This complaint was investigated jointly by the Local Government Ombudsman for England and the Health Service Ombudsman for England in accordance with the powers conferred by amendments to their legislation due to The Regulatory Reform (Collaboration etc. between Ombudsmen) Order 2007. With the consent of the complainant, Mrs Keohane, the two Ombudsmen agreed to work together because the health and social care issues were so closely linked. A co-ordinated response, consisting of a joint investigation leading to a joint conclusion and proposed remedy in one report, seemed the most appropriate way forward.

Background

Mr Hughes was a 61 year old man with severe learning disabilities who had lived in care for most of his adult life. For many years he had lived at a care home in High Wycombe (the Care Home) which was managed by the Council. Mrs Keohane told us her brother had been born in difficult circumstances during World War II and that as a result he suffered damage to his brain at birth. He also suffered from dementia, schizophrenia and heart problems. His verbal communication was limited to a few words and his behaviour could be challenging.

In May 2004 Mr Hughes was admitted to the Trust because he could not pass urine. He had an operation on his prostate but deteriorated after the surgery and was admitted to the Intensive Care Unit (the ICU). After nine days in the ICU he was transferred to a ward and two days later he was discharged to the Care Home. Staff at the Care Home were concerned about him and the following day they asked a GP to visit. The GP decided Mr Hughes did not need to be readmitted to hospital. Later that day Mr Hughes suddenly collapsed and he was taken to the Accident and Emergency Department (A&E) at the Trust, but he could not be resuscitated and died.

The Coroner found that Mr Hughes had died because he had been aspirating (inhaling fluids and solids which should have passed into his stomach) over a period of time and that he had also suffered an acute episode of aspiration.

The complaint

Mrs Keohane complained to the Ombudsmen that her brother should not have died. She said that if the Trust, the GP and the Care Home staff had acted differently, he would have survived. She believed her brother had been treated less favourably for reasons related to his learning disabilities.

Mrs Keohane was also dissatisfied with the way her complaint had been handled by the Surgery, the Trust and the Healthcare Commission. She felt the NHS complaints process had failed her and she asked the Ombudsmen to find answers to her questions about the service provided for her brother.

What should have happened

The staff who looked after Mr Hughes should have been mindful of the overall standard governing their work. This standard is made up of two components: the general standard which is derived from general principles of good administration and, where applicable, public law; and the specific standard which is derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.

In Mr Hughes’ case, legislation and policy about disability and human rights, in particular the Disability Discrimination Act 1995, the Human Rights Act 1998, Valuing People: A New Strategy for Learning Disability for the 21st Century (2001) and Once a Day: A Primary Care Handbook for people with learning disabilities (1999) were especially relevant to the overall standard.

In terms of professional standards, the doctors and nurses should have followed the standards set out by their regulatory bodies. Mr Hughes’ care and treatment at the Trust should have met national and professional standards regarding nursing care and discharge arrangements and the Trust’s own discharge policy.

The responses to Mrs Keohane’s complaint about NHS services should have followed the National Health Service (Complaints) Regulations 2004.

How the Ombudsmen investigated

The investigator spoke to Mrs Keohane to gain a full understanding of her complaint. It was important to carefully consider her recollections and views. Evidence about what happened to Mr Hughes, how his sister’s complaint about NHS services had been handled, and the internal investigations conducted by the Trust and the Council were considered. These bodies provided additional information in response to specific enquiries. Enquiries were also made of the Coroner who conducted the inquest into Mr Hughes’ death.

Several professional advisers provided expert clinical advice to the Ombudsmen. They were: a professor of cardiology; a surgical consultant; a consultant anaesthetist with experience of work in ICU; a GP; a speech and language therapist; a hospital nurse; and a learning disability nurse.

Mrs Keohane, her representative and the bodies complained about had the opportunity to comment on the draft report, and their comments were carefully considered before the final report was issued.

What the Ombudsmen found and concluded

The Health Service Ombudsman’s investigation of the complaint against the Trust

Mrs Keohane was satisfied with the care and treatment her brother received before he left the ICU at the Trust. She complained about the service provided for Mr Hughes from the time he left the ICU to the time he was discharged two days later. In particular, she said staff on the ward did not take sufficient account of his needs as a person with learning disabilities and his discharge was premature and poorly planned. Mrs Keohane said her brother was ‘pushed out’ from the Trust because staff ‘did not want him there because he was more difficult’. Mrs Keohane also complained that Trust staff did not communicate properly with her about her brother’s condition and that the Trust’s response to her complaint was inadequate.

The Health Service Ombudsman found that Mr Hughes was assessed thoroughly and appropriately by doctors who put in place an appropriate plan for management of his medical care, in particular his heart problems. She also found the Trust’s speech and language therapists acted reasonably when assessing Mr Hughes’ ability to swallow.

However, the Health Service Ombudsman found nurses on the ward made entirely inadequate attempts to assess Mr Hughes’ needs or plan or deliver care for him. Nurses seemed to have little idea of how to look after Mr Hughes or how to make reasonable adjustments so they could manage his needs. They did not act in accordance with professional standards.

Mr Hughes was medically fit to be discharged because he no longer needed specialist medical care and because a plan to manage his heart condition had been put in place by Trust doctors. However, the Health Service Ombudsman found it was not safe to discharge him. She found the team responsible for ensuring Mr Hughes was safely discharged (including nurses, doctors and therapists) failed to enact even the most basic principles of good discharge as set out in the prevailing local and national policies. She was critical of the failure of Trust staff to engage with community staff to ensure that a multi-agency plan was in place for Mr Hughes’ discharge. She found that in this respect, neither doctors nor nurses acted in accordance with professional standards.

The Health Service Ombudsman found that when Mr Hughes was in the ICU, Trust doctors had told his family that they thought he had suffered a heart attack. However, she found no evidence that staff communicated with his family after he left the ICU. They did not inform his family, as they should have done, that he had fallen on the night before he was discharged or even that he was due to be discharged.

The Health Service Ombudsman concluded that the Trust failed to: provide a reasonable standard of nursing care; make reasonable adjustments to meet Mr Hughes’ needs; discharge him safely; or communicate adequately with his family. She also concluded that this service failure was at least in part for disability related reasons.

The Health Service Ombudsman found many shortcomings in the way in which the Trust handled Mrs Keohane’s complaint. For instance, the Trust failed to: recognise or address the most serious issues complained about; conduct an appropriate investigation; or acknowledge and apologise for poor care and treatment. She concluded that this was maladministration.

The Trust informed the Health Service Ombudsman of actions it had taken to address shortcomings in its care and treatment of Mr Hughes and its handling of Mrs Keohane’s complaint. It also offered further apologies for failings identified during the investigation. The Health Service Ombudsman found these actions were appropriate and reasonable. However, she also concluded that Mrs Keohane still had reason to be aggrieved by the failings in the Trust’s care and treatment of her brother, and in particular those failings which occurred for disability related reasons. Furthermore, partly due to failings at the Trust, Mrs Keohane had to wait four years for answers to her questions which flowed from the maladministration and service failure identified. These findings represented unremedied injustice.

Therefore, the Health Service Ombudsman upheld the complaint against the Trust.

The Health Service Ombudsman’s investigation of the complaint against the Surgery

After around three weeks in the Trust, including a period in the ICU, Mr Hughes was discharged to the Care Home at short notice without an agreed discharge plan to guide staff caring for him in the community.

Mrs Keohane complained that the GP did not respond quickly enough to a request from Care Home staff to visit Mr Hughes on the day he died. She said the GP did not examine her brother properly and should have admitted him to hospital. She said the GP treated Mr Hughes less favourably for reasons related to his learning disabilities. She was also dissatisfied with the way the Surgery handled her complaint.

The Health Service Ombudsman appreciated why Mrs Keohane found it difficult to accept that the GP examined Mr Hughes properly and made reasonable decisions about his care and treatment when, later that day, he collapsed and died. However, she found no reason to criticise the GP. She found no evidence of service failure by the Surgery and no evidence that Mr Hughes was treated less favourably for reasons related to his learning disabilities. Furthermore, she found no evidence of maladministration in the way the Surgery handled Mrs Keohane’s complaint.

Therefore, the Health Service Ombudsman did not uphold the complaint against the Surgery.

The Local Government Ombudsman’s investigation of the complaint against the Council

Mrs Keohane did not complain to the Local Government Ombudsman about the actions of staff at the Care Home until October 2007. By this time the NHS components of the complaint had already been accepted for investigation by the Health Service Ombudsman. Therefore, with the aim of providing a timely integrated response, the Local Government Ombudsman decided he would exercise his discretion and accept the case for investigation.

Mrs Keohane complained about the care and treatment provided by staff at the Care Home when Mr Hughes was discharged and when he collapsed. In particular, she wanted to know whether appropriate arrangements were made for her brother’s dietary needs.

The Local Government Ombudsman’s review of different sources of evidence showed the story about what had happened to Mr Hughes after his last meal had become distorted over time and he was able to set the record straight on this point. Evidence clearly showed that Mr Hughes’ evening meal had been prepared broadly in line with imprecise instructions given by the Trust and that he had collapsed and vomited around 20 minutes after eating his meal. The Local Government Ombudsman found no evidence that the actions of Care Home staff in preparing this meal and other drinks and meals had any influence on Mr Hughes’ subsequent collapse and death.

The Local Government Ombudsman was concerned to find that Care Home staff did not have up-to-date first aid training which would have helped them respond appropriately when Mr Hughes collapsed. However, he was persuaded that they acted reasonably in the circumstances and he found no evidence of maladministration.

Therefore, the Local Government Ombudsman did not uphold the complaint against the Council.

The Health Service Ombudsman’s investigation of the complaint against the Healthcare Commission

Mrs Keohane was dissatisfied with the way her complaint was handled by the Healthcare Commission.

The Health Service Ombudsman found maladministration in the way the Healthcare Commission reviewed Mrs Keohane’s complaint against the Trust because the Healthcare Commission made no effort to follow up its recommendations to the Trust. Furthermore, it took too long to review the complaint and did not keep Mrs Keohane updated on progress. This resulted in an injustice to Mrs Keohane in that she did not receive a proper review of her complaint. Therefore, the Health Service Ombudsman upheld this aspect of the complaint against the Healthcare Commission. However, she found no maladministration in the way the Healthcare Commission handled the review of Mrs Keohane’s complaint against the Surgery and, therefore, she did not uphold this aspect of her complaint.

Was Mr Hughes treated less favourably for reasons related to his learning disabilities? The Health Service Ombudsman’s conclusion

The Health Service Ombudsman concluded that failures in the Trust’s care and treatment of Mr Hughes were in part for reasons related to his learning disabilities. Staff did not make reasonable adjustments to meet his complex needs. His behaviour, which was linked to his impairment, made him difficult to manage and staff discharged him unsafely.

The Health Service Ombudsman also concluded that the Trust’s actions and omissions constituted a failure to live up to human rights principles, especially those of dignity and equality. By discharging Mr Hughes prematurely and without sufficient regard to his care, the Trust failed to have due regard to the need to safeguard his dignity and wellbeing in his future care by the Care Home, and to the observance of the principle of equality in the delivery of his care. There was no evidence of any positive intention to humiliate or debase Mr Hughes. Nevertheless, the standard of service provided did raise the question of whether the Trust’s actions constituted a failure to respect Mr Hughes’ dignity. In these respects, the Trust’s service failure touched upon and demonstrated inadequate respect for Mr Hughes’ status as a person.

Was Mr Hughes’ death avoidable?

Mrs Keohane asked whether the Ombudsmen could find any additional information about the reason why Mr Hughes collapsed and died. The Ombudsmen were clear that it was not possible to establish beyond doubt why Mr Hughes collapsed. They found no evidence which pointed directly to a cause for his collapse. There was no post mortem evidence which showed that he collapsed due to any of the most common causes of collapse for a person of his age. That said, in the light of the advice from the advisers, it seemed possible that he collapsed due to a sudden change in his heart rhythm which led to the other events associated with his death. The advisers said the likelihood that Mr Hughes would survive such an event, even in hospital, would have been low.

The Ombudsmen did not conclude that Mr Hughes’ death occurred in consequence of any maladministration or service failure which they found during the investigation and, therefore, they did not conclude that his death was avoidable.

The Health Service Ombudsman’s recommendations

The Health Service Ombudsman recommended that Mrs Keohane should receive an apology and compensation of £10,000 from the Trust and an apology from the Healthcare Commission. The compensation was in recognition of the injustice suffered in consequence of the service failure and maladministration identified.

In response to these recommendations the Trust acknowledged its failings, apologised to Mrs Keohane and offered information about improvements in service since Mr Hughes’ death. It also agreed to pay the compensation recommended. The Healthcare Commission agreed to apologise to Mrs Keohane.

The complainant’s response

Mrs Keohane said trying to find out what had happened to her brother had been a ‘long, frustrating and distressing time’. She said the investigation was thorough and at last enabled her family to have a better understanding of what happened to Mr Hughes. She said it was a comfort to her to have the story clarified and presented so clearly. She also found comfort in the information provided about the standard of care in the Care Home.

However, Mrs Keohane did not accept the advisers’ suggestion about the reason for her brother’s collapse, or the conclusion that there was no service failure by the GP. Mrs Keohane said she strongly believed that Mr Hughes was prematurely discharged from the Trust and the GP should have readmitted him.

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Edward Hughes

Summary report of a joint investigation by the Health Service Ombudsman and the Local Government Ombudsman of a complaint made by Mencap on behalf of Mrs Iris Keohane in relation to her late brother, Mr Edward Hughes.

Complainant:

Aggrieved:

Representative:

Complaint against:

Introduction