Summary: Mrs B and Mrs C complained about the way the Trust cared for their late father, Mr D, when he was in hospital in December 2021 and contracted COVID-19. They also complained about the way the Council and Trust dealt with Mr D’s discharge to a care home, and about Mr D’s care at the Home. We found fault in the way the Trust communicated with the Home and Mr D’s family. This caused Mrs B and Mrs C unnecessary distress. We have not found fault in the other issues complained about. The Trust has agreed to explain what actions it has taken to learn from these events.

The complaint

1. Mrs B and Mrs C complained about the care of their late father Mr D by Essex County Council (the Council), Cedars Place Care Home (the Home), and East Suffolk and North Essex NHS Foundation Trust (the Trust).
2. Mrs B and Mrs C complained about Mr D’s discharge from hospital to the Home in January 2021, under the designated settings discharge arrangements for people with COVID-19. They said:
• Mr D was not well enough to be discharged
• The residential home did not provide appropriate care and support for him
• Communication between the hospital and residential home and with the family about Mr D’s palliative status was poor
• Mr D did not receive medication to relieve distressing symptoms at the end of his life
• Mr D’s deterioration, re-admission to hospital and his death could potentially have been avoided
3. Mrs B and Mrs C say the circumstances of their father’s death left his family distraught and devastated. They want to better understand what happened to Mr D, and the organisations to fully acknowledge what went wrong and the impact this had on Mr D and his family.

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The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they 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.
6. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
7. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
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. This complaint involves events that took place 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 and guidance, and whether Councils followed our published “Good Administrative Practice during the response to COVID-19”

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How I considered this complaint

10. I have considered information Mrs B and Mrs C provided in writing and by phone. I have considered written information from the Council, Trust and the Home, as well as relevant law and guidance. I have also taken independent clinical advice from a consultant physician and geriatrician.
11. Mrs B, Mrs C and the organisations had the opportunity to comment on a draft of this decision. I took all comments into account before making a final decision.

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What I found

Background

12. Mr D, aged 76, went into hospital on 17 January 2021 due to confusion and abdominal pain. He also had several long-term conditions including Parkinson’s Disease, prostate cancer, and an abdominal aortic aneurysm (AAA). An AAA is a bulge or swelling in the aorta, the main blood vessel that runs down from the heart through the chest and stomach. An AAA can get bigger over time and can burst, causing life-threatening bleeding.
13. The hospital found Mr D’s AAA had increased in size since his last scan and looked like it might rupture imminently. The hospital also found possible cancerous changes in Mr D’s abdomen and chest. Medical staff spoke with Mrs D and said it would not be appropriate to try to repair the AAA if it ruptured, and that Mr D would not be appropriate for intensive care or high dependency treatment due to his underlying poor health.
14. The palliative team reviewed Mr D the next day and contacted Mrs D to say she should come to the hospital as Mr D was very unwell. [This was during the COVID-19 pandemic when visiting restrictions were in place in hospitals.] The palliative consultant also prescribed anticipatory medications (medications prescribed in advance in case the person develops distressing symptoms when approaching the end of their life).
15. Mr D’s condition improved and two days later on 20 January the palliative team said it no longer needed to be involved in his care.
16. On 21 January the elderly care physician in charge of Mr D’s care reviewed him and decided he was medically fit for discharge from hospital. The hospital sent a referral to the Council to arrange for Mr D to have care at home twice per day, to help Mrs D.
17. The next two days were a weekend. Doctors did not review Mr D but nurses carried out clinical observations which showed nothing of concern. However, on Saturday 23 January Mr D tested positive for COVID-19, and moved wards as a result. On Sunday 24 January the discharge hub told the hospital Mr D could be discharged the next day to Cedars Place. Cedars Place was a “designated setting” - a residential placement for people being discharged from hospital who had a positive COVID-19 result. Mrs D said she was very unhappy with the discharge plan as she thought her husband was to be discharged home with carers coming in.
18. The hospital called Mrs D and explained the discharge planning in more detail, including that a care agency was not able to start care at home straight away. The hospital noted Mrs D was happy for Mr D to go to the Home until his COVID-19 isolation period ended. Mr D’s family say Mrs D was not happy with this plan but no choice was offered and they were led to believe this was the only option.
19. As Mr D had moved wards in hospital a different elderly care consultant reviewed him on 25 January. He noted “Overall I think MSFD [medically safe for discharge] according to medical and nursing notes.”
20. Mr D was discharged to the Home that day. The hospital said it had phoned the Home to provide information about Mr D and his care needs. The hospital also noted it had spoken with the palliative team and that Mr D needed a district nursing referral.
21. The hospital’s discharge summary did not mention Mr D’s COVID-19 positive result from 23 January. The summary said the discharge plan was for “home on oral antibiotics”, and also “palliative input: to discharge patient on anticipatory medication as below in case of further deterioration”.
22. The first few days of Mr D’s stay at the Home were relatively stable but he deteriorated significantly and quickly on the evening of 29 January. The Home called an ambulance and Mr D went to hospital. The hospital noted Mr D had extreme difficulty breathing and was “actively dying”. He died later that evening. The primary cause of his death was COVID-19 pneumonia, in addition to the AAA, prostate cancer, diabetes and dementia.
23. Mrs B and Mrs C complained about Mr D’s care. They felt he was not fit to be discharged from hospital, and that communication between the hospital, the Home and the family was poor. They were also concerned about Mr D’s deterioration at the Home, his re‑admission to hospital and his death, which they felt could potentially have been avoided.

