The Ombudsman's final decision:
Summary: Dr A has complained in relation to the care of her mother at a Care Home and the delay in a fast-track application for Continuing Healthcare funding. We do not find fault with the care provided or the delay in the application that caused Dr A the injustice has claimed.
- Dr A has complained on behalf of her mother, Mrs B, in relation to her care at Bramcote Hills Care Home (the Home) between October 2018 and May 2019. The care was funded by the Council with a contribution from Mrs B. Dr A also complained about the delay in a Continuing Healthcare (CHC) referral by the Home and her mother’s GP, the Abbey Medical Centre (the GP).
- Specifically, Dr A complains about her mother’s nutrition and a lack of orthopaedic equipment at the Home as well as poor pressure area management. This led to her mother losing weight and her legs becoming extremely swollen which caused her pain and affected her mobility.
- Dr A suffered distress from seeing her mother’s weight loss and her being in pain. Dr A had counselling and suffered depression. It also led to her family having to request a fast-track referral for CHC in May 2019 after her mother was put on end-of-life care.
- Dr A would like an acknowledgement, apology and service improvements for any failings in care and the delay in the CHC fast track application.
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.
- 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 papers submitted by Dr A and discussed the complaint with her. I considered the Council, the Home and the GP’s comments about the complaint and the supporting documents they provided. I have also taken the relevant law and guidance into account.
- Dr A and the organisations had an opportunity to comment on my draft decision before I made my final decision.
What I found
Relevant law and guidance
- Part 4 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 (the Regulations) governs the care of patients such as Mrs B in residential care. Regulation 9 – ‘Care and welfare of people who use services’ states providers should ensure:
“People experience effective, safe and appropriate care, treatment and support that meets their needs and protects their rights.”
Regulation 14 – ‘Meeting nutritional needs’ states providers should ensure:
“People are encouraged and supported to have sufficient food and drink that is nutritional and balanced, and a choice of food and drink to meet their different needs.”
Also relevant to this case is Regulation 16 – ‘Safety, availability and suitability of equipment’ which states:
“Where equipment is used, it is safe, available, comfortable and suitable for people’s needs.”
- The Malnutrition Universal Screening Tool (MUST) is used to identify adults who are at risk of malnutrition in care settings and includes management guidelines which can be used to develop a care plan for them.
- CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. The guidance governing fast track referrals is the Fast Track Pathway Tool (the Fast Track Tool) and the 2018 National Framework for Continuing Healthcare and NHS-Funded Nursing care (the National Framework).
- Mrs B was in her late nineties and had lived in the Home for over five years. In 2019 her health deteriorated and she sadly died in June.
- Following her mother’s death, Dr A complained to the Home regarding her mother’s nutrition, orthopaedic management and the lack of a fast-track referral.
- She said her mother was at high risk of malnutrition, but her weight was not monitored properly as the scales at the Home were broken. Dr A said the orthopaedic chair in her mother’s room was also broken and she could not elevate her feet. This meant her mother’s feet were often swollen and she was in a lot of pain.
- In addition, Dr A said an advanced nursing practitioner from the GP practice saw her mother on 9 May 2019 and prescribed end-of-life medication, but the Home did not make a fast-track CHC referral request to the GP nor did the GP make a referral to the Clinical Commissioning Group (CCG), which was responsible for deciding if Mrs B was eligible for this type of funding.
- Dr A complained it was left to Mrs B’s granddaughter to contact the CCG directly in late May. The CCG assessed Mrs B and CHC funding was agreed just a week before her death.
- In response to the complaint about nutrition, the Home said the weighing scales did break but they were replaced. It said Mrs B was weighed regularly and the only significant change in her weight was in the last few weeks before the end of her life.
- Mrs B’s GP has also said she was on nutrition shakes during this period from October 2018 to May 2019 and the Home were monitoring her weight.
- Regarding the orthopaedic chair, the Home said, in its complaint response to Dr A, that it was not an orthopaedic chair but a reclining chair that had been used by the resident in Mrs B’s room before her. The Home went on to say Mrs B did not require an orthopaedic chair, but she used the recliner until it broke and rather than having it repaired the Home gave it away. The recliner was replaced by a chair and footstool.
- In relation to the fast-track application for CHC, the Home said it did not think Mrs B’s decline was a rapid deterioration and was more gradual and so did not require a fast-track referral. It went on to say it is not the Home’s role to make the actual referrals as the criteria for referrals states it has to be a medical practitioner or registered nurse. However, it did say that it had instructed staff in future to ask the prescriber of the end-of-life medication if a fast-track referral would be made.
- The GP said on 9 May the Home noticed a deterioration in mobility, reduced diet and fluid intake and that Mrs B was losing weight. An advanced nurse practitioner attended and assessed Mrs B who was put on end-of-life care.
- The GP said the family rang them on 22 May to say they were unhappy with the level of care. The GP reviewed Mrs B on 24 May and was satisfied she had the required level of nursing care to meet her needs.
- The GP said referrals for fast-track CHC are to enable escalating nursing or care needs to be met urgently and should be funded by the NHS where there is a medical cause for those escalating needs. They went on to say that usually the Home would flag when patient had a new primary health need that was intense, complex or unpredictable and request a fast-track referral from a GP, district nurse, or palliative care nurse.
- In this case no request for a fast-track referral was made by the Home to the GP. The GP said this may have been because the Home was managing Mrs B’s needs and there was no need for further support. The GP said they would not usually make a fast-track referral when the needs were being met by the existing arrangement.
- The GP said after recognising the distress this type of situation can cause families when they are incurring a cost which would otherwise be met by the NHS, they had changed their practice. In future they will make enquiries around fast-track applications in every end-of-life scenario to try and reduce the chances of this happening again.
- Mrs B weighed 34 kilos in August 2018. She had a MUST score of 2 or 3 throughout the period in question. A score of 2 or more is classed as high risk and MUST guidelines recommend a referral to a dietician to improve and increase overall nutritional intake and monitor and review the care plan monthly. The Home’s actions were in line with this guidance and with Regulation 14.
- Mrs B was given breakfast, lunch and dinner as well as drinks and snacks throughout the period in question. Sometimes she did not finish all of them, which supports the need to give her food supplements. However, she was eating regularly and almost every day. When she did not eat it was due to her not wanting to and the evidence shows the Home took appropriate action to encourage her to eat.
- There is evidence Mrs B was weighed weekly from August 2018 to May 2019 and her weight ranged between 34 kilos to just below 30 kilos. As late as April 2019 her weight was nearly 32 kilos. This does not indicate a rapid decline in weight but rather a fluctuating low weight which was being managed by the Home.
- I am satisfied the Home’s and GP’s explanations are based on the evidence in the care home notes that Mrs B was given regular nutrition and weighed weekly. Her weight, although low, remained stable until her deterioration in the last few weeks of her life and so my view is there was no fault in this aspect of her care.
- The Home records illustrate Mrs B sometimes suffered from swollen feet and her feet should have been raised on the recliner or a footstool. She could sometimes transfer to bed with her zimmer frame but if her feet were sore and swollen she would require a hoist.
- I could find no reference in the records to an orthopaedic chair, or the need for one. There is a statement from a technician on file which states they were tasked with making the reclining chair ‘powered’ so that Mrs B could put her feet up due to swelling. There are skin care charts which detail when Mrs B was repositioned in bed or in her chair. There is no evidence in these charts of her feet not being raised or her being in so much pain so that it required an intervention.
- Therefore, I do not find fault with how the Home cared for Mrs B or the Home’s explanations to Dr A . There is insufficient evidence Mrs B required an orthopaedic chair or that a fault in the care by the Home caused her leg pain. In addition, my view is that the supply of equipment met the requirements Regulation 16.
CHC fast-track referral
- The Fast-Track Tool states:
“Individuals with a rapidly deteriorating condition that may be entering a terminal phase, may require ‘fast tracking’ for immediate provision of NHS Continuing Healthcare.”
- It also states that an ‘appropriate clinician’ should make the application and this would be a clinician responsible for the patient’s care. In this case, the GP would meet these criteria.
- The Fast-Track Tool says if an individual meets the criteria for its use then it should be completed even if an individual is already receiving a care package (other than one already fully funded by the NHS) which could still meet their needs. This is important because the individual may be funding their own care or the local authority may be funding (and/or charging) when the NHS should now be funding the care in full.
- In this case then the GP was not aware that even if Mrs B’s needs were being met, an application should still have been made if they felt she met the criteria.
- The GP has changed their practice to ensure that applications will be made where a person meets the criteria, even if the care provided is meeting the person’s needs. In addition, the GP has stated that they did not feel there was a clear escalation of need that needed to be met urgently and was due to a medical cause. Therefore, in their opinion Mrs B did not qualify for an application.
- Even though Mrs B was found eligible through a fast-track application just weeks later, the GP has provided a cogent explanation of why they did not feel Mrs B had a primary health need as outlined by the National Framework. Therefore, my view is that while there was a lack of awareness of the guidance in the GP’s processes at the time, these had no adverse impact on Mrs B as the GP would not have made a fast-track referral anyway because they considered the changes in Mrs B’s health were not a rapid deterioration.
- In relation to the Home, the National Framework states that those involved in supporting individuals, even if they are not approved clinicians, may identify the fact that the individual has needs for which use of the Fast-Track Tool might be appropriate. In these cases, they should contact the appropriate clinician and ask for consideration to be given to completion of the Fast-Track Tool.
- In this case the Home also did not feel Mrs B’s condition was rapidly deteriorating and so did not ask the GP to make a referral. I am satisfied that the Home properly considered Mrs B’s condition and that it has given a clear rationale for its actions. However, the Home has improved its process to ensure it will raise the issue of a fast-track referral in every end-of-life situation.
- I found no fault in this case as the care met Mrs B’s needs and the organisations have given a satisfactory explanation for why a fast-track application was not made.
Investigator’s final decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman