NHS Cheshire and Merseyside ICB (23 016 524b)

Category : Health > Assessment and funding

Decision : Not upheld

Decision date : 27 Aug 2024

The Ombudsman's final decision:

Summary: Miss X complains about the care provided to her deceased partner Mr Y. Park House Care Home ran out of his prescribed antibiotic, he got an infection and three days later sadly died. We found indications of fault; staff did not keep accurate records, so I do not know what happened. We cannot remedy the injustice to Mr Y so we recommended and Four Seasons agreed to apologise, make service improvements and a symbolic payment to remedy the injustice to Miss X.

The complaint

  1. Miss X complains about the care her partner, Mr Y (deceased), received at Park House Care Home (the Care Home), then run by Four Seasons Health Care Limited. Mr Y received continuing healthcare funding from NHS Cheshire & Merseyside Integrated Care Board.
  2. Miss X complains the Care Home ran out of one of Mr Y’s essential medications and did not take enough action to replace it, leaving him without for four days. The Care Home staff also gave Mr Y paracetamol instead but have not explained why.
  3. Miss X also complains the Care Home has not accepted its actions were wrong during the local investigation of her complaint and this has left her concerned other residents may be at risk.
  4. The missing medication staved off the risk of infection. As soon as Mr Y stopped receiving it, he got an infection and died three days later of pneumonia sepsis.
  5. Miss X wants the Care Home to recognise it was wrong and its actions were not in line with guidance. She wants an apology and reassurance improvements have been made so other residents are not at risk.

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The Ombudsmen’s role and powers

  1. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA). The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. (Local Government Act 1974, sections 34B, and 34C, as amended). The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services (Health Service Commissioners Act 1993, section 3(1)).
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
  3. If it has, we 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.
  4. We 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 decision was reached. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7)).
  5. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i)).
  6. 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

  1. I considered the complaint Miss X made to us and the further information she provided to the Ombudsmen. I also considered the information Four Seasons and the ICB provided in response to my enquiries.
  2. I shared a confidential draft with Miss X, Four Seasons and the ICB to explain my provisional findings and invited their comments on them. I considered the comments I received before making a final decision.

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What I found

Background

  1. Mr Y had a rare neurological condition which caused problems with his balance, movement, speech, vision and swallowing. Because of this, he had complex needs.
  2. He was previously cared for at home by Miss X with support from a care agency to help her. In March 2023, Miss X saw a change in Mr Y’s behaviour and needs and she sought help because she was struggling to cope. Mr Y moved to a residential care setting as it could better provide the care he needed. He moved to Park House in late May 2023.

What happened

  1. Mr Y was taking several medications to help him. One was nitrofurantoin, an antibacterial medication used to treat and prevent infections in the urinary tract system. His records state “on long term prophylactic antibiotic nitrofurantoin due to recurrent urinary tract infection” and he should receive 50mg every evening and this given through his feeding bag. The evidence shows all staff should have been aware of Mr Y’s need for this antibiotic, and the risk if he did not receive it. Miss X said the medication was actually given on a spoon, and not in his feeding bag.
  2. Four Seasons explained its care homes order medication for their residents monthly, from a named provider. They begin the medication ordering cycle on the eighth of every month, and this can be done by any member of the clinical staff at the home. The new medication cycle for each resident would then begin at the start of every month. I asked Four Seasons to provide a copy of the medication order form for Mr Y for July 2023, it has failed to do so.
  3. Four Seasons said in July 2023 there was an issue with the named provider, and several residents did not receive their medication on time. It explained staff from Park House acted in line with its policy ‘How to Order and Receive Medicines’ and there was nothing more it could have done.
  4. I have reviewed this policy and it confirms orders should start by day eight of the 28-day cycle to allow 20 days for delivery. It also says copies should be kept. It also contains a section titled ‘if medicines run out’ and explains staff should “place a call to the resident’s GP surgery, explain the circumstances regarding the shortage… make a follow up call to check if the prescription is ready and ensure it is collected and sent to the pharmacy within working hours”.
  5. Four Seasons said Mr Y’s prescription was not delivered on time by their named provider. I asked them what staff at Park House did when it was realised the medication was missing, and to provide evidence of this for me to consider.
  6. Four Seasons has not provided any evidence of the medication order, follow up when it was not received or any attempt to get an emergency supply until the full prescription was delivered. This is in breach of the terms of its own policy. This is fault.
  7. The Care Quality Commission (CQC) guidance for the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 also provides guidance which the Care Home could have consulted if it was unsure. Regulation 12(2)(f) says “where equipment or medicines are supplied by the service provider, ensuring that there are sufficient quantities of these to ensure the safety of service users and to meet their needs”. The care homes actions are not in line with guidance and is further evidence of fault.
  8. Four Seasons explained Mr Y could have paracetamol as a ‘PRN medication’, meaning as and when required. Staff from Park House gave his dose of paracetamol when the nitrofurantoin was not available.
  9. Paracetamol is not a medically recognised substitute for nitrofurantoin and while the two are safe to take together, paracetamol would not have had the same effect as the antibiotic. Mr Y caught an infection soon after the antibiotic stopped, was hospitalised and sadly died.
  10. During this investigation I asked Four Seasons to explain if staff sought advice from medical professionals about the substitution, or why giving the paracetamol would be effective. Four Seasons has said this was not instead of the antibiotic, but the records show it was given when the medication was not. It has failed to provide an explanation or evidence to support its actions.
  11. The CQC guidance for the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014, Regulation 17(2)(c) says providers must “maintain securely an accurate, complete and contemporaneous record in respect of each service user, including a record of the care and treatment provided to the service use and of decisions taken in relation to the care and treatment provided.”
  12. The National Institute of Clinical Excellence (NICE) also provides guidance specifically about keeping medication records. In ‘Managing Medicines in Care Homes’ 1.4.1 it states “health and social care practitioners should ensure that records about medicines are accurate and up-to-date”.
  13. The CQC guidance ‘Medicines administration records in adult social care’ says care providers should “keep medicines administration records for at least 8 years after the person’s care ended at the service.”
  14. NICE Managing Medicines in Care Homes says at 1.4.2 “care home providers must follow the relevant legislation to ensure that appropriate records about medicines are kept secure, for an appropriate period of time.” The records are not available for me to view, one year after the events. This is fault.

Summary

  1. Park House has not kept full and accurate records and this has hindered the investigation. I cannot say, even on the balance of probabilities, what happened or why staff acted the way they did as records are not available and the explanations provided from Four Seasons are not enough.
  2. Park House failed to keep Mr Y safe as it did not ensure he had received his medication prior to the start of the new medication cycle. It has provided no evidence of seeking external advice when it realised the mistake and has not shown any understanding of the impact it had on Mr Y, either to Miss X during the local complaints resolution process or during this investigation. This is concerning as this issue could go on to effect other residents were it to happen again.
  3. To date, neither Miss X or the Ombudsmen has received any reassurance Park House or Four Seasons has learnt from the mistakes and made changes.

Complaint handling

  1. Miss X complains Park House has not accepted its actions were wrong during the local investigation of her complaint. Miss X is also concerned the three responses she has have all come from Park House, without input from Four Seasons.
  2. Miss X received three responses to her complaint dated 17 August 2023, 19 September 2023 and 6 December 2023. The first two letters came from the same person, and the third letter from a different person.
  3. During this investigation, Four Seasons said it accepted Miss X’s complaint had not been handled in line with its policy. The first and second letters were written by the Home Manager. Four Seasons explained the second letter should have come from a different person when the first letter did not resolve Miss X’s concerns. This is fault.

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Agreed actions

  1. The Ombudsmen make the following recommendations.
  2. Within one month of the date of the final decision, Four Seasons should:
    • Apologise to Miss X for the faults identified in paragraphs 21, 22, 29 and 35.
    • Pay Miss X £2000 to reflect the significant distress, uncertainty about whether there would have been a different outcome for Mr Y, and the frustration caused by the poor complaint handling to her by the identified faults.
  3. Within three months of the date of the final decision, Four Seasons should:
    • Prepare a briefing note and send to all staff reminding them of the relevant guidance and legislation referred to in this decision. The note should signpost staff to the relevant guidance and legislation, particularly that which is referred to in this decision. Ensure all staff are aware of their responsibilities and offer further training to any staff who need it.
    • Prepare a briefing note and send to all staff about the importance of keeping accurate records. The note should signpost staff to the relevant guidance and legislation and ensure all staff are aware of their own responsibilities and offer further training to any staff who need it.
    • Prepare a briefing note to all complaint handling staff, remind them of the complaint policy and the importance of following this for all complaints.
  4. Four Seasons should provide the Ombudsmen with evidence it has complied with the agreed actions.

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Final decision

  1. I uphold this complaint. I found fault which led to an avoidable injustice to Mr Y and Miss X. I am unable to remedy the injustice to Mr Y, but I close the investigation on the basis the agreed actions provide a suitable remedy to Miss X.

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Investigator's decision on behalf of the Ombudsman

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