Summary: Mr D complains on behalf of his late mother that there was a delay in providing pain medication at the end of her life, causing significant distress and pain. We have found fault causing injustice. The organisations have accepted our recommendations. We have therefore completed our investigation.

The complaint

1. Mr D complains on behalf of his late mother, Mrs J, that there was a delay in providing pain medication at the end of her life in April 2020, causing significant distress and pain.

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The Ombudsmen’s role and powers

2. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
3. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services. We use the word ‘fault’ to refer to these. If there has been fault, the Health Service Ombudsman considers whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1))
4. If the actions of a health and social care provider have caused injustice, the Ombudsmen may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. 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 organisations followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to Covid-19”.
7. The Ombudsmen will not generally investigate a complaint unless they are satisfied the matter has been brought to the relevant organisation’s attention and that organisation has had a reasonable opportunity to investigate and reply to the complaint. (Local Government Act 1974 section 26(5), as amended, and Health Service Commissioners Act 1993, section 9(5)) However, in the case of joint complaints (i.e. those deemed suitable for investigation by the Joint Working Team operated by both PHSO and LGSCO), if one organisation has investigated and replied to the complaint but another organisation has not, the Ombudsmen may decide to exercise their discretion to investigate the complaint against both (or all) organisations, so that the issues can be considered in the round.
8. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
9. Under our information sharing agreement we will share this decision with the Care Quality Commission (CQC).

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How I considered this complaint

10. I spoke to Mr D about his complaint and considered the information he sent and the response to my enquiries from the Care Provider, NHS Trust and GP Practice, including call recordings between the Care Home and GP Practice. I have also considered the relevant national guidance and legislation.
11. Mr D did not complain to the GP Practice, but we have exercised our discretion to investigate all three organisations.
12. Mr D and the organisations had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fundamental Standards of Care

13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user’s behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety. The provider must have arrangements to take appropriate action if there is a clinical or medical emergency.

End of life medication

14. Anticipatory medicines in the form of “just in case” boxes might be prescribed when a person prefers to spend their final days in a care home and it has been agreed that they should do so. In Mrs J’s case, the GP was responsible for the prescribing of any anticipatory medicines. The Care Provider was responsible for their safe storage.
15. Prescriptions are sent through the NHS electronic prescription service, which uses the NHS Spine to securely share the information with the nominated pharmacy.
16. To prevent the spread of coronavirus (COVID-19), since March 2020 most GP appointments, including “ward rounds” of care homes, have been by telephone.
17. Morphine sulphate and midazolam are controlled drugs under the Misuse of Drugs Act 1971. They must be administered by a registered nurse. The Trust’s integrated community team provides community nurses to support care homes. The team is contacted through a telephone referral “hub”. The hub should be advised when the controlled drugs have been received by the care home. It then alerts the community nurse, who should visit within a few hours.

