Summary: The late Mrs M’s family complained to us about her care by Mid and South Essex NHS Foundation Trust and Godden Lodge Care Home. We have upheld parts of the complaint relating to record keeping, admission to the Home, nutrition, risk management and communication. We have not upheld other parts of the complaint. The Council, Home and Trust have accepted our recommendations so we have completed our investigation.

The complaint

1. Mrs K complains on behalf of herself, her husband Mr K and their daughter, about matters affecting Mr K’s late mother, Mrs M.
2. Mrs K complains about the actions of Essex County Council (the Council), Mid and South Essex NHS Foundation Trust (the Trust) and Godden Lodge Care Home (the Home). She complains that:
1. between 30 September and 8 October 2020, inadequate care at the Trust’s Basildon Hospital led to Mrs M suffering significant weight loss;
2. the Trust’s communication with Mrs M’s family was poor. This includes communication about Mrs M’s diabetes and her experiencing a hypoglycaemic (low blood sugar) episode;
3. Mrs M was wrongly discharged from hospital to the Home, despite the Home having an inadequate Care Quality Commission (CQC) rating and being unable to meet Mrs M’s needs. Mrs M’s family were not told of the inadequate rating and had no choice in her discharge destination;
4. Godden Lodge provided poor care, including around nutrition, hydration and mitigating the risk of choking and aspiration;
5. Godden Lodge delayed seeking medical help including calling an ambulance; and
6. Godden Lodge’s communication with Mrs M’s family was poor.
3. Mrs K believes Mrs M’s death in December 2020 was premature and that she may have lived longer, if she had received better care and more prompt medical intervention. The complainants are distressed that Mrs M’s end of life wishes, to spend her last days and hours at home, could not be met. The complainants are all distressed by what happened. Mr K’s distress is particularly severe because he witnessed his mother’s pain and distress.
4. The complainants would like:
• meaningful individualised apologies and financial redress; and
• for the organisations to put service improvements in place so similar problems do not affect others.

Back to top

The Ombudsmen’s role and powers

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 may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, section 26A(1) and 26A(2), as amended) 
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)
10. 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.

Back to top

How I considered this complaint

11. I have considered:
• information Mrs K provided in writing and by telephone;
• written information provided by the Council, Trust and Home. This includes records relating to Mrs M’s care and treatment in hospital and the Home; and
• relevant law and guidance which I have referred to in the body of this statement where appropriate.
12. Mrs K, the Council, Trust and Home have had an opportunity to comment on a draft version of this decision. I took all the comments they made into account before reaching a final decision.

Back to top

What I found

Background summary

13. Mrs M had dementia and lived with her family. She went into the Trust’s Basildon Hospital on 30 September 2020 following a fall. She was discharged to the Home on 8 October 2020. Her care at the Home was funded partly by the Council and partly by the NHS. Because of these funding arrangements, the Ombudsmen consider the Home acted on behalf of both the NHS and the Council. Mrs M’s condition worsened in December 2020. The Home asked Mr K to visit and called an ambulance. Paramedics attended and told Mr K that Mrs M had a chest infection. Mrs M was readmitted to hospital, where she died a few days later.

A – Care in hospital between 30 September and 8 October 2020

14. Mrs K complains that Mrs M’s care at hospital was flawed and led to a significant weight loss, from 45 kg on 1 October, to 35.1 kg on 8 October.
15. The Trust says:
• during an earlier hospital stay, Mrs M’s weight was 37.4 kg;
• it did not weigh Mrs M during the hospital stay of 30 September to 8 October 2020 because she refused to be weighed;
• instead, a dietitian estimated Mrs M’s weight to be 37 kg on 1 October 2020. On the same day, nurses estimated her weight to be 45 kg;
• its plan was to give Mrs M nutritional supplement drinks together with high energy and protein food, as well as supporting and encouraging her to eat;
• it monitored and recorded Mrs M’s food intake;
• despite active encouragement, Mrs M continued to have a poor appetite and would often refuse food; and
• it would have been inappropriate to insert a nasogastric feeding tube, as the risks would outweigh the benefit. A nasogastric feeding tube is a narrow tube placed through the nose and into the stomach, used to give liquid food directly into the stomach.
16. While Mrs M was in hospital, records indicate the Trust did the following:
• carried out investigations including blood tests and scans;
• assessed Mrs M’s risk of malnutrition using the estimated weight of 45 kg;
• concluded Mrs M was at high risk of malnutrition;
• ensured Mrs M was assessed by a dietitian and occupational therapist (OT);
• kept records of Mrs M’s eating and drinking;
• gave Mrs M her regular medication, intravenous fluids and medication prescribed in hospital;
• observed Mrs M’s vital signs;
• gave Mrs M personal care;
• noted Mrs M had an episode of low blood sugar and treated this with a gel which provides an instant sugar boost; and
• monitored Mrs M’s blood sugar levels at regular intervals for the next four days and found no further low blood sugar episodes.
17. There are enough records of sufficient quality for me to conclude that it is more likely than not that there was no fault in the way the Trust dealt with Mrs M’s eating and drinking. Mrs M was known to the Trust’s dietitians, who had weighed her during a previous hospital stay. I therefore consider it more likely than not that the dietitian’s estimate that Mrs M weighed 37 kg on 1 October 2020 was closer to Mrs M’s actual weight than the nurses’ estimate of 45 kg. While it is possible that Mrs M may have lost some weight in hospital, it is unlikely this was as much as the nearly 10 kg the nurses’ estimate would indicate.
18. However, some of the records:
• are incomplete and do not match other records that refer to the same information;
• contain multiple entries all made at the same time, rather than at different times during the day when Mrs M actually ate or drank; and
• were not reviewed by a nurse.
19. Based on this, I consider there was fault in the Trust’s record keeping. I cannot say, even on balance of probabilities, that fault in record keeping caused Mrs M an injustice. However, it has added to the family’s uncertainty about Mrs M’s care while in hospital. This is an injustice to Mrs M’s family. I have recommended a remedy for this at the end of this decision statement.

B – Trust’s communication with family

20. Mrs K complains that the Trust’s communication with Mrs M’s family was poor. She says this includes communication about Mrs M’s diabetes and Mrs M experiencing a hypoglycaemic (low blood sugar) episode.
21. The Trust has told us it communicated with Mrs M’s family regularly, making extra contact when required.
22. The Trust’s records say:
• a doctor spoke with Mr K on 30 September and discussed Mrs M’s recent medical history;
• a dietitian spoke with Mr K on 1 October and discussed Mrs M’s eating habits and preferences;
• a physiotherapist discussed Mrs M’s social history with Mr K on 2 October;
• a nurse spoke with Mr K on 3 October;
• on 4 October, the Trust assessed Mrs M’s mental capacity to decide about her discharge destination. As part of this, a nurse asked Mr K for his views on Mrs M’s best interests; and
• on 8 October, the Trust issued a letter to Mr K explaining that Mrs M would be discharged from hospital and get an assessment of her needs in the care home.
23. Based on the records, I consider the Trust communicated regularly enough with Mr K. The records of conversations are of key details rather than every word. So, we cannot know exactly what the Trust told Mr K. However, the records indicate there were several opportunities for Mr K to ask doctors and nurses about
    Mrs M’s condition and progress. I have therefore not found fault with the Trust’s overall communication with Mrs M’s family.
24. Mrs K has confirmed to us that Mrs M did not have a diagnosis of diabetes before going into hospital on 30 September. The Trust has also confirmed that it did not diagnose Mrs M with diabetes. This matches the Trust’s records at the time which state that Mrs M was not “known or new diabetic”. While Mrs M clearly had a documented episode of low blood sugar in hospital, there is nothing to indicate that she had been diagnosed with diabetes. As Mrs M was not diagnosed with diabetes, the Trust did not act with fault in not discussing this condition with her family.

C – Discharge from hospital to the Home

Key issues

25. Mrs K complains that the discharge from hospital to the Home was inappropriate because the CQC had rated the Home as inadequate and it could not meet
    Mrs M’s needs. She says the family were not told of its inadequate rating and had no choice in Mrs M’s discharge destination.
26. The Trust told Mrs K that it reviewed Mrs M on 3 October 2020 and decided she needed “an interim placement to continue her care”.
27. The Trust also told us that a mental capacity assessment had identified the need for an interim care placement and that it discharged Mrs M under pathway 2. It also said:
• an assessment of need would have been sent to the Home;
• the Home would not have agreed to take Mrs M if it did not agree it could meet her needs;
• at the time Mrs M was leaving hospital, special rules applied to hospital discharge because of the COVID-19 pandemic. This meant less choice of discharge destination for patients and their families;
• the care homes Mrs M’s family wanted for Mrs M were both closed and Godden Lodge was the next nearest care home that did not charge a “utility charge”;
• the NHS clinical commissioning group that was responsible for buying residential care such as Mrs M’s never instructed the Trust not to place patients at the Home; and
• it would have informed the Council on the day of Mrs M’s discharge to Godden Lodge.
28. One of CQC’s roles is to inspect care homes registered with it. It publishes the reports from these inspections. CQC rates most services according to how safe, effective, caring, responsive and well-led they are, using four levels: outstanding; good; requires improvement; and inadequate. In December 2019, CQC inspected the Home and gave it an overall rating of ‘inadequate’. This put the Home into ‘special measures’. CQC’s website says its report into the inspection was published in March 2021.
29. Regarding the special measures, the Home told us that:
• following the 2019 inspection, CQC imposed a condition on the Home’s registration. This meant it could not take any new residents without CQC’s express permission;
• in July 2020, the Council did a quality review and recommended lifting this condition. The Council disputes this point and says the recommendation referred to its own restriction, not CQC’s;
• the Council emailed the Home on 10 August 2020 informing it that “the embargo on placements…has now been lifted”;
• it has no documentary record of communication from CQC confirming this; and
• CQC eventually removed the condition in April 2021, following an application to remove it.
30. Regarding Mrs M’s discharge from hospital to the Home, the Home told us:
• it completed a pre-admission assessment on 8 October 2020 over the telephone;
• as a result, it decided the Home could meet Mrs M’s needs and offered her a place; and
• CQC has made enquiries around Mrs M’s admission to the Home and raised no concerns about it.

My analysis

31. Mrs K is correct that the Home’s CQC rating was ‘inadequate’ at the time of Mrs M’s admission. Councils and hospitals can still place people in care homes with this rating, unless the CQC impose conditions preventing this. At the time Mrs M was ready for discharge from hospital, government guidance called “Hospital Discharge Service: Policy and Operating Model” limited the choice people had in their discharge destination because of the importance of ensuring people did not stay in hospital longer than necessary at the height of the COVID-19 pandemic.
32. The available information indicates the Home and the Council did not tell the Trust of the CQC condition stating the Home could not take new admissions. The information had not yet been published on CQC’s website. In these circumstances, the Trust was not at fault for agreeing to discharge Mrs M to the Home.
33. However, the Council and Home knew of the restriction, yet the Home continued admitting people to Godden Lodge without ensuring CQC had provided permission or lifted its restriction. There is no indication the Council took action to try to prevent this. The Council’s email to the Home in August 2020 had the potential to confuse matters by stating an embargo on placements had been lifted. These were faults.
34. We cannot say, even on balance of probability, that Mrs M would have been placed in a different care home but for the fault. This is because there are too many variables, including the possibility of the Home seeking and getting CQC’s written permission to resume admissions following the Council’s quality review of July 2020. However, Mrs M’s family is left with a distressing concern that Mrs M might have gone to a different care home and experienced better care but for this fault. This is an injustice to Mrs M’s family.

D – Care in the Home

35. Mrs K says the Home provided poor care to Mrs M. Mrs K is concerned the Home did not offer Mrs M a good variety of food and that it did not supervise her when she ate and drank. She says this increased Mrs M’s risks of choking and aspiration (accidental breathing in of fluid or solids into the lungs). Mrs K believes the lack of supervision led to Mrs M contracting aspiration pneumonia (lung infection caused by breathing in vomit, food, drink, or harmful chemicals), which ultimately led to her death.
36. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. CQC has guidance on how to meet the fundamental standards. The following regulations are relevant to this part of the complaint.
• Regulation 9: person-centred care. This says care must meet people’s needs and reflect their preferences.
• Regulation 12: safe care and treatment. This includes assessing risks to people’s health and safety, and doing everything reasonably practicable to reduce the risks.
• Regulation 14: meeting nutritional and hydration needs. This says people should get adequate nutrition and hydration to sustain life and good health and reduce the risks of malnutrition and dehydration. Care providers should also take people’s preferences into account when providing food and drink.

Food and drink

37. The Home’s care plan for Mrs M’s eating and drinking said:
• she needed a balanced diet suitable for people with Type 2 diabetes;
• she preferred finger foods;
• the Home should have weighed Mrs M every week until her weight stabilised; and
• staff had to monitor and record Mrs M’s food and fluid intake every day and night.
38. It is unclear why the care plan mentioned diabetes, as Mrs M did not have a diagnosis of diabetes. We cannot say, even on balance of probabilities, that this was fault by the Home. This is because it is possible the Home received this information from an external source.
39. The Home has told us it accepts Mrs M did not receive a balanced diet or one specifically for people with diabetes and that it wants to apologise for this. It has explained that staff gave Mrs M the same food regularly as that was all she enjoyed eating at the time. The Home’s records show that:
• during Mrs M’s first few days at the Home, staff offered her a variety of food, some of which she declined;
• Mrs M seemed more inclined to accept food she could pick up in her hand and eat, such as bread with jam, sandwiches and chips;
• Mrs M tended to refuse food that needed to be eaten from a spoon or fork, such as yoghurts, pasta and sauce; and
• as Mrs M’s stay at the Home progressed, staff mostly offered her the foods she seemed to prefer. This meant she was not receiving a balanced diet.
40. The Home was at fault in not continuing to offer Mrs M the variety of foods needed for a balanced diet, as this was contrary to her care plan and not in keeping with Regulation 14. However, this did not cause Mrs M an injustice. This is because:
• Mrs M did not have a diagnosis of diabetes;
• the Home found through experience that Mrs M preferred finger foods and regularly rejected other foods. It tried to act in a person-centred way by giving her the food she preferred; and
• weighing records indicate that Mrs M gained a small amount of weight (just under a kilogram) in the time she was at the Home.

Risk assessment and management

41. The Home assessed risks to Mrs M and prepared plans for different aspects of her care soon after admission. These documents include the following key points.
• Mrs M ate and drank while in bed. She was at risk of choking and aspiration if unsupervised or positioned poorly. The Home was to mitigate the risk with supervision and ensuring Mrs M sat upright when eating or drinking.
• Mrs M would chase staff away when being helped with eating and drinking. The staff would then leave, returning later to give Mrs M help and support. This approach could take some time but would mean Mrs M would eventually accept help.
• Mrs M needed to be supervised at all times with eating and drinking.
42. The Home acted without fault in assessing potential risks to Mrs M and planning to reduce them.
43. However, the records also show the following:
• on 28 October, Mrs M did not sit up while having lunch;
• on 30 October, care notes say “juice on table”. It is not clear if this meant staff left the juice on Mrs M’s table without supervision; and
• on 9 November, Mrs M was asleep at dinner time and staff “left her dinner on the table for her when she awakens”.
44. This means the Home did not keep to Mrs M’s care plans or act in accordance with the risk assessments on some occasions. This was contrary to Regulation 12 and fault. It is likely to have increased Mrs M’s risk of aspiration. However, we cannot say, even on balance, that the poor care on those occasions led to aspiration or aspiration pneumonia. This is because the care plan, when followed correctly, only reduces the risk of aspiration. It does not eliminate the risk altogether. Even with care that followed her care plans correctly, Mrs M could have aspirated food or drink and become ill as a result.
45. The fault has caused upsetting uncertainty for Mrs M’s family about whether
    Mrs M’s last illness could have been avoided with better care and whether the end of her life could have been less distressing. This is an injustice to them.

E – Home seeking medical help

46. Mrs K says the Home delayed in seeking medical help, including an ambulance, for Mrs M.
47. The Nursing and Midwifery Council (NMC) has published a Code, containing the professional standards that registered nurses must uphold. The following are relevant to this part of the complaint.
• 3.2 “recognise and respond compassionately to the needs of those who are in the last few days and hours of life”.
• 13.1 “accurately identify, observe and assess signs of normal or worsening physical and mental health in the person receiving care”.
• 13.2 “make a timely referral to another practitioner when any action, care or treatment is required”.
• 13.3 “ask for help from a suitably qualified and experienced professional to carry out any action or procedure that is beyond the limits of your competence”.
48. Regulation 12 as set out in paragraph 36 above is also relevant.
49. The Home told us that:
• it contacted Mrs M’s GP on 27 November 2020 because of concerns about Mrs M’s urine and her poor eating in the previous days. The GP did a video consultation, prescribed antibiotics and arranged a visit from a palliative care nurse. Palliative care offers physical, emotional and practical support for people with serious or terminal illness;
• the next day, it called an out of hours GP because although Mrs M had not worsened, she remained poorly. The GP advised the Home to continue observing Mrs M and to call 999 if she worsened;
• the palliative care nurse saw Mrs M on 30 November 2020 and observed that she seemed comfortable;
• the palliative care nurse ordered anticipatory medication. This is sometimes prescribed for people in case they experience distressing symptoms such as severe pain, anxiety, nausea and breathing problems. However, Mrs M did not need this at any point during her time in the Home;
• this was because Mrs M did not show any symptoms of agitation, distress or pain that would warrant giving her the medication while she was in the Home;
• on 1 December 2020, there was a clear change in Mrs M indicating her health had worsened rapidly. She was not awake or responding to voice or touch and her oxygen levels had dropped;
• staff called 999 promptly when Mrs M’s worsened health became apparent; and
• a safeguarding meeting held later concluded the Home took the right actions for Mrs M but should have communicated better with her family.
50. The Home’s records and the Council’s records of its safeguarding enquiry support what the Home has told us. They also show the Home sought medical advice from other professionals in the following situations:
• in response to information provided by Mrs M’s family early in her stay, the Home completed and end of life care plan for Mrs M. This included referring to Mrs M’s GP and the palliative care team for advice and having anticipatory medication in place;
• when the Home became concerned about Mrs M’s bowel movements and nutritional supplement supplies, it contacted her GP for advice; and
• it asked Mrs M’s GP to make a referral for physiotherapy advice in early November. The physiotherapist advised the Home to try putting Mrs M in a chair at mealtimes. The Home followed this advice and noted concerns about Mrs M’s risk of falling. It therefore made a referral to occupational therapy for further advice, including on a more appropriate chair.
51. The records indicate the Home acted in accordance with NMC’s Code and Regulation 12. I am therefore satisfied there was no fault by the Home (acting either as a health provider or on behalf of the Council) in seeking medical help for Mrs M.

F – Home’s communication with family

52. Mrs K complains the Home’s communication with the family was poor. She says this included poor communication about GP appointments and Mrs M approaching the very end of her life.
53. The Home has told us that:
• it understood Mrs M “may have been progressing towards the end of her life”; and
• it accepts it was at fault in failing to adequately explain Mrs M’s condition to her family.
54. The Home’s records and the Council’s safeguarding enquiries reflect this. They also indicate the Home’s communication with Mrs M’s family was inadequate about matters such as food and drink intake, and details of the medical and therapy support Mrs M received. This has added to the family’s confusion, uncertainty and distress about the last few weeks of Mrs M’s life. This is an injustice to Mrs M’s family.

Summary of fault, injustice and actions already taken by the organisations

55. The Trust was at fault because of flawed record keeping. This has created avoidable uncertainty for Mrs M’s family about her care in hospital.
56. Until 19 November, the Home was acting in its own right as a health provider. From 20 November, it was acting on behalf of the Council. We therefore hold both organisations responsible for the following faults and injustice.
• Continuing to admit people to the Home without ensuring it had CQC’s permission for this. This has left Mrs M’s family with a distressing concern that Mrs M might have gone to a different care home and experienced better care if the fault had not happened.
• Not continuing to offer Mrs M the variety of foods needed for a balanced diet. This did not cause Mrs M an injustice.
• Failing to keep to Mrs M’s care plans or act in accordance with the risk assessments on some occasions. This increased the risk of harm to Mrs M. However, we cannot conclude Mrs M suffered actual harm as a result. The fault has created avoidable and upsetting uncertainty for Mrs M’s family, who believe she may have lived longer, if she had received better care.
• Poor communication with Mrs M’s family, adding to their confusion, uncertainty and distress about the last few weeks of Mrs M’s life.
57. The Home has also confirmed it has already done the following:
• shared the lessons learned from the complaint about communication and documentation with staff;
• arranged for senior staff to complete further training in end of life care and a course on medical conditions and diagnosis;
• established daily documentation checks by senior staff to ensure compliance; and
• made nutritional intake a topic at daily handovers.
58. In light of this, and because we will share our decision with CQC, I have decided not to recommend further service improvements.

Back to top

Agreed actions

59. Within four weeks of our final decision, the Trust, Home and Council will write to Mrs M’s family and offer them meaningful individual apologies for the faults we have identified and their impact.
60. Within four weeks of our final decision, the Home will pay every complainant (Mr K, Miss K and Mrs K) £250 each in recognition of the injustice summarised at paragraph 56.
61. Within four weeks of our final decision, the Council will pay every complainant (Mr K, Miss K and Mrs K) £250 each in recognition of the injustice summarised at paragraph 56.
62. The organisations will provide us with evidence they have complied with the above actions.

Back to top

Final decision

63. Mrs K complained about the care of her late mother-in-law, Mrs M. We uphold parts of the complaint relating to record keeping, admission to the Home, nutrition, risk management and communication. We have not upheld the rest of the complaint. The Council, Trust and Home have accepted our recommendations. We have therefore completed the investigation and closed this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman