Summary: Miss X complained the care provider wrongly placed restrictions on her visits to her grandmother at the care home. The care provider was at fault for suspending Miss X’s visits without putting in place a least restrictive option first and not telling Miss X the timescale for the suspension review. This caused Miss X distress because she did not know when she could visit Ms Y again in the care home. The care provider will review Miss X’s current visiting conditions and update its policy to include least restrictive options first and a timescale for reviewing suspensions.

The complaint

1. Miss X complained she was prevented from visiting her grandmother, Ms Y, between mid-October 2022 and late February 2023 when Ms Y resided in a care home. Miss X said the care provider told her she had shown aggressive and challenging behaviour in the care home towards staff and residents but Miss X disagreed. Miss X said not being able to visit her grandmother caused distress and she would like to visit her grandmother unrestricted.

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The Ombudsman’s role and powers

2. 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)
3. If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))
4. 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.
5. If we are satisfied with an organisation’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

6. I have considered:
• the information Miss X provided and discussed the complaint with her on the telephone;
• the care provider’s comments about the complaint and the supporting documents including records from the care provider in response to my enquiries and discussed the complaint with the care provider on the telephone; and
• relevant law and guidance and our guidance on remedies.
7. Miss X and the care provider had an opportunity to comment on the draft decision. I considered comments received before making a final decision.

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What I found

Relevant law and guidance

Mental Capacity Act 2005

8. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
10. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

Best interest decision making

11. A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.

CQC guidance on Visiting Rights in Care Homes

12. In 2016 (updated in 2019) the Care Quality Commission (CQC) published guidance ‘Information on Visiting Rights in Care Homes’. This sets out that care homes have a duty to protect people using their services. It states ‘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.’

The care home prevention of violence at work policy

13. The care home management and prevention of violence at work policy and procedure says how to manage and prevent violence at work. The care home policy said ‘it has both a moral and legal responsibility to prevent or reduce the risk of violence at work’.

The care home visitors’ policy

14. The care home visitors’ policy and procedure details the process to follow for visitors visiting the care home. Paragraph 4.6 of the policy states “if there is a conflict between visitors, the service, Service Users or staff members, then the care home would seek to resolve these issues amicably and to the satisfaction of the person raising the concern. However, the primary focus is the welfare of the Service User”.
15. Later on the policy states “if issues cannot be resolved, as an extreme measure, the registered manager may consider placing some conditions that restrict the visitors ability to enter the premises if, for example, they believe (having sought advice from others, like the Safeguarding Team) that the visitor poses a threat to other Service Users and staff, or to the running of the service, for example the registered manager could limit visits to take place in the Service User’s room only. Any conditions would be proportionate to the risks of other people or staff and kept under review” (paragraphs 5.12-5.14).

What happened

16. Miss X is Ms Y’s granddaughter. Ms Y moved into Care Home 1 several years ago and has short term memory loss and dementia. Miss X was Ms Y’s essential care giver and visited Ms Y most days. Another relation, Ms Z, is Ms Y’s next of kin.
17. In mid-December 2021 Miss X telephoned the care provider. Miss X raised concerns about Ms Y’s medication, personal hygiene, bruises, the actions of the registered manager and COVID-19 procedures when visiting Care Home 1. The care provider investigated each concern raised and the care provider contacted Ms Y’s next of kin, Ms Z, about the issues raised by Miss X. Ms Z told the care provider she did not share Miss X’s concerns.
18. Six days after Miss X raised her concerns the care provider held a virtual meeting with Miss X and invited Ms Z but she could not attend. Ms Z asked no action was taken by Miss X until her return from holiday in early 2022. The care provider confirmed all Miss X’s concerns had been addressed and it had full confidence in the registered manager.
19. In early February 2022 Miss X emailed the care provider and raised concerns about her mother not being next of kin and queried the need to take a COVID-19 lateral flow test and to wear personal protective equipment (PPE). Around this time a staff member raised concerns with the care provider about an incident when Miss X refused to wear PPE and about comments Miss X made about the care home manager.
20. Three days later the care provider held a meeting to discuss Miss X’s concerns from December 2021 and February 2022. This meeting was attended by the care provider, Care Home 1 manager, Miss X and Ms Z. Ms Z and Miss X were asked for their view on the concerns. The care provider said it was concerned staff were on edge when Miss X visited and that she was constantly looking for problems rather than trying to work with staff. The care provider asked the family to work with it and Care Home 1 to avoid a placement break down for Ms Y. Miss X was also asked to adhere to government COVID-19 testing and PPE requirements. The care provider explained if they could not work together it would accept termination of Ms Y’s contract and 4 weeks notice would be given. It was agreed Ms Y should stay at Care Home 1.
21. In both mid and late March 2022 Miss X raised concerns about Ms Y’s menu choices and a broken toilet. In mid-April 2022 Miss X was unwell and could not attend a meeting about her concerns. The meeting was rescheduled and took place between the care provider and Miss X in mid-May 2022. Miss X raised several concerns including Ms Y’s menu choices, Ms Y’s personal hygiene, Ms Y’s medication, call bell concerns, cleanliness of Ms Y’s room, PPE expectations and staffing levels. At the meeting Miss X told the care provider she recorded Ms Y at Care Home 1 while she asked her questions.
22. The care provider held a second meeting with Miss X to relay the outcome of its investigation of her concerns. The care provider told her she should ‘refrain’ from recording at Care Home 1. It said for insurance and risk management purposes it needed to know how many people were in the building and asked her to tell Care Home 1 before she visited Ms Y. The care provider investigated all Miss X’s complaints but Miss X was not happy with the result. The care provider told Miss X to raise concerns with Care Home 1 as she found them. Due to the number of complaints Miss X raised, the care provider requested Ms Y was allocated a social worker, contacted the safeguarding team and contacted the Care Quality Commission (CQC).
23. In late May 2022 the care provider sent Miss X a summary of the mid-May 2022 meeting. It explained residents had requested she not be present in the lounge/dining room when other residents were eating. The care provider said Miss X failed to ring Care Home 1 before she visited, as previously agreed and it reminded her to do so.
24. Between mid-May and early June 2022 staff raised concerns about Miss X’s behaviour in the communal lounge/dining room at Care Home 1, including slamming the fire door which caused residents’ distress. Miss X was told her behaviour ‘would not be tolerated’ and she could not go into the Care Home 1 lounge/dining room at meal times.
25. In mid-July 2022 Miss X raised concerns to the Care Home 1 manager about Ms Y’s food. Care Home 1 investigated Miss X’s complaint and remedied the issue.
26. In late September 2022 Care Home 1 contacted Ms Y’s social worker and requested a care needs assessment because of concerns Ms Y’s placement at Care Home 1 was breaking down.
27. In mid-October 2022 a multi-disciplinary, best interest meeting took place. The meeting was scheduled and chaired by Ms Y’s social worker attended by the Care Home 1 manager, Ms Z, Ms Y’s social worker and the care provider. Ms Y’s social worker did not invite Miss X to this meeting. The attendees discussed Miss X’s complaints and her visits with Ms Y. Ms Y’s social worker suggested the care provider approached the CQC to ‘seek their opinion about stopping Miss X’s visits to Care Home 1’. The social worker also told Ms Z to suggest to Miss X that she visited Ms Y outside Care Home 1 at a relative’s house. The meeting attendees agreed:
• to notify the CQC of the impact of Miss X’s behaviour;
• to suspend Miss X’s visits to Care Home 1 whilst it investigated;
• complete a best interest mental capacity assessment around Miss X’s suspended visits; and
• staff to log all Ms Y’s changes in behaviour.
28. In late October 2022 the Care Home 1 manager did a mental capacity assessment (MCA) with Ms Y. Ms Y was asked questions about Miss X’s visits. Ms Y knew she visited but did not know her name or how often she visited. The MCA concluded Ms Y did not have capacity.
29. The same day the care provider sent Miss X a letter. The letter gave the outcome of the best interest meeting to review Ms Y’s placement and care given ongoing concerns regarding her behaviour when attending the home. It said:
• all attendees of the best interest meeting agreed it was in Ms Y’s best interests to remain at Care Home 1;
• Miss X’s visits to Care Home 1 would be suspended in Ms Y’s best interest and to ensure staff were protected from any possible future actions by Miss X;
• the suspension would come into force on the date of the letter;
• Miss X was no longer allowed in Care Home 1 but it did not preclude home visits;
• Ms Y’s family would continue to be updated about Ms Y’s well-being; and
• the CQC had been informed of the action.
30. The same day the care provider notified the CQC.
31. In Mid-November 2022 Miss X wrote to the care home about the suspension. She said she was really shocked and requested a face to face meeting to talk through the issues and reach a satisfactory resolution. The care provider wrote to Miss X and said ‘There had been repeated episodes where you have displayed aggressive and challenging conduct to our staff and taking into account these issues, we consider that it is not in the best interests of the Home, its staff or your grandmother to allow you to continue to attend the Home. The decision was taken with the advice of the authorities and CQC’. It said ‘it did not feel a meeting would be appropriate at this time as these matters have been previously discussed with you and your family, however you continued to present challenging behaviours within the home’.
32. A day later a health professional completed a MCA with Ms Y. It decided Ms Y lacked capacity to decide if she should live at Care Home 1.
33. In late January 2023 the CQC contacted Care Home 1 advising it Miss X had made a complaint about the suspension of her visits to see Ms Y at Care Home 1.
34. In early February 2023 the CQC advised Care Home 1 to contact Ms Y’s social worker for an assessment. Ms Y’s social worker contacted Care Home 1 and advised Ms Y’s family, the care provider and Care Home 1 to contact the CQC about their views on Miss X’s suspension.
35. In late February 2023 the CQC told Ms Y’s social worker that Miss X should have been invited to the best interest meeting and the least restrictive option should have been considered. The social worker said because of Miss X’s coercive behaviour and on CQC advice, Miss X should have prearranged visits to see Ms Y in Care home 1, once a week with a relative. The social worker also said the least restrictive option of Miss X visiting Ms Y away from Care Home 1 was discussed with Miss X but the offer was not accepted.
36. The same day the care provider wrote to Miss X and said it had recently reviewed her suspension. It said it had taken the decision to lift the suspension with the following specific conditions:
• Miss X could make a prearranged visit once a week with Miss X’s mother or Ms Z;
• it must take place outside mealtime hours and in Ms Y’s room or the conservatory;
• it must last for a maximum of 90 minutes; and
• video’s, photographs and voice recordings were not allowed at Care Home 1.
37. Miss X remained unhappy and complained to us.

Enquiries

38. As part of my enquiries I spoke to the care provider and Care Home 1 manager on the telephone. They said:
• after the best interest meeting in October 2022 the care provider and Care Home 1 manager spoke to the CQC on the telephone to ask its advice on Miss X’s suspension. They also said they investigated by looking at evidence, spoke to the social worker and got a second opinion from a consultant. However it has not provided me with any evidence in support of the CQC telephone call, notes from the social worker about the discussion or evidence of the consultant advice;
• between December 2021 and September 2022 they spoke to Miss X about her concerns and had been ‘lenient’ but Miss X did ‘not work with them’. It did not look at a least restrictive option before suspending her in October 2022;
• internally the care provider decided Miss X should be suspended from Care Home 1 for a six month period from late October 2022. The suspension was reviewed monthly by the Care Home 1 manager through Ms Y’s care plan, but Miss X was not made aware of the suspension timescale;
• Miss X’s current Care Home 1 visiting conditions would be reviewed on a six monthly basis but Miss X had not been made aware of the review timescale; and
• Miss X could see Ms Y away from Care Home 1 but she did not use that option.

My findings

39. Between December 2021 and September 2022 Miss X complained multiple times to the care provider about Ms Y and had many concerns. In February 2022 the care provider told Miss X if they could not work together the family could terminate Ms Y’s contract giving 4 weeks notice. Ms Y’s family said they did not share Miss X’s concerns and wanted Ms Y to remain at Care Home 1. The care provider investigated all Miss X’s concerns and met with Miss X four times to discuss them and remedied these where needed. Ms Y had a social worker due to the number of Miss X’s complaints and the care provider contacted the safeguarding team and the CQC. Care Home 1 staff raised concerns about Miss X’s behaviour but it did not say it would suspend her from visiting Ms Y. The care provider was not at fault at this point.
40. In October 2022 a best interest meeting decided Ms Y should remain at Care Home 1. It decided Miss X’s visits ‘should be suspended whilst it investigated’ but it did not preclude Miss X from visiting Ms Y outside the care home.
41. The care provider said it investigated, spoke on the telephone to the CQC for advice, spoke to Ms Y’s social worker and spoke to a consultant on the telephone for a second opinion but it did not provide me with evidence in support of these discussions and its investigation. Although the care provider raised concerns about Miss X’s behaviour, Miss X was not given any prior warning of the suspension nor did it consider whether there was a least restrictive option. CQC guidance is clear that a ban should only be used as a last resort and any restriction should be proportionate to the risk the visitor poses to residents and staff. The care provider’s failure to consider proportionate measures in line with CQC guidance and its own visitors policy is fault.
42. The care provider internally decided a suspension review of 6 months was appropriate but it did not tell Miss X this. This was fault and not in line with CQC guidance.
43. Miss X asked to meet to discuss the issues in mid-November 2022 but the care provider refused. She was not given the opportunity to put her case across or challenge the decision. The care home says it was the social worker who set up the best interests meeting and who arranged the invitations. However, Miss X was not given the opportunity to provide her views before or after the meeting. This was fault.
44. Miss X complained to the CQC about her suspension and in February 2023 the CQC and Ms Y’s social worker advised the care provider to end Miss X’s suspension with conditions, which it did. This was appropriate. It is for the care provider to decide whether to continue to impose restrictions in line with its policy. This in itself is not fault. However, the care provider set a six month time scale for reviewing this, but did not tell Miss X. This is fault. We would expect the care provider to review this further to consider whether the restrictions should continue or be amended.
45. There is no evidence Miss X’s suspension caused a significant injustice to Ms Y as she was not always aware of Miss X’s visits due to her dementia and short term memory loss. However, the suspension and restrictions have caused distress to Miss X.

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Agreed action

46. Within one month of the final decision the care provider will review Miss X’s current visiting restrictions at Care Home 1 and write to Miss X to explain whether the restrictions will continue or be amended including timescales.
47. Within three months of this decision the care provider will amend its visitor policy and procedure to include suspension review timescales and to consider least restrictive options first, in line with the CQC guidance.

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Final decision

48. I have completed my investigation finding fault causing injustice. The care provider has agreed to take action to prevent reoccurrence of the fault.

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Investigator's decision on behalf of the Ombudsman