What happened

18. Mrs J was 90 years old with dementia. She was living in Foxholes Care Home (the Home), operated by the Care Provider. She had an order not to attempt resuscitation or to go into hospital if she was nearing the end of her life.
19. On 17 April 2020 Mrs J had a cough and was therefore isolating in line with COVID-19 restrictions. On 19 April 2020, the Home’s daily records say Mrs J had been shivery and shaky and felt hot, her temperature was 37.7°. She had eaten very little and was struggling to swallow.
20. The next morning, 20 April 2020, Mrs J had deteriorated. The Home’s records say her breathing was laboured and she was glassy eyed. There is a record of a call to the GP at 09:10 by the Home, but the caller hung up after the recorded message. The Home called NHS 111 at 09:33. A doctor called back; they advised the Home to alert Mrs J’s GP as she may need anticipatory, end of life medication. The Home informed the family, who came to be with Mrs J.
21. The Home’s team leader called the GP practice at 10:06. She explained the situation and that Mrs J needed anticipatory, “just in case” medicines. The receptionist advised the GP was not available and the Home would have to call back at 14:00 to make an appointment. The Home’s deputy manager was concerned about this, so the team leader called the GP again. The receptionist advised a GP would call in the afternoon.
22. Mr D says during the day Mrs J was in significant and severe pain and distress. He says the family was pleading with the Home to get pain relief for Mrs J.
23. The Home emailed the GP practice at about 12:30 with details for the afternoon’s ward round. This included a note that said “Mrs J has deteriorated and 111 have suggested just in case meds for her as she is not down to go to hospital and she seems to be having spasms. This is quite URGENT”.
24. The Home called the GP practice again at 14:32. The receptionist said Mrs J was on the list for the ward round, it was noted her case was urgent and the GP would call back.
25. The GP rang the Home at 15:15. Mrs J’s case was discussed and the GP agreed to prescribe anticipatory medicines. The Home requested that the drug chart (yellow form) needed by the community nurse team for administration be emailed to the Home. The Home called the GP again at about 15:30 to ask the GP to send the prescription to Pharmacy X. The receptionist said the GP was busy with care home rounds and a message could not be passed to him. The Home emailed the GP at 15.31 with the pharmacy information.
26. The prescription was issued electronically at 15:57 to Pharmacy X via the NHS Spine and the drug chart was emailed to the Home at 16:01.
27. The Home called the community nurse hub (the Trust) at 16:58 to advise that anticipatory medicines were awaited. The records show that Pharmacy X received the final prescription from the NHS Spine at 17:22.
28. The records are then unclear. In response to Mr D, the Home says it drove to Pharmacy X to collect the medication just before it closed at 18:00, arriving back at the Home “soon after 18:00”. A record was made at 18:19 that the medication was awaited. The Trust’s records show a call to the hub at 18:17 “asking if the message had been passed on” and at 18:59 to advise the medication “would be there in about 10 minutes”. There is no record of the Home calling the hub to confirm the medicines had arrived in the building.
29. The Home says it chased the Trust at about 21:30 and was told no arrival time for the nurse could be given. This call is not in the Trust’s records.
30. The Home’s records say, at 22:46 “I have been in touch with [community nursing] to find out when they are coming ... they will find out as best they can and call back”. The Trust’s records say they called the Home at 22:50 and “spoke to staff in the home who said that patient is unsettled and would like the nurse to visit and administer [anticipatory] meds. ... No symptoms of covid-19, advised that the nurses will visit as soon as possible.” A referral was made to the overnight nursing service at 22:50 by the hub.
31. The community nurse arrived at 00:20 on 21 April and gave Mrs J morphine sulphate (strong pain relief) and Midazolam (used to treat distress and anxiety). This was given as an injection.
32. At 09:25 on 21 April the Home called the Trust again and the nurse visited at 10:04 to administer further pain relief by injection. This proved insufficient. The Home requested a syringe driver at 11:04 and this was started by the nurse at 11:50. The Home’s daily records say Mrs J was then settled from about midday. Mrs J sadly passed away at about 02:00 on 22 April 2020.

Mr D’s complaint

33. Mr D's sister wrote to the Home on 11 May 2020 asking for Mrs J's records. She said the substantial delay in Mrs J receiving palliative medication had been difficult for the family but, more importantly, distressing and uncomfortable for Mrs J in her final hours. There was some further correspondence and, on 19 May, Mr D asked the Home to provide a comprehensive reply to explain why the delay had occurred. The family also asked for records from the GP practice and the Trust.
34. The Home replied on 22 May with a chronology of events. This led to further correspondence as Mr D sought to understand the timeline and the details of what had happened. In its responses to Mr D the Home accepted it could have chased the GP more frequently between 10:06 and 15:15. It apologised it had not done so. Mr D said on 23 June 2020 that the family wished to make a formal complaint. There was further correspondence and the Home said it would await Mr D’s complaint.
35. Mr D complained to the Trust on 14 June 2020 and then complained to the Ombudsmen.
36. The Trust replied to Mr D’s complaint on 30 July 2020. It said that “unfortunately the referrals were not processed as expected practice thus the community nurses from the Integrated Community Team were not informed that a visit was required to Mrs J for administration of her medication in a timely way.” The Trust apologised that this had caused Mrs J unnecessary pain and distress at the end of her life. It offered support to the family.
37. The Trust explained that since March 2020 its hub had increased in capacity, with staff redeployed to manage the COVID-19 pandemic. Unfortunately, despite training and support, the Home’s messages were not processed. It had shared the learning from the complaint to reduce the risk of any further occurrences and additional training and support had been provided.

My findings

38. I have considered the actions of each organisation.

The Care Provider’s requests for end of life medication and a community nurse visit

39. The Home asked the GP to prescribe anticipatory, end of life medicines on 20 April 2020. Given Mrs J was poorly, I have considered whether it should have done so sooner.
40. Mrs J was an older person with dementia, she had a do not attempt to resuscitate order in place and a plan not to go to hospital. The Home’s daily records show Mrs J was poorly in the few days leading up to her death. She had a cough on 17 April and there is one record of a raised temperature. I have not seen any consideration of whether Mrs J may have had COVID-19 or whether a GP should have been contacted before 20 April. However, the Home’s daily records do not indicate that Mrs J was at the end of her life prior to 20 April 2020. I therefore find there was no fault by the Care Provider in not requesting the anticipatory medicines before 20 April 2020.
41. Mr D is concerned that the Home had not done as much as it could to get the pain relief Mrs J needed. He says the family was pleading with carers and had offered to drive to the GP practice and Pharmacy X to collect the prescription and medication. He says the Home “fobbed them off”, telling them they had chased the GP and nurses, but he considers the Home manager should have put more pressure on to expedite the prescription.
42. I have seen that the Home contacted NHS 111 at 09:33. It then called the GP practice three times and sent an email, before speaking to the GP at 15:15. I have listened to these calls. The Home refers to “just in case” medicines, and that Mrs J does not need to go to hospital. It sought assurances that the practice was aware of the urgency of Mrs J’s case.
43. The Home has apologised it did not call the GP more often on 20 April. However, I cannot say that if it had done so, the GP would have spoken to the Home sooner. This is because it is unclear whether a GP was available for an urgent appointment. Nor can I say whether, if the Home had called NHS 111 a second time, a doctor would have issued a prescription.
44. I find there was no fault by the Care Provider in the way it sought medical advice and requested the anticipatory medicines.
45. The Home was required to ask the community nurses to administer the controlled drugs and to advise them when the medication was in the Home. As I have set out above, the records are conflicting on this point.
46. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
47. I consider it unlikely the Home could have collected the medicines after Pharmacy X had closed at 18:00. It may be that the Trust’s record about the time of the call to advise the medicines were awaited is incorrect. Or it may be there was delay by the Home in contacting the hub. Regardless, the Home should have called the hub when the medicines were in the building. I have seen no evidence it did so. This was fault. However, I cannot say whether, had a further call been made to the hub at around 19:00, a nurse would have attended sooner. This is because there is a record of a call to the hub at 18:59, but the hub did not refer to the community nurse until 22:50.

GP Practice delay in issuing prescription

48. The NHS 111 doctor advised the Home to ask the GP for a prescription for anticipatory, end of life medicines. This required speaking to a GP so the prescription could be issued. When the Home called the GP practice on the morning of 20 April 2020, it was advised no GP was available and an appointment would be needed that afternoon. GP practices should be able to offer emergency appointments. I have seen no evidence that an urgent appointment was considered, available or offered.
49. In response to my enquiries, the Practice said the receptionist was a new member of staff who had understood it to be a general medication request and had not appreciated the importance of it being ‘just in case medication’. It also said the Home had not explained the request could not wait until 14:00.
50. It was fault by the GP practice not to appreciate the urgency or explain to the Home the process for obtaining an urgent appointment or prescription for “just in case” medicines. While the Home did not initially request an appointment before 14:00, it called back twice more and also emailed to advise the case was urgent. I consider it was for the Practice, rather than the Home, to be aware of the steps it could have taken to expedite the prescription.
51. I cannot say precisely when a GP would have been available. However, on the balance of probabilities, an emergency appointment or prescription should have been provided during the morning. I find there was an avoidable delay by the GP practice in issuing the prescription for anticipatory, end of life medicines, which is fault.
52. The electronic prescription was issued by the GP Practice at 15:57. It was completely received from the NHS Spine by Pharmacy X at by 17:22. I cannot say why it took this time, but this was not the responsibility of the Home or Practice. The Home told Mr D that, in their experience, prescriptions were taking longer to process during the COVID-19 crisis as most prescriptions were being sent electronically.

NHS Trust’s referral to community nurses

53. The Trust has accepted its usual referral process was not followed. Whilst it is unclear when the Trust was advised the medicines were imminent, and there is no evidence of a follow up call to confirm they had been received, the referral to the nurse was not made until 22:50. This was fault.
54. I note the Trust has already apologised to Mr D for this and has offered support to the family. It has also shared the learning from the complaint with hub staff.

Did the fault cause injustice?

55. There was fault by the Care Provider, GP Practice and Trust. I consider that these faults led to Mrs J suffering avoidable pain and distress in the last days of her life.
56. Due to the uncertainty about the availability of a GP or community nurse, I am unable to say precisely what time Mrs J would have received the pain relief had the faults not happened. However, it should have been during the morning. Instead, she had to wait until 00.20 the following morning. The injustice caused to Mrs J cannot now be remedied as she has passed away.
57. I also consider Mr D and the family suffered the avoidable distress of seeing their mother in significant pain at a traumatic time. The Ombudsmen do not award compensation in the way that a court might. We may recommend a symbolic payment to acknowledge distress caused. Our guidance on remedies recommends a payment for distress of £100 to £300.

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Recommendations

58. Within a month of my final decision, to acknowledge the distress caused:
1. The Care Provider has agreed to apologise to Mr D and the family and pay him £100.
2. The GP Practice has agreed to apologise to Mr D and the family and pay him £100.
3. The Trust has agreed to pay him £100.
59. Within three months of my final decision:
1. The Care Provider has agreed to remind all staff of the process for obtaining urgent, end of life medication, including alerting the hub when the medicines are in the building.
2. The GP Practice has agreed to ensure staff are aware of the need for an emergency appointment when anticipatory medicines are requested.

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Final decision

60. There was fault by the Care Provider, Practice and Trust. The actions the organisations have agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman