms B an opportunity to respond to the allegations. If, as the care provider’s communications with Ms B said though, it had reached a conclusion on the allegations it should have written to Ms B to explain the outcome. That letter should also have explained what decision the care provider had reached about ongoing restrictions on contact, if any, and when those restrictions would be reviewed. I have seen no documentary evidence to show the care provider carried out a proper investigation of the allegations made, that it reached a conclusion on the allegations and properly recorded the decision or that it made any determination about the continuation of restrictions. All that is fault and could have been avoided if the care provider had followed a written policy. As part of the remedy for this complaint I recommended the care provider draw up a written policy detailing how it will deal with allegations made against family members visiting residents, including the checks and balances that should be in place when introducing restrictions on contact. That could be as part of the home’s safeguarding policy or as a separate process. That procedure should include a description of how the investigation will be carried out, the point at which the person alleged to have taken an action will be interviewed, that contact will be made with the council’s safeguarding team for advice and detailing how any restrictions will be introduced and reviewed. The care provider has agreed to my recommendations.
24. Ms B says the care provider prevented her visiting her sister in the lead up to her death in March 2020. Ms B says this is despite the fact mediation decided she could visit her sister. The care provider has not provided any documentary evidence detailing Ms B’s attempts to visit her sister at the end of February 2020, other than a visit Ms B made on the day of the mediation meeting and a visit that was facilitated on 25 February. Besides those visits though Ms B says she tried to visit her sister on 29 February and the care provider turned her away. That is particularly important because Ms B sister died the following day. The evidence I have seen satisfies me the care provider reinstated Ms B’s visits to her sister following mediation on 20 February 2020, provided some conditions were met. There was therefore no reason to prevent Ms B visiting her sister on 29 February. Given the poor record-keeping by the care provided in this case I consider it likely, on the balance of probability, Ms B’s description of events on 29 February is accurate. Given contact with her sister had been reinstated following mediation preventing Ms B visiting her sister 29 February is fault. That caused Ms B significant distress because she could not see her sister before she died.
25. Ms B says the care provider failed to tell her about her sister’s death in March 2020. I understand Ms B’s concern, particularly as she visited her sister regularly before the care provider introduced restrictions. However, two other family members held power of attorney for Ms B’s sister. Both of those with power of attorney had asked the care provider to tell them directly on the death of Ms B’s sister and had made clear they would pass that information onto other family members, including Ms B. As I am satisfied the care provider followed the wishes of family members with power of attorney I have no grounds to criticise it.
26. So, I have found fault in how the care provider investigated the concerns raised about Ms B’s actions, its record keeping, in how it decided to suspend Ms B’s contact with her sister and in preventing her visiting her sister on 29 February. As I said earlier, I recommended the care provider adopt a policy/process to follow in these types of the circumstances. I could not speculate though about whether the care provider would still have introduced a suspension on Ms B’s contact with her sister while it investigated. I consider it possible though the period of the suspension would have been less if the care provider had in place a proper procedure which it could have shared with Ms B to show that it was acting diligently and not unfairly. It is also possible having a proper process in place would have enabled Ms B to feel able to give her account to the care provider at an earlier stage which may have facilitated earlier contact between her and her sister. As remedy I recommended the care provider apologise to Ms B and pay her £750 to reflect the time and trouble she has had to go to in pursuing her complaint, her distress and uncertainty. That is in addition to the introduction of the procedure I refer to earlier. The care provider has agreed to my recommendations.

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Agreed action

27. Within one month of my decision the care provider should:
• apologise to Ms B; and
• pay Ms B £750.
28. Within two months of my decision the care provider should introduce a procedure detailing a process it will follow when considering restricting a person’s access to a resident in its care home. That procedure should include the need to consult the council’s safeguarding team and follow the Mental Capacity Act, where relevant and should detail how any restrictions will be introduced and reviewed.

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Final decision

29. I have completed my investigation and uphold the complaint.

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Parts of the complaint that I did not investigate

30. I have not investigated Ms B’s concerns about what happened in 2017 and 2018. That is because those events occurred more than 12 months before Ms B complained to the Ombudsman. As Ms B was aware of what happened at the time I see no reason she could not have complained to the Ombudsman within 12 months. I am therefore not exercising the Ombudsman’s discretion to investigate this part of the complaint.

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Investigator's decision on behalf of the Ombudsman