Discharge from hospital

24. Mrs B and Mrs C asked why Mr D was discharged from hospital so soon after being very ill, and why the discharge still went ahead after he contracted COVID‑19. They felt Mr D’s condition and his fitness for discharge were not adequately re‑assessed.
25. The Trust said the consultant who reviewed Mr D on the day he was discharged felt the discharge was safe and in his best interests. It said although Mr D deteriorated and died a few days afterwards, this did not mean his discharge was unsafe.
26. During our investigation the Trust told us the consultant made an informed decision based on information from Mr D’s medical notes, the palliative care team and nursing team. It also said Mr D was not unwell with any symptoms relating to COVID-19 at the time he was discharged.
27. I have carefully considered all the evidence, including Mrs B and Mrs C’s accounts, the records from the hospital, Home and Council, and independent clinical advice from a physician. I have not found any evidence of fault by the Trust in discharging Mr D when it did.
28. The hospital records say Mr D’s NEWS (national early warning score) score on the day he was discharged was 0 (normal), and he did not need oxygen to help his breathing. The note of the consultant’s review that day was brief but did not find any reason for concern. Mr D had finished intravenous antibiotics and was not having any other treatments that needed him to stay in hospital. At that point in time the treatments for COVID-19 were only appropriate if the person had significant symptoms, which Mr D did not.
29. The government guidance in place at the time was:
• Hospital discharge service: policy and operating model (16 September 2020)
• Discharge into care homes: designated settings (13 January 2021)
• Admission and care of residents in a care home during COVID-19 (24 December 2020)
30. The Hospital discharge service policy said hospitals must discharge people who no longer met the criteria to be in hospital as soon as it was clinically safe to do so. This was because of the importance of moving people out of hospital and freeing up beds as quickly as possible during the COVID-19 pandemic.
31. The Designated settings guidance said people being discharged from hospital to a care home who were COVID-19 positive would be discharged to a designated setting (care home) to complete the recommended 14-day isolation period.
32. Mr D did not meet the criteria to stay in hospital, under the Hospital discharge service policy. It is clear he was unwell and needed ongoing support for everyday activities, but this did not need to be provided in an acute hospital setting. The Trust and Council were arranging for Mr D to have this support in his own home, but when he contracted COVID-19 the plan changed and he was discharged to a designated setting. This was appropriate and in line with relevant guidance.
33. The positive COVID-19 result did not change the situation in terms of Mr D’s fitness for discharge as he did not have COVID-19 symptoms and did not need oxygen treatment at that time. The natural progression of COVID-19 in some people was a deterioration a week or two after becoming infected. Until that happened there was no treatment that would have altered the progression of the illness, as set out by guidance from the National Institute for Health and Care Excellence, COVID‑19 rapid guideline: managing COVID-19 (March 2021). Staying in hospital is unlikely to have prevented Mr D’s later deterioration.
34. I have not found any evidence of fault in how the Trust assessed Mr D’s fitness for discharge from hospital or in its decision to discharge him.

Communication between the hospital and Mr D’s family

35. Mrs B and Mrs C said the hospital’s communication with them about Mr D’s palliative status and what this meant was poor. They also said the family, particularly Mrs D, was not given any other options than for Mr D to be discharged to a designated setting once he had contracted COVID-19.
36. The Trust apologised it did not fully discuss decisions about Mr D’s discharge placement with Mrs D and did not tell her the family could try to source other care arrangements to support Mr D at home rather than him going to a designated setting. The Trust said many lessons had been learned during the COVID-19 pandemic, and the Discharge Team would not have prevented the family taking Mr D home if they had wanted to.
37. In terms of Mr D’s palliative status, the Trust said the palliative team can offer help with pain and symptom control, and it is not solely for end-of-life care discussions. It apologised the role of the palliative team in this case was not adequately explained to Mr D’s family and for the upset this caused.
38. The poor communication between the Trust and Mr D’s family was fault. The General Medical Council’s Good Medical Practice (2016) guidance makes it clear that doctors must give patients and their families the information they want or need to know, in a way they can understand. This did not happen here. The Trust has acknowledged this failing and apologised. This poor communication caused avoidable distress and upset for Mr D’s family. The Trust has apologised for the upset caused and said many lessons had been learned.

Communication between the hospital, the Home and Mr D’s family

39. Mrs B and Mrs C complained the hospital’s communication with the Home about Mr D’s palliative status, and what the anticipatory medications were for, was poor. They also complained the discharge summary did not include details of Mr D’s COVID-positive status.

The Trust

40. The Trust accepted Mr D’s COVID-19 status should have been correct on the discharge summary, and apologised. It said the Home would have been aware of Mr D’s COVID-positive status as it was a designated setting solely taking COVID-positive patients.
41. The Trust said the palliative team suggested Mr D should have anticipatory medications prescribed to manage potential symptoms of pain, nausea, sickness and shortness of breath, if he should deteriorate after discharge. It said Mr D had underlying health conditions and patients are prescribed anticipatory medications to prevent unnecessary pain and distress if needed, and to prevent delays in symptom relief if the patient is waiting to be seen by a GP in the community. The Trust also said staff in nursing homes are trained on how to give anticipatory medications.
42. The records show the Trust phoned the Home to provide information about Mr D. The records mention a handover but they do not give much detail about what was said. The records say the Trust told the Home about Mr D’s risk of falling and his mobility difficulties. Without further detail, we cannot say whether the handover information was sufficient. In particular, we cannot see what information was given about Mr D’s clinical status in terms of palliative status and why anticipatory medications had been prescribed. However, the reports from the Home staff suggest the information about the use of anticipatory medications and Mr D’s palliative status was not clear when the Trust handed over his care.
43. The Good Medical Practice (2016) guidance says doctors must contribute to the safe transfer of patients between healthcare providers and between health and social care providers. The doctor must share all relevant information with colleagues involved in the patient’s care, within and outside the hospital team. The Trust has acknowledged it did not communicate or explain Mr D’s palliative discharge with anticipatory medications thoroughly. This was fault. The Trust apologised and said it would learn from this.

The Home

44. The Home’s records for 28 January 2021 say “Discussed earlier conversation I had with home manager as there seems to be confusion about what has been discussed and its interpretation. [Mr D] is comfortable and does not need to start on any anticipatory medications at this time”.
45. The Home’s records show that on 29 January Mr D’s vital signs (tests to see basic indicators of health status, including blood pressure, oxygen saturation and heart rate) were in normal range at 16:30. At 19:39, when a member of staff went to get Mr D ready for bed, they noted Mr D “looked poorly and chesty… non-responsive….contacted family for their opinion about hospital admission, as he was discharged from hospital with anticipatory meds….informed home manager about calling ambulance for further medical assistance”.
46. When the Home met with Mr D’s family to discuss their complaint, it said it had tried to get more information about Mr D’s palliative status and had spoken with Mrs D to try and get more clarity about Mr D’s wishes and those of his family. Mr D’s family dispute that this happened. The Home said there was some confusion because staff did not think Mr D needed end-of-life care. It said staff knew Mr D had been taken off the palliative team “watch list” so the Home had not put an end-of-life care plan in place as the plan was for Mr D to go home after his COVID-19 isolation ended.
47. The Home also said it had tried to understand why Mr D had anticipatory medications if the plan was for him to be discharged home after the COVID-19 isolation period. It acknowledged it had not addressed these issues about palliative status and anticipatory medications in detail before Mr D deteriorated significantly on 29 January. It said it was not unusual for patients to be discharged with anticipatory medications due to the unpredictable nature of COVID-19, so this had not triggered any immediate concern.
48. The Home said Mr D’s assessment a couple of hours before he deteriorated on 29 January was within normal range. When his symptoms caused concern in the early evening it called an ambulance quickly and Mr D went to hospital. The Home said anticipatory medicines would not be the first response in a situation like this, and staff were monitoring Mr D. In the Home’s evidence to us, it said anticipatory medications are sometimes prescribed several months in advance, when a person is likely to deteriorate in the future, so the medication can be available to give to the patient without a delay. It also said it would have been very early to start anticipatory medications when Mr D became unwell, as he had a rapid deterioration.
49. Our physician adviser noted Mr D had a AAA that had expanded and was at risk of rupture. The hospital had decided surgery for the aneurysm would not be appropriate due to Mr D’s frailty. If the AAA had ruptured then treatment with anticipatory medications to ensure a comfortable death would have been appropriate. On that basis, prescribing anticipatory medications in this situation was appropriate even though other aspects of Mr D’s health had stabilised when he was in hospital.
50. However, as the Trust has already acknowledged, there were failings in its communication with Mr D’s family and the Home about Mr D’s clinical status, the role of the palliative team in his case, and the circumstances the anticipatory medications were prescribed for. The poor communication about this was fault. This lack of clarity in communication caused avoidable distress and upset for Mr D’s family.
51. It seems unlikely the Home would have started anticipatory medications for Mr D even if it had clearer information about his status and the anticipatory medications, due to the sudden nature of his deterioration. I have addressed this in the next section.

Deterioration, and re-admission to hospital

52. Mrs B and Mrs C complained the Home did not act quickly enough when Mr D deteriorated on 28 and 29 January 2021. They asked why the Home did not call an ambulance sooner, as Mr D deteriorated very quickly and the hospital said he was “actively dying” when he was admitted. They said when the paramedics arrived they gave Mr D medication to make him comfortable, and they felt the Home should have done this earlier.
53. Mrs B and Mrs C also said if the Home had put an appropriate palliative care plan in place Mrs D would have been able to spend valuable time with Mr D before he died, and he could have had a comfortable death with his family around him.
54. The Home said it would not have been appropriate to give Mr D the anticipatory medications based on the acute symptoms he had on 29 January. It said it called an ambulance quickly after staff found Mr D had deteriorated at 18:45. The ambulance arrived within less than an hour, and staff tried their best to provide care and compassion to Mr D over that short period of time. They also contacted Mrs D to speak with her about her and her husband’s wishes and Mrs D said she wanted her husband to go to hospital. When the paramedics arrived they assessed Mr D and decided to take him to hospital.
55. I asked our physician adviser to comment on whether events might have been different if the communication between the Trust and the Home about Mr D’s status and the role of anticipatory medications had been better. It is his view that sadly Mr D would still likely have deteriorated at the same time as he did. He also said treatments would not have made a difference to the eventual outcome.
56. Having weighed up all the evidence, I have concluded Mr D’s decline was unexpected and quite sudden. Mr D’s family dispute this. The primary cause of Mr D’s death was listed as COVID-19 pneumonia. NHS information about COVID-19 in frail patients is they can deteriorate rapidly and become critically ill around one week after the onset of the illness. The NHS.uk website sets out the circumstances in which to call 999 if a COVID-19 patient suddenly deteriorates. If an ambulance is called and paramedics attend the patient, they can take the patient to hospital for assessment and, if appropriate, further treatment.
57. I can appreciate the distress these events have caused to Mrs D and her family, and their concern Mr D may have suffered in this period.
58. Having carefully considered the available evidence, I have not found fault in how the Home responded to Mr D’s deterioration on 29 January 2021. The Home contacted Mrs D to discuss her wishes, it called an ambulance without delay, and it tried to keep Mr D comfortable while waiting for the ambulance to arrive. The paramedics decided to take Mr D to hospital and gave him medication to make him comfortable. It would not have been appropriate for the Home to put Mr D on a palliative care plan when he arrived, as he was not discharged from hospital as needing end-of-life care.
59. Even if the Home had clearer information about Mr D’s palliative status and the role of anticipatory medications for him, it is likely to have called an ambulance to attend and decide whether to take him to hospital. Mrs D said she wanted her husband to receive “active treatment”, and the original discharge plan was for him to complete his COVID-19 isolation at the Home and then go on to his own home, with carer support coming in. Taking all this into account, I have not seen fault in the Home’s actions on 29 January, based on the evidence it had about Mr D’s needs and Mrs D’s wishes.

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Agreed action

60. I have found fault in the Trust’s communication with Mr D’s family whilst he was in hospital, and in communication between the Trust, Mr D’s family and the Home about his needs on and after his discharge from hospital. The Trust has acknowledged and apologised for the distress caused by these failings, but has not set out what action it has taken to address and learn from this.
61. The Trust has agreed to write to Mrs B and Mrs C to outline what lessons it has learned from this complaint, and what changes it has or will make to improve processes in terms of communication, where we have identified fault. The Trust has agreed to do this within one month of our final decision and send a copy to us.

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Decision

62. We found fault in the Trust’s communication with Mr D’s family and the Home. These failings have caused avoidable distress to Mrs B and Mrs C. The Trust has agreed to take action to remedy this injustice. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman