Summary: Mrs F complains about the council commissioned care her late father received at Camelot House and Lodge nursing home. Mrs F says poor care at the end of her father’s life caused him pain and discomfort and the family significant distress. The Council has accepted there was fault which caused injustice to Mrs F. It has agreed to make a payment to acknowledge this and make service improvements.

The complaint

1. Mrs F complains on behalf of her late father, Mr J, about the council commissioned care he received at Camelot House and Lodge nursing home, in particular following a choking incident in September 2021. Mrs F says poor care at the end of her father’s life caused him pain and discomfort and the family significant distress.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
4. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

6. (Local Government Act 1974, section 26A(2), as amended)
7. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
8. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

9. I spoke to Mrs F about her complaint and considered the Council’s response to my enquiries.
10. Mrs F and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Fundamental Standards of Care

11. 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 has issued guidance on how to meet the fundamental standards below which care must never fall. It can enforce against breaches of fundamental care standards. The standards include:
• Person-centred care (Regulation 9): The service user must have care or treatment that is tailored and meets their needs and preferences. Providers must involve a person acting on the service user's behalf in the planning of their care and treatment.
• Dignity and respect (Regulation 10): Service users must be treated with dignity and respect and in a caring and compassionate way.
• Safe care and treatment (Regulation 12): Providers must do all that is reasonably practicable to mitigate risks to the service user’s health and safety.

End of life care

12. The National Institute for Health and Care Excellence Quality Standard 13: End of Life Care for Adults is relevant for providers in health and social care settings. It says people approaching the end of life should receive assessments in response to their changing needs and preferences, with the chance to discuss, develop and review a personalised care plan for current and future treatment.
13. Anticipatory (or "just in case") medicines might be prescribed when a person wishes to spend their final days in a care home and it has been agreed that they should do so. They treat symptoms such as pain, nausea and breathlessness and are prescribed so they are available if needed. Morphine sulphate and midazolam are controlled drugs under the Misuse of Drugs Act 1971. They must be administered by a registered nurse.

What happened

14. Mr J had dementia and was in his 80s. In August 2021 he was placed in Camelot House and Lodge nursing home by the Council, which partly funded his care. Mr J’s end of life care plan said he should not go back to hospital unless his pain control could not be managed. He was on a soft diet but had normal fluids. His care plan said he had had episodes of coughing during and after meals, so should be supported by staff and needed to be assessed by a speech and language therapist (SALT).
15. In September, Mr J had an episode of coughing and shortness of breath after eating. He was referred for a SALT assessment the next day and some of his food was prepared to a soft texture. The SALT spoke to staff on the phone on 14 September. She recommended slightly thick (level 1) fluids and a minced diet and would arrange an appointment to assess Mr J’s swallow. The meals chart does not show that Mr J’s meals were minced after this.
16. The nurse found that Mr J sounded chesty so the GP was contacted. Mr J was prescribed antibiotics for a possible chest infection and given an inhaler. It was thought his condition may have been caused by the earlier coughing episode.
17. On 16 September Mr J’s condition deteriorated. The care notes say Mr J was wheezy and his oxygen levels were 88%. The Home contacted the GP, Mrs J and Mrs F who visited. She says she found Mr J alone, lying on his back, with his arms flailing, unable to breathe and very scared and distressed. She called for emergency assistance. A carer gave Mrs F a thickened drink in a beaker to give to Mr J. Mrs F tried to give the drink to ger father but the liquid flowed too quickly and he choked. Mrs F says he turned purple and was unable to breathe.
18. Mr J continued to be distressed throughout the afternoon. Staff suggested he should go to hospital but this was not in his plan. The GP had not responded by 6pm so the Home contacted an out of hours GP. The GP then called back and prescribed just in case pain relief medicines. These were started just before 10pm.
19. The nurse saw Mr J the next day and found him to be very ill, chesty and in pain. Mrs F says her brother spent that night with Mr J; he was very agitated, with difficulty breathing and further pain relief was sought.
20. Mrs F visited and found Mr J’s mouth was white and looking ulcerated. Although medication was being given, Mr J remained agitated and distressed. A nurse gave mouth care the next day which helped Mr J to settle.
21. Mrs F says that during the night her father was struggling to breathe due to secretions. An aspiration machine was requested but was not brought for some time. Mr J sadly died a short time later. Mrs F says a member of staff then came into the room but did not speak to the family, which was inappropriate at that time.

Mrs F’s complaint

22. Mrs F complained to the Home about the care her father had received. She said her father’s death was horrific and asked whether a syringe driver should have been used and why the aspiration machine had not been available. Mrs F considered Mr J had effectively choked to death on his secretions. She also raised other issues including his wheelchair being too small, visitors wrongly entering Mr J’s room and lack of engagement by carers.
23. The Home replied on 19 November and on 16 December to a follow up letter from Mrs F. It apologised for what had happened and acknowledged this had been very distressing. In summary, the Home said:
• Mr J had been discharged by the physiotherapist and his mobility assessment had not recommended leg raisers for the wheelchair, though these would normally be used.
• A carer should have given Mr J the drink on 16 September; the beaker was used to prevent spillage but staff had been reminded not to use them with thickened fluids.
• Mr J’s mouth care should have been given to a higher standard. All staff had been retrained in oral care.
• Staff had suggested Mr J go to hospital to manage his symptoms only; this should have been more clearly explained at the time.
• If a syringe driver had been prescribed one could have been obtained. The nurses administered pain relief using their clinical judgment.
• It was unclear why the aspiration machine had not been available immediately; staff had been reminded where it was kept.
• Agency staff had been reminded to engage with residents and families.

My findings

24. Mr J had an end-of-life care plan in line with the standards and I am satisfied that staff acted in line with Regulation 12 by seeking timely support from the GP when he showed signs of a chest infection on 14 September.
25. However, the Home has already accepted that there were incidents of poor care, in particular poor mouth care, Mr J’s choking on 16 September and the lack of an aspiration machine in the hours before he died. These are fault and potentially breaches of the fundamental standards. The Ombudsman cannot make a finding on Mr J’s cause of death but these incidents clearly caused significant distress to Mr J, Mrs F and the family.
26. Mrs F says the use of a beaker may have been causing her father to choke rather than a deterioration in his health and that two coughing incidents do not appear to be enough to initiate end of life medicines. The anticipatory medicines were prescribed by a GP; the Ombudsman cannot investigate GPs or question the clinical judgment of health professionals.
27. I have reviewed the care and medication records and can see that the nurses administered pain relief as they considered necessary, as prescribed. I understand why Mrs F considers a syringe driver should have been used, but the GP had not prescribed this. As such, whilst acknowledging how distressing it must have been to see Mr J in pain, I cannot find the Home at fault for not using one.
28. The Home has already apologised and has put measures in place to prevent future similar problems. However, I consider the Council should do more to remedy the injustice caused to Mrs F and the family.
29. When we have evidence of fault causing injustice we will seek a remedy for that injustice which aims to put the complainant back in the position they would have been in if nothing had gone wrong. When this is not possible, we will normally consider asking for a symbolic payment to acknowledge the avoidable distress caused.
30. Where someone has died, we will not normally seek a remedy for injustice caused to that person in the same way as we might for someone who is still living. We would not expect a public or private body to make a payment to someone’s estate. Therefore, if the impact of a fault was on someone who has died, we will not recommend an organisation make a payment as the person who received the poor care cannot benefit from such a payment. However, if we consider the person who has complained to us has been adversely affected by seeing the impact of that poor care on their relative, we may recommend a symbolic payment to them as a remedy for their own distress. The Ombudsman’s guidance says a remedy for distress is usually a moderate sum up to £300.
31. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the care provider, I have made recommendations to the Council.

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Agreed action

32. Within a month of my final decision, the Council has agreed to:
• Apologise to Mrs F and pay her £300 to acknowledge the distress caused by fault.
• Ensure the Home has a procedure setting out when an aspiration machine may be required and how one would be obtained if the Home’s is unavailable.
• Remind the Home’s carers, including agency staff, of the guidance on thickened fluids and soft diets; giving training as necessary.

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Final decision

33. There was fault by the Council. The actions the Council has agreed to take remedy the injustice caused. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman