Summary: Mrs D complains about her father-in-law, Mr E’s discharge planning by the Council and subsequent care in a nursing home and a hospital. We found fault with some aspects of Mr E’s care and have made recommendations to the Council and Home to improve their services. We did not find fault with the Hospital.

The complaint

1. Mrs D has complained about Swindon Borough Council (the Council), Great Western Hospitals NHS Foundation Trust (the Trust) and Cheriton Nursing Home (the Home) in relation to her father-in-law, Mr E’s hospital discharge in November 2018 and subsequent care at the Home and at Great Western Hospital before his death in July 2019.
2. Mr E’s placement at the Home was paid for initially by the NHS for 12 weeks, then by a combination of his client contribution, Council funding and the NHS.
3. Specifically, Mrs D complains the Council arranged a discharge to an unsuitable nursing home. She also complained the Council’s social work team did not follow Mr E up and the Council handled the complaint badly.
4. Mrs D has also complained the Home and Council did not provide any rehabilitation for Mr E, so he never returned home as originally planned.
5. In addition, Mrs D says the Home kept Mr E in a locked ward so he felt like a prisoner. Furthermore, Mrs D complained the Home did not carry out regular observations and checks on Mr E in the period leading up to his admission to hospital in July 2019.
6. Mrs D also has reservations about how the Trust treated Mr E for pneumonia as this cause of death only became known after a post-mortem. In addition, she says the Trust did not follow the NICE pathway for a suspected kidney injury.
7. Mrs D said Mr E had to stay in the Home for months due to a lack of rehabilitation which meant he had to pay for his stay which put financial strain on his wife, Mrs E. In addition, he missed out on spending time with his family. Mrs D says the failings in complaint handling caused her distress and took time away from caring for her new-born son. Regarding Mr E’s final days, Mrs D is uncertain about whether he was cared for appropriately by both the Home and the Trust.
8. As an outcome of the complaint Mrs D would like a financial remedy from the organisations involved. She would also like an apology and service improvements to prevent this happening to other patients.

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The Ombudsmen’s role and powers

9. 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)
10. 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).
11. 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.
12. 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)
13. Under our information sharing agreement, we will share our final decision with the Care Quality Commission (CQC).

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How I considered this complaint

14. During my investigation I have considered evidence from the Home, Council, Trust, Mrs D and an independent clinical adviser. I received comments from Mrs D on my draft decision before making this final decision.

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What I found

Background

15. In 2018, Mr E was in his 60s and suffered from early onset dementia. He also had a high body mass index (BMI) meaning he was overweight and suffered from breathing difficulties. He was looked after at home by Mrs E.
16. In October 2018 he was discharged from a hospital stay to the Home. He resided there until July 2019 when he became unwell and was hospitalised but sadly died the next day.
17. Mrs D made a complaint in 2019 and attended meetings with the Home to try and resolve matters. The Council also investigated the complaint before Mrs D approached the Ombudsmen in late 2019. We asked that the Council respond further and for the Trust to provide a response to the issues she had raised about Mr E’s hospital care. They responded in 2020 and Mrs D brought her complaint back to the Ombudsmen.

Choice of Home and lack of rehabilitation and follow up

18. Mrs D said the Council told the family Mr E would be discharged to the Home as a community care provider was not willing to provide him with care at home and he needed equipment to assist him in his rehabilitation, aid his weight loss and improve mobility. Mrs D said the Council told the family Mr E would undergo rehabilitation for a maximum of 12 weeks and then return home with a care package.
19. Mrs D said the Home provided no rehabilitation and the Council never followed his case up despite requests from the family for it to review Mr E. Mrs D felt the Home was not meeting Mr E’s needs and he would be better at home with his family. Instead, he stayed for months in the Home, incurring fees, and separated from his family.
20. The Council has told the Ombudsmen the aim of Mr E’s discharge plan was to undergo assessment in a Discharge to Assess Nursing Bed (DTA). DTA is for patients who are in hospital and who have stabilised enough to be placed in a different setting to be assessed for their longer-term needs and goals. The NHS funds the placement which meets the patient’s care needs.
21. The guidance for DTA (Quick Guide – Discharge to Assess, NHS and Department of Health) says people and families should be at the centre of decisions and those arranging the DTA should ensure the family or patient or both are given clear information about what will happen on discharge. Staff should ensure assessment of long term care needs in the DTA placement when the actual level of care can be more accurately assessed and develop proactive care plans to mitigate the risk of crisis.
22. The Council explained the purpose of the DTA bed was to support a further period of assessment of both Mr and Mrs E’s needs outside of the acute hospital setting and to assess and support Mr E with his accommodation requirements.
23. The Council said the Home visited Mr E in hospital and confirmed it could meet his needs and the family agreed with the placement. The Council went on to say that Mr E required equipment to provide safe care due to his weight issues. The Council could not provide these in his home. It also said the NHS funded the placement at the Home for 12 weeks and after this stage it decided his stay would be long term.
24. The Council said the DTA referral form showed the goals which care staff were to support Mr E with. It did not offer a package of rehabilitation to Mr E during his DTA period as he was not deemed to have any rehabilitation potential.
25. I have seen evidence surrounding Mr E’s discharge and his transfer to the Home. This includes his discharge summary and assessments relating to his activities at the Home. There is no mention of a rehabilitation programme in any of these documents. Nor is there a mention of a therapist needed to improve his capabilities, including his mobility. This supports the Council’s account that Mr E was not suitable for rehabilitation by a therapist.
26. There is a goal outlined of Mr E increasing his stamina and exercise tolerance so he can return to only needing one person to assist him and the hope he could return home. There is evidence in Mr E’s care plans from his stay that his mobility and skin conditions improved during his stay and he took a visit to his home on a weekend shortly before his death.
27. I have not seen evidence the DTA placement was explained to the family. This led to different expectations on their part about when Mr E could come home and distress and frustration for Mrs D when he did not return home within the 12 weeks. The Council has accepted a lack of communication, apologised, and has also put in place a specific pathway for DTA which involves information for families about the process and placement. This is a satisfactory response to the fault in communication and I do not propose to recommend any further action on this aspect of the complaint.
28. Regarding the lack of follow up, the Council said Mr E was discharged 8 November 2018 and visited by the Social Care Team on 26 November when it held a review meeting with family members. I do not consider this a lengthy delay.
29. The Home said Mr E’s condition greatly improved during his stay. His skin condition improved, he lost weight and his mobility improved to the extent he could sometimes walk unaided. This was from having been only able to mobilise with the use of a zimmer frame or wheelchair.
30. I have not found fault with the process of choosing the Home. There is evidence the Home could meet his needs. The evidence also shows Mr E’s condition improved to the point where returning home was a possibility before his sad death. In addition, Mr E had capacity at the time of his discharge and the decision was made in consultation with him and his the family.

Isolation in the Home

31. Mrs D complained Mr E was left isolated in a locked part of the Home with a coded keypad which neither he nor his family knew the code to. She said he repeatedly said he felt like a prisoner in his room.
32. The Home said Mr E’s room was near the staff room with staff often stopping to chat to him through his open door. The Home said he was friendly and enjoyed conversing with staff rather than interacting with other residents some of whom were significantly older than him.
33. Government guidance (Deprivation of Liberty Safeguards (DoLS) Code of Practice) indicates where the resident may be being deprived of their liberty, the managing authority has responsibility for applying for an authorisation of the deprivation. The managing authority should apply to the supervisory body for the area in which the person is ordinarily resident. In this case the managing authority was the Home, and the supervisory body was the Council.
34. A person can only be lawfully deprived of their liberty if:
• it is in their best interest to protect them from harm;
• it is a proportionate response to the likelihood and seriousness of the harm; and
• there is no less restrictive alternative.
35. The Mental Capacity Act does not include a definition of what constitutes a deprivation of liberty. However, a judgement in the Supreme Court (P v Cheshire West and Chester Council [2014] UKSC 19) clarified that there is a deprivation of liberty for the purposes of Article 5 of the European Convention on Human Rights in the following circumstances:

"The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these agreements."

36. Mr E could not remember or was not told the code for the locked door and had no other means of leaving the Home, therefore under this definition Mr E was deprived of his liberty.
37. The Home applied in January 2019 to the Council for a DoLS assessment but never received one. The Council commenced its process in July 2019, but Mr E sadly died before it was completed.
38. The Supreme Court case mentioned above led to a significant increase in DoLS applications to councils throughout England. The Council in this case referenced this backlog as part of the reason for the delay. However, the standard time for this to be dealt with was 21 days and it took six months, so this was still a fault on the part of the Council even when considering the backlog.
39. However, I have seen evidence Mr E was visited nearly every day by his wife who took him out to the garden and he could also access outside areas with assistance from staff. In addition, there is no evidence of Mr E or his family raising concerns during his stay of him being socially isolated or deprived of his liberty. Therefore, although there was fault in the delay of the DoLs decision, I do not find that Mr E was socially isolated due to this fault even though he was deprived of his liberty.
40. However, whilst there was no specific injustice to Mr E, the long systemic delays in the Council dealing with DoLS could be having an impact on many other residents and patients in this geographical area.

Observations

41. Between 0630 and 0700 on the day before Mr E passed away, A nurse at the Home found him in bed only slightly responsive and called an ambulance which took him to hospital.
42. Mrs D disagrees with the Home’s assertion that in the period leading up to Mr E’s hospitalisation staff were carrying out hourly observations. She said the Home failed to document these observations and after requesting to see the electronic care records on several occasions these were not provided. The Council only provided a timeline of events that showed minimal documentation of observations and was mainly based on staff statements.
43. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2010 sets out the requirements for safety and quality in care provision. The Care Quality Commission (CQC) has issued ‘Essential Standards of Quality and Safety’ as guidance on the outcomes adult social care providers should achieve.
44. The Essential Standards contain outcomes for each regulation. These outcomes detail what providers should be doing to meet the requirements of each Regulation.
45. Regulation 17 deals with record keeping and states that organisations such as the Home should:

‘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 user and of decisions taken in relation to the care and treatment provided;’

46. Mr E’s care plans stated that due to breathing issues he should be checked regularly at night.
47. The Home said staff closely observed Mr E due to his location near the staff room and linen cupboard and has provided a timeline to back up its version of events. However, many of the entries rely on staff statements and not the records. The last entry in the records before Mr E being found slightly responsive is at 0323. It states Mr E was comfortable, had been given medication and was ‘checked during the night’.
48. A carer statement outlines regular checks they made on Mr E throughout the night until Mr E was found unresponsive at around 0630 by the nurse.
49. The next entry in the records is at 0858 after the ambulance took Mr E away and describes how he was found and transported to the ambulance.
50. Taking this into account, there is little evidence in the records staff were monitoring Mr E’s regularly during the night he became ill. This was fault in not recording when Mr E was checked.
51. This fault has left the family uncertainty in not knowing if Mr E was unwell from 0323 until he was found around 0630. However, there is evidence from staff statements taken shortly after the event that they were checking him regularly when carers passed his room while undertaking other duties.
52. Taking this into account, there is insufficient evidence that the lack of recording meant he was not checked, and this led to a delay in his treatment which led to his death. However, the lack of recording has caused the family uncertainty about whether staff properly monitored Mr E in this three-hour period. The Home, as part if its complaint response, informed the family that it had improved its practices as a result of the case and that recording of observations and wellbeing checks had improved. It said it had a meeting and reminded all staff on the need to clearly document all wellbeing checks and interactions in delivery of care and support.
53. While the Home has taken some steps to remedy the impact of its failings, I consider there is still an outstanding injustice to the family. I have set out my additional recommendations later in this statement.

Complaint handling

54. Mrs D made a complaint to the Home and contacted the Council in August 2019. She has complained about delays in the complaints process which led to frustration for her while looking after her new-born baby.
55. The Council apologised in September 2019 for a delay in responding to her complaint. At this stage the Home was still investigating the case after having had a meeting with Mrs D in August 2019. The Council arranged a meeting with Mrs D which took place in November 2019. It arranged a site monitoring visit to the Home in December 2019 and Mrs D approached the Ombudsmen that same month.
56. I have not found any excessive delays in the complaint process for Mrs D. There was some confusion as the Home was investigating at the same time as the Council was involved. However, Mrs D had complaint meetings and there were satisfactory attempts by both the Home and Council to address her issues and resolve the complaint before she approached the Ombudsmen. Therefore, I do not find fault with the complaint handling in this case.

Care in hospital

57. Mrs D told the Ombudsmen the Trust said Mr E had died of sepsis. However, Mrs D said two doctors disagreed on the cause of death. The coroner ordered a post-mortem which said the cause of death was pneumonia. Mrs D queried why Mr E was not given care for pneumonia but rather treated for sepsis. In addition, she said the Trust did not follow the correct pathways on acute kidney injuries when treating Mr E.
58. The Trust said Mr E arrived at the Emergency Department at 0844. He was unresponsive on arrival and was extremely unwell with evidence of sepsis including low blood pressure, acidosis (increased acidity in his blood and other body tissues) and kidney failure. He was examined at 1130 by a doctor who then informed the family he was unlikely to survive. He was seen by another doctor at 1300 and during a further discussion with the family the doctor confirmed they suspected Mr E had aspiration pneumonia and antibiotics had started.
59. The Trust explained if a patient is drowsy or especially unresponsive, the chances of aspirating (choking on your stomach contents) are high as the patient is not able to protect their airway. Aspiration pneumonia is therefore almost always considered in this instance. The antibiotic given was Tazocin which is a very broad spectrum drug used in cases of sepsis and pneumonia.
60. The Trust said at 1550 Mr E was reviewed by a consultant who had a discussion with Mr E’s family explaining probable aspiration pneumonia leading to kidney damage.
61. The doctor told the family Mr E was coming towards the end of his life and he sadly died the next morning.
62. From the evidence we have seen and having taken clinical advice on this matter the Trust followed the NICE Quality standard for acute kidney injury within the time frame required. The pathway is very similar to that for sepsis which it confirmed Mr E had early in his admission.
63. Regarding the treatment for pneumonia and sepsis, pneumonia treatment would be with antibiotics and can sometimes be done as an outpatient whilst sepsis is an acute medical emergency. Essentially sepsis is a stage of an infection which could begin with pneumonia. Therefore, the treatment of sepsis would include treatment of pneumonia along with other components.
64. Taking this into account I have not found fault in Mr E’s hospital treatment. He was found to have sepsis very early in his admission and was put on the correct treatment but was unfortunately very ill and came to the end of his life.

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Recommendations

65. Although the Home has said it has improved its recording of observations, Mrs D is still left with uncertainty over whether Mr E was checked and has not seen evidence of these improvements. Therefore, I propose to recommend that by 24 November 2021 the Home:
• writes to Mrs D acknowledging and apologising for the uncertainty caused by the failures in record keeping; and
• provides Mrs D with evidence of the improvements made to record keeping and compliance with these improvements.
66. In addition, due to the systemic failings in DoLS assessment delays, the Council should by 28 January 2022:
• Produce an action plan to address the delays in carrying out DoLS assessments with detail about how these changes will be audited and monitored
67. The Home and the Council should provide evidence to the Ombudsmen of how they have completed these recommendations.

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Final decision

68. I found fault with the Home in relation to observation recording and the Council with how it handled the DoLS application. I do not find fault with the Trust.

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Investigator's decision on behalf of the Ombudsman