The Ombudsman's final decision:
Summary: We consider Boots UK Limited contributed to delays getting end of life medication to Mrs C before she died. Mr B suffered avoidable distress witnessing his mother in pain before she died. Boots should pay Mr B financial redress to recognise his injustice.
- Mr B complains about Stanhope Court Residential Care Home (Stanhope Court – owned by Age UK and commissioned by Wirral Metropolitan Borough Council), The Orchard Surgery (the Surgery) and Boots The Chemists Ltd (Boots). He says those organisations’ poor communication delayed his mother, Mrs C, receiving end of life medication before she died. Mr B says he suffered significant distress at witnessing his mother in pain before she died. Mr B would like the organisations to acknowledge their faults, implement service improvements, and compensation to recognise the distress he suffered.
The Ombudsmen’s role and powers
- 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)
- 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.
- 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.
- 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)
How I considered this complaint
- I spoke to Mr B about his complaint and considered the information he sent to me. I considered the responses to my enquiries from Stanhope Court, the Surgery and Boots. I also considered the relevant national guidance and legislation.
- Mr B and the organisations had an opportunity to comment on two versions of my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- The General Medical Council (GMC) has issued the guidance Treatment and care towards the end of life: good practice in decision making. It says that doctors “must plan ahead as much as possible to ensure timely access to safe, effective care and continuity in its delivery to meet the patient’s needs”. There is no guidance which says exactly when GPs should prescribe anticipatory end of life medication. Typically, it is prescribed when a GP considers that the patient is likely to need this medication in the next few days to small number of weeks. This depends on the GP’s judgement.
- Prescriptions are sent through the NHS electronic prescription service, which uses the NHS Spine to securely share the information with the nominated pharmacy. But the system cannot identify urgent prescriptions.
- Community pharmacists are required to dispense (hard copy and electronic) prescriptions with reasonable promptness in accordance with their Terms of Service from the National Health Service (Pharmaceutical and Local Pharmaceutical Services Regulations 2013. Reasonable promptness is generally considered ‘within 24 hours’ if the prescription is not considered urgent.
- Since January 2020, Boots has used a Pharmacy Communication Form so care homes can highlight any urgent prescriptions for its residents.
- To prevent the spread of coronavirus (COVID-19), since March 2020 most GP appointments, including “ward rounds” of care homes, have been by telephone.
- Mrs C was a resident at Stanhope Court, operated by Age UK.
- On the morning of 28 October 2020, Stanhope Court noted Mrs C was in pain when staff assisted her with personal care, so administered paracetamol.
- In the afternoon, Stanhope Court emailed the Surgery’s care home co-ordinator and said Mrs C was deteriorating. Staff felt Mrs C was nearing the end of her life and requested that family could visit her. The care home co-ordinator is not a clinical member of staff and could not access emails outside of working hours.
- Around 2pm, GP1 told Stanhope Court that Mrs C’s family could visit her as she was in the final weeks of her life. GP1 agreed to request anticipatory medications for Mrs C and asked the Surgery to move Mrs C from green to amber on the Gold Standards Framework (a framework used to enable earlier recognition of patients who might be in the last stage of their life). At 4.30pm, Stanhope Court chased GP1 for the anticipatory medications. However, the person at the Surgery that monitored emails from care homes had gone home.
- Stanhope Court noted Mrs C was again in pain at 2am on 29 October. So, staff administered paracetamol which settled her. Staff also noted Mrs C was unsettled around 7am.
- Stanhope Court chased the Surgery’s care home co-ordinator at 12.58pm and requested an urgent referral to the district nurse team to assess Mrs C. Mrs C was in pain and rapidly deteriorating. The care home co-ordinator shared that email with the Surgery at 1.05pm. At that time, GP1 handed over to GP2.
- Around 3pm, GP2 called Stanhope Court. After discussing Mrs C, GP2 agreed Mrs C needed a syringe driver, and asked district nurses to arrange that. GP2 then sent the anticipatory medication prescription to Boots in Birkenhead. Boots received that prescription at 3.21pm but did not note that prescription until the next day. Between 3pm and 5.30pm, Stanhope Court called Boots to chase the medications, but could not get through. Therefore, at around 6pm, Stanhope Court asked GP2 to send the prescription to a different Boots. GP2 agreed, cancelled the prescription with Birkenhead and sent a new one to Croft Retail Park. However, Croft Retail Park closed before it could process the prescription.
- At 8pm, Mr B called 111 and requested the anticipatory medications himself. They passed Mr B’s request to an out of hours (OOH) GP. Two hours later, the OOH GP triaged the prescription request and sent the medications to a pharmacy in a local NHS Trust. A district nurse collected those medications.
- On 30 October, at 12am, Stanhope Court administered the anticipatory medication to Mrs C (and documented that at 2am). The family asked staff to contact them if anything happened overnight.
- Later that morning, staff noted Mrs C was more settled since the district nurses had visited. However, Mr B told staff his mother looked in pain at around 9.30am. Staff called the district nurses to review Mrs C. But after they started the syringe driver, she died shortly after.
Mr B and Age UK’s complaint
- In early November 2020, Age UK complained to Boots. It said Stanhope Court called Boots around 30 times on 28 October, and their calls were not answered. It added Boots in Birkenhead failed to dispense the medication that Mrs C needed at the end of her life.
- Mr B raised complaints to Wirral Health and Care Commissioning (WHCC - an integrated partnership between the Council and the local clinical commission group) about Stanhope Court, the Surgery and a local NHS Trust in mid‑November.
- In early December Boots responded to Age UK. It could not explain why Stanhope Court could not get through to Birkenhead on 28 October. It provided alternative contact details to Stanhope Court for urgent cases in future. Also, it could not say why the prescription at 3pm on 29 October was not noted until 9am the next day. Boots also carried out a Patient Safety Review which identified the following improvements:
- It briefed teams on the importance of detailing calls received from organisations and downloading electronic prescriptions at the end of the day.
- It will ensure staff monitor NHS email accounts twice each day (and before closing) to identify any urgent prescriptions.
- It has checked all care homes in Birkenhead have updated contact details (phone and email). It also shared the correct form with care homes to highlight any urgent prescriptions.
- It tested telephones at the pharmacy and replaced it.
- It raised an IT issue about the printing of prescriptions, so it does not miss urgent ones in future.
- There needed to be a more robust system for care homes to alert the Surgery to urgent requests. It would provide care homes with a direct emergency line.
- It will develop a protocol with Stanhope Court to improve end of life care, treatment, and communication. The protocol will ensure it defines what good end of life care is and how they can ensure similar fault does not happen to others.
- It will ensure there are weekly conversations between the Surgery and care homes about patients near the end of their life.
- It could not say why the Surgery delayed prescribing the anticipatory medications after 28 October.
- Mrs C did not report pain until the early hours of 29 October 2020, and it repeatedly chased the anticipatory medications after 3pm on that day.
- It could not say why 111 suggested Mr B collect the medications on 29 October.
- It was sorry for the delays on 30 October, but were outside its control.
- Boots were the main cause of the delay getting the medications to Mrs C.
- If Mrs C needed the anticipatory medications sooner, then the Surgery or Stanhope Court should have told Boots at that time.
- In January 2021, it prepared an anonymous case study of Mrs C’s experience to senior regional leaders. They discussed the circumstances and how to mitigate those in future.
- In February 2021, it highlighted the importance of avoiding delay across all Boots stores by using clear, effective and timely communication.
- It continued to lobby for change around NHS digital issues, including not being able to flag prescriptions as urgent.
- Each organisation has accepted communication should have been better and there was a delay getting Mrs C’s anticipatory medication.
- Stanhope Court sent the first request for anticipatory medications at 4.20pm on 28 October. That was not actioned until the next day when Stanhope Court chased the Surgery at around 1pm and noted Mrs C was “rapidly deteriorating”. I do not consider the medications should have been flagged as urgent before 1pm on 29 October. On 28 October GP1 made a professional judgment that Mrs C was in the final weeks, not days, of her life. However, after 1pm on 29 October, Stanhope Court clearly noted Mrs C’s condition had deteriorated. From that point, the pain relief medications should have been sought urgently.
- GP2 has recognised ideally, they would have responded to Stanhope’s request sooner after 1.30pm on 29 October. However, GP2 told me they do not consider they could have responded sooner to Mrs C. They were first aware of Mrs C at 1.30pm and had to clinically assess her before making the anticipatory medication request. GP2 acknowledged it was an urgent request, but he had to make a professional judgement to triage four other urgent requests at that time. GP2 said they prioritised other patients before Mrs C. That was because Stanhope Court emailed the care home co-ordinator, which gave the impression it was less of an urgent request compared to the others. Also, Stanhope Court staff would have been closely monitoring Mrs C.
- I do not consider GP2 acted with fault. I am satisfied GP2 has clearly explained their reasoning and professional judgment for not seeing Mrs C sooner than they did. I cannot see what GP2 could have done differently at that time.
- The Surgery said it was an administrative oversight when GP2 did not change Mrs C from amber to red on the Gold Standards Framework. That was fault. However, I do consider there was any impact to Mrs C. By then, the Surgery and the district nurses were aware Mrs C had entered the last days of her life.
- I do not consider Stanhope Court were at fault for the delay getting Mrs C’s prescription. It appropriately referred Mrs C to the Surgery when she deteriorated. Also, on the balance of probabilities, I agree it did call Boots many times on 29 October to chase the anticipatory medications. Boots said it did not receive those calls, and there was no problem with its phone line. It added any calls after 5.30pm would not have been answered.
- There is clearly a difference of opinion between Boots and Stanhope Court. I do not doubt either organisations version of events. I cannot say why Stanhope Court’s calls to Boots did not connect.
- There is also a difference of opinion between Stanhope Court and Boots about how care homes can highlight urgent prescriptions:
- Boots said care homes should complete and send a Pharmacy Communication Form (the Form) where they can highlight any urgent prescriptions.
- Stanhope Court’s Manager said they were not aware of the Form. Stanhope Court said they have always called Boots directly to highlight urgent prescriptions.
The injustice to Mr B
- I cannot say when precisely Mrs C should have received the pain relief had the fault not occurred. However, I have no doubt that, if not for the fault, Mrs C suffered pain unnecessarily. The injustice to Mrs C cannot be remedied as she has passed away. But I consider Mr B suffered the avoidable distress of witnessing his mother in pain before she died.
- I am satisfied the organisations have put some very good improvements into place to improve their communication between each other and with families at the end of someone’s life. The joint protocol between Stanhope Court and the Surgery focussed on Mrs C’s experience. I consider that protocol will improve end of life care to residents.
- Boots has also recognised its issues with communication and ensured it would learn from Mrs C’s case. It has shared learning with senior leaders and will continue to lobby to improve NHS digital prescription services.
- Overall, I am satisfied the organisations have made service improvements which would avoid similar fault happening again to others. However, Boots should take further action to remedy Mr B’s injustice. 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.
- Within four weeks, Boots should pay £250 to Mr B to recognise the avoidable distress he suffered.
- Within eight weeks, Boots should ensure it has clearly communicated the importance of the Form to relevant local services.
- I have completed my investigation and uphold Mr B’s complaint against Boots. It acted with fault which caused injustice to Mr B. I am satisfied the actions Boots will take is sufficient to remedy his injustice. For the reasons explained in the ‘My findings’ section, the Surgery and Stanhope Court did not act with fault.
Investigator's decision on behalf of the Ombudsman