The Ombudsman's final decision
Summary: Mr X complained about the care his late mother, Mrs Z, received during the last few weeks of her life at Ebury Court Residential Home during the COVID-19 pandemic. There was no fault in the updates the Care Home provided the family, its care of Mrs Z, or how it interacted with health professionals. It is not possible to come to robust findings on Mr X’s other complaints about the manner of communications between the Care Home and the family.
The complaint
Mr X complains about the care his late mother, Mrs Z, received during the last few weeks of her life at Ebury Court Residential Home. Specifically, he complains the Care Home: failed to inform the family when a resident tested positive in the Care Home; allowed the residents to receive their first COVID-19 vaccinations despite there being a COVID-19 positive resident; failed to provide accurate daily updates from 5 January 2021 until Mrs Z’s death; failed to care properly for Mrs Z, which became evident on 10 January 2021 during a video call with her; failed to prepare them for the call on 10 January in light of the deterioration in Mrs Z’s health and appearance; failed to contact health professionals, such as the GP, when Mrs Z became end of life; behaved in a rude and unprofessional manner during a phone call with the family on 10 January; on 11 January, failed to allow the family a video call with Mrs Z and refused to provide an update on Mrs Z’s condition until the family promised to stop calling the Care Home for updates; and made insensitive comments in emails after Mrs Z’s death.
The Ombudsman’s role and powers
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) If an adult social care provider’s actions have caused an injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4)) We investigate complaints about adult social care providers. We provide a free service but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely further investigation will lead to a different outcome. (Local Government Act 1974, sections 34B(8) and (9)) 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) This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.
How I considered this complaint
I spoke to Mr X and his sister, Ms S, and considered their comments.
I made enquiries of the Care Home and considered the information it provided.
I wrote to Mr X and the Care Home with my draft decision and considered their comments before I made my final decision.
What I found
What happened Mr X’s mother, Mrs Z was in her 90s and had been a resident at Ebury Court Care Home for around three years.
On 22 December 2020, Mr X received an email from the Care Home managing director advising families that residents would receive the first dose of the COVID-19 vaccine at the end of December.
On 23 and 25 December, Mr X had a window visit with Mrs Z. This where the visitor remained outside but could see and/or talk to their relative through the window.
Around Christmas time a resident returned from hospital and tested positive after taking a lateral flow test. In line with the Care Home’s procedures, they went into isolation.
Mrs Z tested negative for COVID-19 on 24 and 27 December.
The local GP visited the Care Home and the vaccinations went ahead on 30 December. On 1 January 2021, Mrs Z tested negative for COVID-19.
On 3 January four staff and four residents tested positive for COVID-19. These numbers soon increased to 18 residents and 16 staff.
Whilst the Care Home was in lockdown, it was agreed that a staff member would call a named contact in each resident’s family to provide a daily update. Mr X was the named contact for Mrs Z. Families were asked not to call the Care Home for updates because of staff shortages caused by illness and the extra work this meant for those staff still working and caring for the residents with COVID-19.
On 6 January, the Care Home manager called Mr X to inform him that Mrs Z had tested positive for COVID-19 but she was asymptomatic (had no symptoms).
On 7 January, Mr X called the Care Home and said he was told that Mrs Z was still asymptomatic.
The manager called Mr X on 8 January. Mr X said she told him Mrs Z remained asymptomatic. Up to this point, Mrs Z’s care records showed she was eating and drinking with no concerns.
The care records for 9 January, recorded Mrs Z declined her breakfast and lunch and spent most of the day in bed. It was recorded that her fluid intake was good.
Mr X’s sister, Ms S, called the Care Home on 9 January and spoke to one of Mrs Z’s carers. Ms S stated the carer told her Mrs Z was “a little better than yesterday”. Ms S said this shocked her because she had been told Mrs Z was asymptomatic the previous day.
The managing director called Mr X that evening. Mr X said he told him Mrs Z had declined breakfast and lunch but remained asymptomatic. The care notes record her condition had improved a little and she continued to drink well and was also having fortified drinks.
The video call took place on 10 January. A staff member advised Mr X and Ms S that Mrs Z’s appearance might be distressing to them but they decided to go ahead with the call.
Mr X said he and Ms S were shocked by Mrs Z’s appearance stating she looked “feral… far from being just tired, her face was sunken, grey and she looked very dehydrated. She was in fact at death’s door”. Mr X was upset the Care Home had not prepared him and Ms S for the shock of seeing her in that condition.
Ms S had a telephone call with the managing director that evening. She told Mr X that the managing director was aggressive towards her and said they might not be able to have a facetime call with Mrs Z because they were so busy. Ms S said he then spoke about issues concerning himself which she found unprofessional.
Ms S said that because the managing director had been unable to give the family an update, she called the Care Home. She said she spoke to a care worker who said Mrs Z was unwell and tired and had not eaten or drunk anything all day.
On 11 January, the Care Home had a video consultation with the GP about Mrs Z’s condition. The records note her temperature was normal and her oxygen levels were at 92%. She continued not to eat but was drinking. The GP prescribed antibiotics.
On 11 January Ms S called the managing director but did not get through. He texted Ms S shortly afterwards to say a care worker would contact the family once they had completed Mrs Z’s observations.
The managing director called Ms S around an hour later. Ms S said he told her that he would not provide an update on Mrs Z until she gave an assurance she and Mr X would stop calling the night staff for updates. Ms S said she found this shocking and felt humiliated to have to promise this when Mrs Z was dying. She also said she had only called the Care Home once at night, which was the previous day.
Ms S said she was concerned that the managing director did not provide a detailed update for Mrs Z so she called the Care Home to speak to one of the care workers. She said the care worker told her Mrs Z was showing signs of COVID-19 and was not eating or drinking although her breathing was fine and she did not have a temperature. Ms S said she requested regular facetime calls and she wanted to see Mrs Z that day, but the care worker was rude to her and refused. Ms S said the care worker then hung up on her.
Ms S informed Mr X of the conversation and he phoned the manager. He said the manager told him she would not allow a facetime call but would put the phone next to Mrs Z’s ear so she could hear Mr X’s voice. Mr X said the manager asked if that would help which Mr X said he found to be unfeeling.
The manager phoned later that day to say Mrs Z had been prescribed antibiotics by the GP.
On 12 January, the care worker called Mr X to say Mrs Z was very weak and her oxygen levels were falling.
The records show the Care Home contacted the GP following this call, who prescribed end of life medication which was collected the same afternoon. At 6pm the Care Home administered oral morphine to Mrs Z.
The manager asked Mr X if he would like to visit in person. Mr X declined because he had underlying health conditions and he felt it would not be safe. Ms S could not visit in person because she lived abroad. However, the family had a facetime call with Mrs Z that afternoon. The Care Home called shortly after the call ended to say they were waiting for medication to help Mrs Z’s breathing. A care worker called that evening so the family could talk to Mrs Z. Mrs Z died the morning of the following day.
Following her death, Mr X and Ms S emailed the Care Home and asked for copies of Mrs Z’s care records. The manager asked the reason for wanting the records to be able to assist them further.
Mr X stated the care records would help them with the grieving process.
The manager sent Mr X and Ms S copies of Mrs Z’s daily care records for the three week period before she died. The manager wrote that she hoped this would assist them with the grieving process.
Around a week later, Mr X asked the manager for a list of the medications Mrs Z was taking and details of what drugs were administered in the last 48 hours before her death.
The manager asked why Mr X wanted this information. She said she could not understand how it would help with the grieving process.
Mr X emailed to explain that the family wanted to know if Mrs Z had received any pain medication before her death.
After receiving no response from the manager, Mr X chased for the information. The manager replied the same day to state that she was happy to provide the information but there would be a charge of £50 to cover administrative costs. Mr X paid this and received the information he requested.
Mr X and Ms S complained to the Care Home about the issues in paragraph 1. The Care Home made the following points in its response: one COVID-19 positive resident who had been in isolation since returning from hospital was not an outbreak and management took the decision not to worry families at that stage; in their daily updates to Mr X, they discussed the decline in Mrs Z’s health; the daily updates were designed to reassure the family that Mrs Z was not suffering and not that she was entirely unaffected by COVID-19. The Care Home apologised for any misunderstanding; the manager and managing director had different impressions of the phone calls and did not feel they had been unprofessional or uncaring; the family did not request a facetime call until 7 January. Because of staff shortages due to illness, priority had to be given to caring for residents and not facetime calls which required a staff member to be present; the appearance of someone at end of life could be shocking to people unused to it but Mrs Z was well cared for and kept comfortable. In addition, Mrs Z’s care worker had prewarned the family that they might find the call distressing; in line with its policy, when Mrs Z became end of life all family members were invited to visit in person but this was declined; in the Care Home’s replies to Mr X’s emails for information after Mrs Z had died, reference was made to assisting the family with the grieving process because this was the term used by Mr X.
Mr X and Ms S remained unhappy and complained to the Ombudsman.
My findings
Complaint 1a) failed to inform the family that one resident had tested positive Mr X was unhappy families were not informed immediately when a resident contracted COVID-19. The Care Home said it made the decision not to inform families at that stage because there was only one case and that resident had been in isolation the whole time.
There was no policy or statutory guidance stating a Care Home had to inform the families of the other residents if one person contracted COVID-19. Therefore, the decision was for the manager to make. In this case, the manager and managing director weighed up informing the families of the single case against the potential worry it would cause and decided not to inform them at that stage. There was no fault in the way they made this decision.
Complaint 1b) first COVID-19 vaccinations given despite there being a positive resident The decision whether it was safe and appropriate to administer the vaccinations was made by a GP and not the Care Home. Therefore, this is not a matter for this investigation. However, even if did investigate it is unlikely I would find fault. This is because medical advice was that the vaccine was safe to administer if the person either did not have COVID-19 or did not have symptoms and there was no evidence to suggest Mrs Z did not fall into either of these categories.
Complaints 1c) Mrs Z’s daily updates, 1e) facetime call on 10 January, 1g) telephone conversation on 10 January and 1h) events of 11 January The events which form this complaint took place during a COVID-19 outbreak in the Care Home and in the three weeks before Mrs Z died. It was a distressing time for the family. The Care Home was in lockdown and the family felt they could not make in person visits. This meant they could only communicate by facetime when Mrs Z became end of life. The Care Home was also experiencing a significantly difficult period, with many staff absent with COVID-19 and a large number of residents testing positive, putting additional burdens on those staff still able to work.
When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. Sometimes it is not possible for us to come to a decision even on the balance of probabilities. This may be the case when there are conflicting views on what was said, or the way something was said, in a conversation.
This is the case with these complaints. Each involves a conversation which took place between Mr X or Ms S and the Care Home. Mr X has sent me a recording of one call between Ms X and the managing director which I listened to. I did not find the managing director’s approach unprofessional or adversarial. However, because I have not listened to other calls I cannot comment on them. Therefore, I will not investigate this matter further.
Complaints 1d) Mrs Z’s care and 1f) interaction with health professionals when Mrs Z became end of life Mrs Z’s care notes for the three weeks prior to her death record that up to 8 January, she ate, drank and slept with no concerns and was generally well.
From 9 January, Mrs Z refused solid food although she drank well and had fortified drinks. When she remained unwilling to eat, the Care Home contacted the GP who prescribed antibiotics.
The family was distressed by Mrs Z’s appearance on the 10 January. The Care Home staff stated that people who are unused to working with elderly and frail residents who are approaching end of life are often shocked by their relation’s appearance. We now know Mrs Z was at that stage when the video call took place and she died two days later. There is nothing to indicate from the records that her appearance was due to poor care as opposed to her elderly and frail state.
Mrs Z’s health deteriorated quickly and at that stage the Care Home contacted the GP again. The GP prescribed end of life medication which was delivered the same afternoon. The medication administration charts show the Care Home promptly administered morphine. There was no fault in the Care Home’s actions.
Complaint 1i) content of emails after Mrs Z’s death As part of my investigation, I read the email exchange between Mr X and the Care Home following Mrs Z’s death. I have seen no evidence of them being insensitive, but I acknowledge Mr X found them to be so. Because of the subjective nature of this issue, even on the balance of probabilities, I cannot come to a robust finding which is fair to both parties.
Final decision
I have completed my investigation. Where I have come to a finding, there was no fault in the Care Provider’s actions.
Investigator's decision on behalf of the Ombudsman