Summary: Bentley Medical Practice most likely did not refer Mrs Y for fast-track continuing healthcare at the end of her life. Also, Shoreline Nursing Home’s record keeping was not in line with the relevant guidance. We do not know if Mrs Y would have been more comfortable before she died if not for that fault. Those organisations should take action to remedy the uncertainty that caused Mrs Y’s granddaughter, Mrs X.

The complaint

1. Mrs X complains on behalf of her grandmother, Mrs Y about Shoreline Nursing Home (the Care Provider - owned by Hornby Healthcare Limited), Bentley Medical Practice (the Practice) and NHS North East and North Cumbria Integrated Care Board (the ICB).
2. Mrs X says the Care Provider should have increased Mrs Y’s care and support on 21 March 2022 following her deterioration. Had nursing support been in place sooner, Mrs Y would most likely not have suffered in pain at the end of her life.
3. Mrs X says miscommunication between the Care Provider, Practice and ICB about a fast-track continuing healthcare referral on 24 March 2022, meant Mrs Y suffered unnecessary pain towards the end of her life.
4. Mrs X says events caused the family distress at witnessing Mrs Y in pain. She would like the organisations to improve their processes to ensure similar fault does not happen to others.

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The Ombudsmen’s role and powers

5. The Local Government and Social Care Ombudsman investigates complaints about adult social care providers. We decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. Where something has gone wrong we refer to those actions as ‘fault’. (Local Government Act 1974, sections 34B, and 34C, as amended)
6. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services. If there has been fault, the Health Service Ombudsman considers whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1))
7. If the actions of a health and social care provider have caused injustice, the Ombudsmen 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.
8. 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. 
9. 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

10. I considered the information Mrs X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
11. Mrs X and the organisations had an opportunity to comment on my draft decision. I have considered their comments before making my final decision.

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What I found

Key legislation

Care providers

12. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards which care must never fall below.
13. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The CQC has issued guidance on how to meet the fundamental standards which care must never fall below. Specifically, Regulation 17: Good Governance users’ states that service records must be “complete, legible, indelible, accurate and up to date…”.
14. The Medication Administration Record (MAR) sheet lists a patient’s medication, the quantity of tablets received, the dose, frequency and time of administration over a four-week period. The pharmacy or GP surgeries usually print the MAR. Home staff sign it acknowledge receipt of medication, to record when they administer it or to record if, for any reason, it is not given.

NHS Continuing Healthcare

15. Continuing Healthcare (CHC) is a package of ongoing care that is arrnaged and funded by the NHS where a person has been assess as having a ‘primary health need’.
16. The Department of Health and Social Care’s National Framework for NHS Continuing Healthcare and NHS funded Nursing Care (July 2022 (Revised)) (the National Framework) is the key guidance about CHC. It states that where an individual is eligible for CHC funding the ICB is responsible for care planning, commissioning services and case management.
17. The National Framework says people with a rapidly deteriorating condition who may be nearing the end of their life may require ‘fast-tracking’ for immediate CHC. It is the responsibility of the appropriate clinician to decide if someone meets the criteria for fast-track CHC, and to make that referral. The ICB should respond promptly to ensure the appropriate funding and arrangements are in place without delay. It should not take longer than 48 hours from receipt of the completed fast-track referral.

Background

18. The Care Provider provided residential care to Mrs Y.
19. On 21 March, the Care Provider asked the Practice to review Mrs Y, who had recently suffered a chest infection. She was not eating, drinking and more sleepy.
20. GP 1 reviewed Mrs Y the same day. The GP noted Mrs Y was very frail. It took some blood tests and asked the Care Provider to monitor her fluids and continue antibiotics. The GP spoke to Mrs Y’s daughter (Mrs X’s mother) who felt Mrs Y was not generally deteriorating, as she was well two weeks earlier. Mrs Y’s daughter asked the GP to actively treat Mrs Y.
21. Later that day, the GP spoke to Mrs Y’s son (Mrs X’s uncle). The GP noted: “explained all symptoms. [Mrs Y’s son] happy for care home treatment. If worse may admit [to hospital]. Family will discuss. Explained [Mrs Y] very frail and may pass away anytime and it wont be a surprise”.
22. On 24 March, the Care Provider asked the Practice to consider making a fast‑track CHC referral. She was not responding to antibiotics.
23. At 11.30am, GP 2 virtually reviewed Mrs Y. The GP noted Mrs Y had tested positive for COVID-19 and was worsening. They decided the Care Provider needed to discuss end of life care with the family before the Practice prescribed anticipatory medication. Those are medications prescribed to control people’s symptoms at the end of their life.
24. Around 12.30pm, the Care Provider told the Practice the family agreed Mrs Y should start to receive end of life care. GP 2 prescribed anticipatory medication then, which the Care Provider collected and kept on site. GP 2 also said they made the fast-track CHC referral and told the District Nurses (not subject to this investigation) about Mrs Y’s condition.
25. At 4pm, the Care Provider and Mrs Y’s family asked the Practice to review Mrs Y. GP 3 visited Mrs Y. They noted Mrs Y looked extremely frail and was not taking fluids. But she was not in distress. The GP also told Mrs Y’s daughter that Mrs Y should be kept comfortable, and explained what anticipatory medication were for.
26. The Care Provider reviewed Mrs Y once an hour from 4.30pm. Staff did not record that she was in pain.
27. Mrs X said that evening Mrs Y became increasingly breathless and agitated with more secretions (gurgling and rattling noises during breathing). At 9.20pm, the Care Provider called the District Nurses to provide end of life support. The District Nurses arrived 20 minutes later and administered a sedative to manage Mrs Y’s agitation.
28. At 10.35pm, the Care Provider called the District Nurses again. The sedative had not settled Mrs Y and she needed more support. Before the District Nurse arrived (at 11.30pm), Mrs Y had died.

My findings

The care and support on 21 March 2022

29. Mrs X says that following GP 1’s review on 21 March, the Care Provider should have moved Mrs Y from residential care to nursing care. Her care needs had significantly increased.
30. I have reviewed the Care Provider’s daily records. I consider between 21 and 24 March 2022, the Care Provider appropriately supported Mrs Y’s care needs. I accept Mrs Y’s condition was worsening. But I am not persuaded the Care Provider missed an opportunity to provide additional support from a registered nurse. While the Care Provider did not formally register Mrs Y as a nursing care resident, a registered nurse still had daily oversight of Mrs Y. Those nurses did not record any concerns or gaps in her care.
31. Overall, I am not persuaded the Care Provider missed an opportunity to provide further nursing care and support to Mrs Y.
32. In this case, the decision to escalate Mrs Y to nursing care was related to her need for anticipatory medication. That happened on 24 March, when all parties agreed she should receive those. I will consider this further in the next section.

The care and support on 24 March 2022

33. Firstly, I will consider the fast-track CHC referral.
34. If Mrs Y received CHC funding, the Care Provider would have been able to administer the anticipatory medication. If not, then District Nurses would need to administer those medications when required.
35. In response to Mrs X’s complaint, the Practice told her it made the fast-track CHC referral on 24 March 2022. However, it could not find evidence of it. That may have been because GP 2 was working remotely, and the referral form was not saved on to their system.
36. When the District Nurse visited Mrs Y on 24 March, they noted Mrs X told them: “Family not happy as they received a phone call from CHC at 3pm to say fast track funding has been approved…”. The Practice say this showed they made the fast-track CHC referral earlier that day. However, I do not agree. Mrs X categorically denies saying that to the District Nurse. She told me no one from the CHC Team called her or anyone in her family about CHC funding. I consider that was in line with the Care Provider’s statement that the CHC Team did not call them either (which I would have expected). Also, the ICB told me it never received any fast-track CHC referral for Mrs Y and was not aware of her. I consider the District Nurse most likely misunderstood Mrs X during a discussion about the fast-track CHC referral.
37. So, weighing up the evidence, I consider on the balance of probabilities, the Practice did not make the fast-track CHC referral. That was fault. GP 2 should have made the fast-track CHC referral at 12.30pm, when everyone agreed Mrs Y was for end of life support. Mrs Y died at around 11.30pm. So that did not leave much time for the ICB to decide if Mrs Y should receive CHC funding and support.
38. The National Framework says ICBs should decide eligibility for fast‑track CHC referral ‘promptly’. I cannot say, even of the balance of probabilities, if the CHC Team would have decided Mrs Y’s referral before she died. In any event, the National Framework is clear that waiting for a CHC funding decision should not impact the care and support someone receives. We know the Practice most likely did not make the fast-track CHC referral, but all parties were under the impression it had done. I have not found fault with the ICB.
39. Now I will consider the care and support Mrs Y received before she died.
40. At 4pm on 24 March, the Practice told District Nurses it had administered anticipatory medications. That was good practice while the CHC Team were (supposedly) deciding the fast-track CHC referral. The Practice and the Care Provider both agree the Care Provider was responsible for requesting District Nurses to administer those medications when required.
41. The Care Provider said Mrs Y did not suffer pain unnecessary pain on 24 March.
42. I have reviewed the MAR sheet for that day which showed the Care Provider last provided oral paracetamol and codeine at 4pm. Mrs Y would not have been able to receive more pain relief until 8pm (recommended four hours between doses).
43. The Care Provider’s daily record showed it reviewed Mrs Y at 4.30pm, 5.30pm and 6.10pm. Staff did not record concerns that she was in pain or agitated. But there is a gap in the daily record until 9.40pm (when staff requested the District Nurse to review Mrs Y). When the District Nurse arrived, they administered a sedative, rather than pain relief such as morphine (which had been prescribed to Mrs Y). The meant, Mrs Y was most likely not in pain then. However, I agree that from 6.10pm onwards, Mrs Y was most likely agitated. We know that sedative did not settle her, as staff asked the District Nurse to administer more later. So, I am not persuaded Mrs Y suffered in pain before she died. But she was not comfortable.
44. Mrs X told me Mrs Y was agitated all evening on 24 March. The Care Provider’s lack of record keeping after 6.10pm means I cannot say, on the balance of probabilities, if it missed an opportunity to refer Mrs Y to the District Nurses sooner. That was fault and not in line with Regulation 17 of the Fundamental Standards.

The injustice Mrs X suffered

45. I consider the Practice should have made the fast-track CHC referral on 24 March 2022. I cannot say if CHC funding would have been agreed before Mrs Y started to suffer agitation that evening. If it had, the Care Provider may have been able to better manage Mrs Y’s agitation, rather than rely on District Nurses. That fault has no doubt has caused Mrs X uncertainty.
46. The Practice told Mrs X the fast-track CHC referral process is now more robust. It saves referrals to the patient record directly. I am satisfied that new process will reduce the chance of similar fault happening to others. However, the Practice should still take action to remedy the injustice Mrs X suffered.
47. Also, I consider the Care Provider’s poor record keeping means I cannot say if staff missed the opportunity to refer Mrs Y to District Nurses sooner. That has also caused Mrs X uncertainty at not knowing if Mrs Y’s agitation could have been managed better.
48. The Care Provider told me that during shifts, staff would write paper notes of each resident. At the end of their shift, they would write up those notes into the electronic record. That most likely explained the delay writing notes for Mrs Y on the evening of 24 March 2022. I understand that would have been convenient for staff. However, I consider the Care Provider needs to take action to remedy the injustice to Mrs X and potentially to others.

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Agreed actions

49. Within four weeks of this decision, the Practice and Care Provider should each apologise to Mrs X and pay her £200 to remedy the uncertainty their respective faults have caused her.
50. Within eight weeks of this decision, the Care Provider should carry out a review of the way it uses its recording system to ensure it makes accurate and timely records, in line with Regulation 17 of the Fundamental Standards.
51. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

52. I have not found the Care Provider missed an opportunity to provide nursing care to Mrs Y sooner than 24 March 2022. But the Practice and Care Provider both acted with fault before Mrs Y died. That has caused Mrs X uncertainty at not knowing if Mrs Y would have received different support for her agitation.
53. Under our information sharing agreement, we will share a copy of this decision with the Care Quality Commission.

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Investigator's decision on behalf of the Ombudsman