The Ombudsman's final decision:
Summary: The Ombudsmen find no evidence of failings in the way health and social care services supported a woman on oxygen therapy who lived on her own. The professionals respected the woman’s wishes and were not at fault for a tragic incident.
- Ms T complains about the care her mother, Mrs D, got in the weeks before she died. Ms T said she raised concerns about the safety of her mother at home with:
- Her mother’s GP, Lockfield Surgery (the Surgery)
- The NHS 111 service, provided by West Midlands Doctors Urgent Care (the 111 service)
- An out-of-hours doctor, provided by Primecare – Primary Care – Birmingham (Primecare)
- Wolverhampton City Council (the Council)
- Ms T complains no one did anything. She complains that, as a result, Mrs D died in a way Ms T warned may happen.
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 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 read the correspondence Ms T sent to the Ombudsmen and spoke to her via telephone. I read the Surgery’s, the 111 service’s, Primecare’s and the Council’s responses to Ms T’s complaints and relevant records. I also considered papers from NHS England.
- I read relevant legislation and guidance and got advice from a clinical adviser – a GP with suitable knowledge and experience.
- I shared a confidential copy of my draft decision with Ms T and all the organisations to explain my provisional findings. I invited their comments on this and considered those I received in response.
What I found
- Every adult has the right to make their own decisions if they have the capacity to do so. This includes decisions that others might think are unwise. Health and social care staff must presume people have capacity to make choices about their own care unless there is proof to the contrary (Section 1, Mental Capacity Act 2005; Part 2, Mental Capacity Act Code of Practice).
- If a council thinks someone might be at risk of neglect or abuse, and cannot protect themselves from those risks, it must make any necessary enquiries. The council must also decide whether anyone should take any action to protect the person (section 42, Care Act 2014). When following these duties all professionals must work in line with the Mental Capacity Act (Section 14.56, Care and Support Statutory Guidance). It is also very important that they take the wishes of the adult into account (Section 14.96, Care and Support Statutory Guidance).
- Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. The council must involve the individual and, where suitable, their carer or any other person they might want involved (Sections 9 and 10, Care Act 2014). A person may refuse to have an assessment. In these circumstances councils do not have to carry out an assessment (Section 6.20, Care and Support Statutory Guidance).
Long term oxygen therapy
- Oxygen therapy can help people with some lung conditions to live longer. Different lung conditions need different prescriptions. Specialists carry out assessments to decide if oxygen will help. When people are given oxygen therapy they should be warned about the risks of fire and explosion if they continue to smoke (Section 22.214.171.124, NICE Clinical Guideline 101 – Chronic Obstructive Pulmonary Disease in over 16s: diagnosis and management; and, Pages i26 and i27, British Thoracic Society Guidelines for Home Oxygen Use in Adults). Professionals are not expected to automatically remove oxygen because of the risk of fire. There needs to be careful consideration before home oxygen is removed. Ideally, all the healthcare professionals involved in the person’s care should be involved in agreeing a plan before oxygen is removed (Appendix 7, British Thoracic Society Guidelines for Home Oxygen Use in Adults).
- Mrs D turned 76 in the middle of 2015. She had several long term health problems, including lung disease. She lived alone. Mrs D had attended appointments at a Respiratory Clinic and was on long term oxygen therapy, to use at home. Mrs D continued to be a heavy smoker, smoking 40 cigarettes a day.
- In February 2016 Ms T had concerns that Mrs D was becoming more and more confused. Ms T worried about the possible consequences of this, particularly as she smoked and had oxygen at home.
GP appointment in early February 2016
- In early February 2016 Mrs D saw a GP at the Surgery for several issues. During the appointment the GP completed an ‘initial memory assessment’. The GP reported that this did not highlight any issues.
Call to 111 in February 2016
- Ms T called the 111 service in late February 2016. She said Mrs D was acting strangely, kept falling asleep and had a severe pain in her temple. Staff advised Ms T to speak to the Surgery.
Telephone conversation with a nurse in the Surgery in February 2016
- The following day Ms T spoke to a nurse at the Surgery and noted her concerns about Mrs D’s changing behaviour. She said she wanted the GP to be told of these concerns in advance, as she did not want to discuss them in front of Mrs D. The nurse made an appointment for Mrs D to see a GP three working days later, on 2 March 2016.
GP appointment on 2 March 2016
- Mrs D saw the GP on 2 March, and Ms T went with her. The GP noted Mrs D had oxygen at home. The GP had concerns about Mrs D’s oxygen levels and offered to admit Mrs D to hospital. Mrs D did not want to go. The GP felt Mrs D was capable of making her own choice about this.
Call to 111 on 2 March 2016
- Later that day Ms T called the 111 service due to concerns about Mrs D’s behaviour. The 111 service asked Primecare to contact her. It also said Ms T could speak to a GP about asking for a social care assessment. The 111 service also got Ms T’s consent to make a ‘Vulnerable Adult’ referral to the Council.
Visit by Primecare on 3 March 2016
- Primecare sent a doctor to see Mrs D in the early hours of 3 March 2016. The doctor felt Mrs D’s regular GP should complete some tests to check whether she might have dementia, and whether she should be referred on to an appropriate service.
Vulnerable Adult referral to the Council
- The Council received the referral from the 111 service on 3 March 2016. A manager reviewed it the same day and decided they needed more information. They felt it might be appropriate to complete a Care Act assessment, and noted that health professionals were involved in Mrs D’s care. The manager asked a social worker to get some more information.
GP appointment on 4 March 2016
- Mrs D saw a GP again on 4 March 2016, with Ms T present. The GP was still concerned about Mrs D’s oxygen levels and offered to admit her to hospital again. Mrs D did not want to go. She said she was due to have an appointment with the Respiratory Clinic in a few days and was happy to wait for that.
Council’s attempts to get more information
- Also on 4 March, a social worker tried to call Ms T but was not able to get through on the numbers they had. They left a message for Ms T on an answer phone. The social worker called and spoke to Mrs D who said she did not want any help. Mrs D said she would tell Ms T the social worker had called and would ask Ms T to call them back.
- In the late evening of 4 March a fire started in Mrs D’s house and she sadly died.
The 111 service
- The role of the 111 service is to offer advice and connect people to suitable sources of help. The 111 service considered Ms T’s concerns and offered advice about speaking to Mrs D’s regular GP, and referred Mrs D on to the Council. These were appropriate actions, in keeping with its role and what it knew about Mrs D’s health.
- Primecare completed a telephone assessment and arranged for a doctor to go and see Mrs D to make sure she did not need urgent medical care. The doctor ruled this out and there is nothing to suggest Mrs D needed an emergency admission to hospital. Therefore, it was appropriate for Primecare to suggest Mrs D explore things further with the Surgery the next day.
- All health and social care professionals must start by assuming a person is able to make their own choices about their life. Guidance about this notes that people can make unwise decisions, but this does not mean that they cannot make up their own mind, or that professionals should override their choices.
- When staff from the Surgery saw Mrs D they did not notice anything which led them to think she could not make her own choices. Therefore, they needed to respect her wishes. It was Mrs D’s choice to smoke, and her choice to stay at home rather than go into hospital when the Surgery offered to admit her.
- It is for specialists to decide whether to prescribe long term oxygen therapy. They also need to decide whether to remove the oxygen, if there are concerns about its safety. The Surgery had not prescribed oxygen for Mrs D to use at home. An appropriate specialist service had done so and was keeping it under review. The Surgery understood Mrs D was due to see that service soon. Therefore, it would have been inappropriate for a professional outside of that specialist service to have interfered with Mrs D’s oxygen therapy.
- Overall, there is evidence to show the Surgery tried to treat Mrs D’s presenting symptoms when they saw her. I have not found any fault in the way the Surgery cared for Mrs D.
- The Council acted on the ‘Vulnerable Adult’ referral the same day it received it. It considered the information it had and there are understandable reasons why it wanted to get more information. It too considered Mrs D’s own wishes, and that was appropriate.
- Even if the social worker had been able to speak to Ms T on 4 March it is unlikely they could have done anything to prevent what happened. The most likely outcome would have been for the social worker to have visited Mrs D to talk to her about her day-to-day life, and to find out if she wanted or needed any help. This, in turn, might have led to a care plan and possibly a care package. However, the Council would not have been able to stop Mrs D smoking, remove cigarettes from the house or remove the oxygen.
- This was a tragic incident, made more distressing for Ms T as she had predicted there could be a house fire because of her mother’s smoking and the oxygen. She did what she could to make people aware of her concerns. However, it was right for the professionals involved to find out Mrs D’s wishes and to respect them. It would not have been appropriate for any of these professionals to have removed the oxygen. Therefore, I have not found any evidence of fault.
- I have closed my investigation on the basis that there is no evidence of fault.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman