Summary: Ms A has complained about a care home and GP regarding their response to a fall her mother suffered in March 2020. The care home has already apologised for its delay in communicating with the family and there is nothing more we could achieve. We will not investigate this case as we are unlikely to find any further fault or add to the previous investigation by the care provider.

The complaint

1. Ms A has complained about Amberley Lodge (the Home), commissioned by London Borough of Croydon (the Council) and run by the company, Care UK, and a GP (the GP) in relation to the care of her mother, Mrs B after she suffered a fall at the Home in March 2020. Specifically, Ms A has complained:
• The Home and GP failed to arrange necessary investigations by a neurology specialist following a seizure her mother suffered after her fall, despite requests by the family
• The GP and the Home arranged for her mother to go to hospital for an x-ray of her hip, against the wishes of her family, who have lasting power of attorney
• The GP was rude and unprofessional to a member of the family
• The Home failed to keep the family informed of her mother's care and ignored emails from Ms A
• The Home lied about the amount of contact it had with the family
• The Home and Care UK failed to respond to the complaint within the prescribed timescales.
2. This meant that:
• The decision to take her mother for an x-ray meant she had to be isolated in the home (because of Covid), away from other residents, at a time when she needed care and company
• The family experienced stress, worry and confusion because of this decision, the lack of information and are worried this could happen again.
3. In bringing the complaint to the Ombudsman, Ms A would like:
• An apology from the Home, Care UK and the GP
• Assurance that Home staff and the GP practice will not override the lasting power of attorney again
• Some kind of financial gesture to her mother and the family to acknowledge the detrimental impact these events had on her mother’s wellbeing and the distress it caused the 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, 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)
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).
6. 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.
7. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants

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)

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How I considered this complaint

9. I considered information from the Home, GP and Ms A before making this draft decision. I considered Ms A’s comments on my draft decision before making my final decision.

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What I found

10. The Mental Capacity Act governs how a Lasting Power of Attorney will function in relation to a patient’s wishes. A person can give, whilst still alive, Lasting Power of Attorney for their health and welfare to a family member or other party. If the person lacks capacity to make a decision, these decisions can be made by their attorney.
11. The Mental Capacity Act Code of Practice states:
• Special considerations apply to decisions about life-sustaining treatment (paragraphs 5.29–5.36).
• The person’s past and present wishes and feelings, beliefs and values should be taken into account (paragraphs 5.37–5.48).
• The views of other people who are close to the person who lacks capacity should be considered, as well as the views of an attorney or deputy (paragraphs 5.49–5.55).
12. The Code of Practice also states if the decision is urgent, there may not be time to examine all possible factors, but the decision must still be made in the best interests of the person who lacks capacity.
13. In addition, staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:
• how the decision about the person’s best interests was reached
• what the reasons for reaching the decision were
• who was consulted to help work out best interests, and
• what particular factors were taken into account.

Background

14. On the morning of 24 March 2020 Mrs B had a fall from her bed at the Home and was seen to have seizure like activity whilst on the floor. Staff called the GP and she examined Mrs B a few hours later. The GP observed that Mrs B had a pain in her right hip and could not weight bear. The GP sent for some blood tests and advised the Home that Mrs B would need to have an x-ray to rule out a fractured hip.
15. The Home informed the family of the fall and the proposed x-ray. Ms A disagreed with this and sent an email at around 1.30pm to the Home stating that she had lasting power of attorney her mother’s health and welfare and she did not want her mother to be x-rayed. She felt with the radiation from the x-ray it would be more dangerous to take her to hospital. In addition, her mother had a hip operation in the past and had previously complained about pain in her hip without it being serious.
16. The Home informed the GP of this email and she rang Ms A’s sister, Ms C, around 2pm. In the call the GP explained the course of action regarding the x-ray and asked if Ms C, who also had lasting power of attorney, agreed with this treatment. Ms C did not consent and said she wanted to speak to Ms A first. She was also unhappy as she felt the GP was being rude. The GP informed the Home to let her know if the family contacted the Home again in the next hour and a half in opposition to the x-ray.
17. The GP rang the Home later and it informed the GP the x-ray had already been carried out, showed no fracture and Mrs B was back at the Home. The GP then examined Mrs B on 26 March. No further issues were reported, and the GP felt the shaking episode may have been as a result of a urine infection.
18. Ms A raised a complaint with the Home Manager which was passed on to Care UK, who run the Home. Ms A complained the family were not kept informed of her mother’s condition, that she was not properly investigated for her seizure, her mother was isolated and the family could not see her, and about the way her complaint had been handled.
19. Care UK took some input from the GP before responding to the complaint. Regarding the x-ray, it said the GP made a clinical decision in Mrs B’s best interests and that a GP can override a lasting power of attorney if they feel it is in the patient’s best interests. In relation to the seizure the GP said she was not sure if the seizure was due to a urinary infection, there was no recurrence of the seizure in hospital or when she examined her. In addition, a paramedic was called at the family’s request when Mrs B returned from hospital and they did not report anything significant.
20. Care UK acknowledged the Home had not communicated effectively and apologised for this. It said it would improve communication but staff could be busy at times. It went on to say staff had been reminded of the policy on informing relatives of accidents and incidents and was currently contacting all residents’ families every week to update them on the condition of the residents.
21. Ms A contested the responses made by Care UK about the weekly contact and the x-ray. She also complained about Care UK not responding to her complaint within the prescribed timescales. Care UK reiterated the reasoning behind the x-ray and apologised that although it was trying to keep residents’ families updated, it sometimes fell short. In addition, it apologised for not responding within the prescribed timescales but said staff needed to wait for lasting power of attorney paperwork before proceeding.
22. Ms A is still unhappy with the responses and feels the family’s wishes are being overridden when it comes to her mother’s treatment. In addition, the family are worried that this could happen again in the future.

Analysis

23. Regarding the fault in communication and delays in responding to the complaint, the Home and Care UK have outlined the difficulties, taken action and apologised. Whilst it was understandable the family were distressed at a lack of communication, the Home and Care UK have taken sufficient action in response and we would not recommend investigating these matters further.
24. Regarding the decision to send Mrs B for an x-ray, the GP is correct in that she can override these wishes if in a patient’s best interests. The only way to rule out a fractured hip is an x-ray. A fractured hip can be extremely painful and a potentially terminal event if left untreated. Therefore, the GP could override Ms A’s wishes and send Mrs B for an x-ray, weighing up the risks relating to the Covid19 outbreak. The GP sent her to a less busy hospital to mitigate this risk, explained her reasoning to the family and recorded her conversations with Ms C.
25. An investigation by us would be unlikely to uncover any fault in this decision for the reasons I have outlined. As it would not be likely to find fault, it would not be linked to the distress Ms A has suffered. We would also be unlikely to link it to any distress Mrs B suffered as there was no fault in sending her for an x-ray. In addition we could not obtain the outcomes Ms A wants of written assurance that the Home or GP will not override the lasting power of attorney again even if it is in Mrs B’s best interests.
26. I have listened to the recording of the call between the GP and Ms C and not found her to be rude or unprofessional. She explained the reasoning behind her decision making and remained professional throughout the call.
27. Regarding the lack of investigation of the seizure, this is a matter for the hospital that treated Mrs B and would need to be directed to it for a response.
28. The Home has also made the necessary apologies regarding communication and I would not recommend any further action or compensation.

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Final decision

29. We have to be proportionate in what we investigate. In this case there is little evidence of serious fault. Any faults have been addressed adequately by the Home and there is little chance of achieving the outcomes Ms A wants. Therefore, after considering Ms A’s comments and the available evidence, we will not investigate this complaint.

Investigator’s final decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman