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Selected Investigations Completed April - September 1999 > Part II, Case no. E.926/97-98
Complaint against: The Medway NHS Trust, Kent
Complaint as put by Mrs A
1. The account of the complaint provided by Mrs A was that, in February 1997, her mother, Mrs B, was admitted to the Medway Hospital, Gillingham, which is managed by the Trust, for treatment related to chronic pancreatitis. Mrs B's condition deteriorated and on 3 March she suffered a stroke. Mrs B died on 6 March. Mrs A and other of Mrs B's daughters complained to the Trust about various aspects of their mother's clinical management and nursing care. A meeting with Trust staff took place; and on 10 November the Trust's chief executive replied substantively to the concerns raised. Mrs A remained dissatisfied, and on 26 November requested an independent review of the clinical aspects of her complaint. On 26 March 1998 the Trust's convener wrote to Mrs A refusing her request.
2. The complaints investigated were that:
(a) the consultant physician responsible for Mrs B's clinical care (the consultant) failed to recognise and act on her deteriorating condition;
(b) no active treatment was provided, and no anti-coagulant therapy or physiotherapy was given in order to reduce the risk of blood clotting;
(c) a decision not to resuscitate Mrs B in the event of cardiac arrest was not discussed with, or disclosed to, her relatives;
(d) Mrs B's relatives did not receive a satisfactory explanation as to the precise cause of her death; and
(e) the handling of the complaint by the Trust and their convener was dilatory and unsatisfactory.
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Investigation
3. The statement of complaint for the investigation was issued on 16 October 1998. The Trust's comments were obtained and relevant papers, including Mrs B's medical records, were examined. The Ombudsman's investigator took evidence from Mrs A and the Trust staff involved. Evidence was also taken from the Home Office pathologist who conducted the post mortem on Mrs B; his actions are not within the Ombudsman's jurisdiction. Two independent professional assessors were appointed to advise on the clinical issues. Their report is attached at Annex A.
(a) Failure to recognise and act on Mrs B's deteriorating condition; and (b) no active treatment or anti-coagulant therapy or physiotherapy.
Evidence from Mrs B's clinical records
4. In August 1995 and July and August 1996 Mrs B's general practitioner (GP) referred her to the consultant because she was suffering from abdominal pain which the GP suspected was caused by pancreatitis. Mrs B received treatment and underwent tests. On 7 November 1996 the consultant wrote to the GP stating 'It may be that this patient has had two episodes of acute pancreatitis but I think this should be a provisional diagnosis at present. I am going to do an upper G.I. [gastro-intestinal] endoscopy on her ....'. The endoscopy was undertaken on 21 November 1996. On 28 November the consultant wrote to the GP again stating '.... I think this patient should be reviewed in the clinic and consideration can be given to the question of whether she ought to have an ERCP'. (Endoscopic retrograde cholangio-pancreatography is a specialised x-ray technique which allows close examination of the pancreatic and bile ducts.)
5. In January 1997 Mrs B had two admissions to hospital suffering from further episodes of abdominal pain. The ERCP was carried out on 5 February 1997. The consultant noted that it appeared to show changes in the pancreatic duct that were consistent with chronic pancreatitis and arranged for an urgent CT scan (computed tomography - a computer constructed imaging technique) of the pancreas to check for further evidence that this was so, or for other reasons for the changes, including pancreatic cancer.
6. The CT scan was carried out on 19 February. It showed a large quantity of ascites, that is free fluid in the abdominal cavity. It confirmed the changes in the pancreatic duct and showed that the pancreatic gland was shrunken. There was no definite evidence of pancreatic cancer. On the same day, Mrs B was admitted to the hospital, under the care of the consultant, because since the ERCP she was finding it increasingly difficult to eat and was suffering the effects of the fluid in her abdomen and swollen ankles. Mrs B underwent further tests and was in the meantime managed conservatively, that is actively observed and cared for while the root of her condition was being explored. At 8.05 am on 3 March, nursing staff saw that Mrs B's condition had changed, and that she complained of double vision and was very weak and uncoordinated. At 11.30 am a junior doctor recorded that Mrs B's level of consciousness had deteriorated and that she might be suffering a cerebrovascular accident (a stroke). The junior doctor spoke with the consultant who saw Mrs B at 12.15 pm. He recorded that Mrs B's symptoms and their sudden onset, suggested a stroke or other vascular event and arranged a CT scan of Mrs B's brain. The scan done later that day revealed nothing abnormal: the radiologist reported that it might have been too early for any damage caused by a stroke to show on the scan. However, Mrs B's condition continued to deteriorate and she died on 6 March 1997.
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Evidence of Mrs A
7. In a letter to the Ombudsman Mrs A wrote:
'.... I remain dissatisfied by the answers, or lack of answers given to the more important issues regarding my mother's care. .... I feel that the deterioration in my mother's condition following the ERCP should have been anticipated by [the consultant], but despite referrals from my mother's GP and a consultation in the outpatient's department, [the consultant] trivialised her oedematous condition and said it was gas, and so her deterioration continued. .... My mother was not prescribed any prophylactic anticoagulant therapy, or given any physiotherapy to prevent clot formation, and did not appear to be regarded as "at risk" from thrombosis, despite the fact that the clotting disorder - disseminated intravascular coagulation - is listed as a possible complication of pancreatitis ....'
Mrs A told the Ombudsman's investigator that she wanted to know whether her mother had received adequate treatment for her pancreatitis.
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8. The consultant told the Ombudsman's investigator that he had performed Mrs B's ERCP to establish that her problem was pancreatitis, and to exclude the possibility of gallstones. He was on holiday when Mrs B was admitted on 19 February 1997. The consultant said he was concerned about Mrs B's pancreatic ascites, which was unusual, and the progressive, recurrent attacks from which she was suffering. He considered that the most likely cause of the ascites was a pancreatic tumour, which could easily be missed. There was a need for further investigation; and he told Mrs B, before her stroke, that he was going to refer her to another specialist hospital for that purpose. (Note: the clinical records show that the consultant saw Mrs B on 28 February—a Friday). On 3 March, when he was about to arrange the referral, he learned about Mrs B's sudden deterioration. The consultant said that, prior to her deterioration, whenever he saw Mrs B she was either sitting up in bed or walking about the ward. He did not consider that anti-coagulant treatment was necessary.
Findings (a) and (b)
9. The Ombudsman's independent professional advisers have explained why they do not believe it would have been appropriate to give Mrs B a drug to prevent blood clotting during her last admission to hospital (Annex A-paragraph 6). They have also advised that there was no indication of the need for physiotherapy. They have concluded (Annex A-paragraph 14) that the management of Mrs B's condition was appropriate: they are satisfied that the consultant did recognise its difficult nature and planned to refer her to a specialist hospital. I accept their advice and do not uphold these complaints.
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(c) Decision not to resuscitate not discussed or disclosed
Evidence from Mrs B's clinical records
10. The junior doctor's note of 3 March 1997 that Mrs B might be suffering a stroke (6) recorded that she was not for resuscitation in the event of cardiac arrest. An entry in the nursing notes for the same day recorded that the consultant was to see Mrs B's daughter that afternoon.
Evidence of Mrs A
11. In her letter to the Ombudsman Mrs A wrote:
'.... I have been given no explanation as to why, after my mother suffered her deterioration, [the consultant] decided that she was for conservative treatment only and was not for resuscitation if cardiac arrest should occur.'
Mrs A told the Ombudsman's investigator that the family found out about the decision not to resuscitate her mother only after her death. She found it incredible that one day her mother had been classed as mobile and self caring and the next it had been decided she was not to be resuscitated.
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Guidance
12. In March 1993, the British Medical Association and the Royal College of Nursing issued a joint statement about cardiopulmonary resuscitation (CPR) which included:
'1. It is appropriate to consider a do-not-resuscitate (DNR) decision in the following circumstances:
'a Where the patient's condition indicates that effective [CPR] is unlikely to be successful.
'b Where CPR is not in accord with the recorded, sustained wishes of the patient who is mentally competent.
'c Where successful CPR is likely to be followed by a length and quality of life which would not be acceptable to the patient.
'....
'3. The overall responsibility for DNR decision rests with the consultant in charge of the patient's care. This should be made after appropriate consultation and consideration of all aspects of the patient's condition. The perspectives of other members of the medical and nursing team, the patient, and with due regard to patient confidentiality, the patient's relatives or close friends may all be valuable in forming the consultant's decision.
'4. Discussion of [CPR] with all patients would be inappropriate. However, there are circumstances in which sensitive exploration of the patient's wishes should be undertaken, ideally by the consultant concerned, for example, with patients who are at risk of cardiac or respiratory failure or who have a terminal illness. Such discussions should be documented in the patient's record.
'....
'9. When the basis for a DNR order is the absence of any likely medical benefit, discussion with the patient, or others close to the patient, should aim at securing an understanding and acceptance of the clinical decision that has been reached. If a DNR decision is based on quality of life considerations, the views of the patient where these can be ascertained are particularly important. If the patient cannot express a view, the opinion of family or others close to the patient may be sought regarding the patient's best interests ....'.
13. The Trust's 'Do Not Resuscitate' policy is dated March 1995. It is based on the above guidelines.
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Trust evidence
14. At the start of this investigation the Trust's secretary made a formal response to the Ombudsman's office on behalf of the Trust. It included:
'The Trust accepts that [the consultant's] decision not to resuscitate Mrs B in the event of a cardiac arrest was not discussed with or disclosed to her relatives ....'.
15. The consultant told the Ombudsman's investigator that he did not always tell patients or families about DNR decisions because it could be an insensitive thing to do if the situation was already difficult. There was also not always a good time to broach the subject. However, he would have expected junior staff to speak to the family about the DNR decision. He confirmed that he saw Mrs B's family after her condition had deteriorated on 3 March.
16. The clinical director said that all staff were aware of the Trust's resuscitation policy and that it was included in the training of new staff. Discussion with patients and relatives about DNR decisions was a sensitive matter and would depend on time available, the clinical situation, and the consultant involved.
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Findings (c)
17. The clinical records (paragraph 6) show that Mrs B deteriorated quite quickly and severely on 3 March 1997. The Ombudsman's independent professional advisers have commented (Annex A-paragraph 13) that in those circumstances the DNR decision in respect of Mrs B was clinically appropriate. However, they consider that it would have been helpful for the consultant and the team looking after her to discuss that decision with her family. I agree. I have seen no evidence to indicate that certain principles set out in the guidelines (paragraphs 12 and 13) were either considered or applied by staff in this case. The responsibility rested with the consultant to ensure that the Trust's policy was followed and I recommend that the Trust remind staff of its terms. I uphold this complaint.
(d) No satisfactory explanation of the cause of Mrs B's death
Evidence of Mrs A
18. In her letter to the Ombudsman Mrs A wrote:
'.... I remain confused and dissatisfied about the explanation given to me that my mother died of a massive stroke. .... The pathologist conducting the post mortem told me that my mum had indeed had a small stroke, but it would not have contributed to my mother's death. I am not sure why [the consultant] insists that she suffered a massive stroke.'
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Trust evidence
19. The Trust's secretary's formal response to the Ombudsman included:
'The precise cause of Mrs B's death was communicated to the family at the meeting with the Chief Executive ....'.
20. The notes of the meeting on 4 November 1997 between the chief executive, other Trust staff and Mrs B's family included:
'Family not clear that PM [post mortem] report actually states that her death was caused by a stroke. Family queried that she had indeed suffered a stroke - what treatment given?' After the meeting the chief executive wrote to Mrs A. His letter stated: '.... During our meeting [the consultant] was able to talk you through his management of your mother's condition, .... and the cause of her death. I know that you still have concerns around the latter point but would reiterate [the consultant's] comments that he feels that your mother's clinical care was appropriately managed. The confusion regarding the cause of death was accepted as relating to the wording in the Coroner's report and I believe our discussions resolved this issue.'
21. I have noted that the matter was also referred to in correspondence from a consultant outside the Trust (the clinical adviser) from whom advice was sought at the convening stage. The Trust's convener sent Mrs A copies of the letters from the clinical adviser. In one letter dated 19 January 1998 the clinical adviser wrote:
'When this patient suddenly deteriorated and lost consciousness, there was a flaccid left hemiparesis [slight paralysis or weakness of one half of the face or body]. There can therefore be no doubt about the diagnosis. The post mortem showed a softened brain stem.'
In response to a subsequent request for clarification of the cause of death the clinical adviser wrote
'It did seem that my report clearly showed that the cause of death was the stroke and not the deep vein thrombosis and pulmonary embolus'.
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Other evidence
22. The post mortem report stated that there was evidence of softening of the brainstem but no evidence of infarction or haemorrhage. The report added that there was a well formed thromboembolus in the lungs straddling the pulmonary arteries. (Note: a thromboembulus is a clot formed in one part of the body which then becomes detached and is carried to another part of the body in the bloodstream to block a blood vessel there.) The report recorded the primary cause of death as pulmonary embolism with lower limb phlebothrombosis (a clot in a vein due to sluggish flow of blood) as a secondary cause. The Home Office pathologist, who carried out the post mortem, confirmed that the actual cause of death was a pulmonary embolism.
Findings (d)
23. The Ombudsman's independent professional assessors have provided advice on this issue. (Annex A, paragraphs 9 to 11) They believe that although the pulmonary embolism contributed to Mrs B's death, her decline was compatible with a large stroke. The Trust have said that the precise cause of Mrs B's death was communicated to her family at the meeting on 4 November 1997. However, it is helpful to confirm such information in writing. That did not happen here. Neither the notes of the meeting nor the chief executive's letter gave a clear account of the causes of Mrs B's death; and, as they stand, the clinical adviser's letters would be difficult to follow. Importantly in this case, no attempt was made to explain fully, and in writing, the apparent confusion which had arisen in relation to the post mortem report, and to that extent I uphold this complaint.
(e) Complaint handling
Evidence of Mrs A
24. In her letter to the Ombudsman, Mrs A wrote:
'.... I am dismayed with the entire complaints procedure. It appears to have been an academic exercise rather than a serious look into what happened to my mother.'
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Guidance
25. NHS Executive guidance on the complaints procedure states that 'Full investigation and resolution of all types of complaint should be sought within twenty working days ....'. It also outlines a target of a further twenty working days for completion of the convening process following receipt of a request for independent review. The guidance further states that '.... Any request for an Independent Review panel received either orally or in writing by any other member of or employee of the Trust .... should be passed on to the convener immediately.' It adds that 'The convener must set out the reasons for any decision to refuse a panel as fully as possible so that his/her views are clearly available should the complainant decide to exercise the right to refer the complaint on to the Ombudsman. The intention is to ensure that the complainant is fully informed of the reasons for not convening a panel and, if appropriate, why the convener believes there should be a referral back to Local Resolution.'
Other information
26. Statistics produced by the Department of Health show that in 1996-97 the Trust concluded the local resolution of 36.7% of the complaints it received within the target set in the national guidance. The equivalent figure for 1997-98 was 11.6%. The Department of Health statistics also show that up to the end of 1997-98 no independent review panels had been established by the Trust.
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Sequence of events
27. I set out below a summary of the main events in the handling of Mrs A's complaint:
Local resolution
16 May 1997 Mrs A and her sisters complained to the Trust about Mrs B's care and treatment.
21 May The complaints manager acknowledged the complaint.
5 June The complaints manager sent the complaint and Mrs B's records to the consultant and the ward manager for investigation.
23 June The ward manager sent the complaints manager a response.
24 June The complaints manager sent a reminder to the consultant. She also sent Mrs A a holding letter.
1 July The consultant sent a written response to the complaints manager.
11 August The chief executive wrote to Mrs A offering a meeting.
22 August The complaints manager wrote to Mrs A offering dates in October for a meeting with Trust staff. She apologised that the dates were so far ahead and attributed this to the holiday period. Mrs A telephoned on 29 August to say the family could not manage the proposed dates in October.
4 November The meeting took place, attended by Mrs A, her sisters, a community health council (CHC) officer, the consultant, the ward manager, the senior clinical nurse, the complaints manager and the chief executive.
10 November The chief executive wrote to Mrs A.
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Request for an independent review
26 November Mrs A requested an independent review.
4 December The Trust's secretary, who was also the Trust's general manager, wrote to Mrs A stating that her request had been passed to the convener. He also summarised her outstanding concerns and asked her to confirm them.
10 December The Trust's secretary asked the consultant for his comments on those concerns.
16 December Mrs A wrote to confirm the list of concerns but asked that her whole letter be put to the convener. On the same date the Trust's secretary asked the regional office for a lay chairman and a clinical adviser.
31 December The names of candidates for independent clinical adviser were provided.
5 January 1998 The Trust's secretary held a meeting with Mrs A and Mrs C, another of Mrs B's daughters '.... so that they could describe verbally their concerns to help my understanding given their request for an independent review'.
6 January The Trust's secretary wrote to the convener stating: 'I am writing to forewarn you of a request for an independent review ....'. He enclosed copies of relevant papers, including a copy of Mrs A's letter of 26 November.
9 January A lay chairman's name was provided by the regional office.
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14 January The Trust's secretary wrote to Mrs A informing her that a lay chair had been appointed and asking her to confirm she was not intending to take legal action.
15 January The Trust's secretary wrote to the convener stating '.... I am sure we will not be able to avoid an Independent Review in this case, particularly because of the considerable acrimony between [the consultant] and the three daughters who are nurses, who think they know better. Perhaps, when considering the Review, we should look critically at the points and only allow a Review on those that are fundamental. There is no obligation, even when granting a Review, to allow all the points to go forward.' On the same date, he also sent the papers to the clinical adviser and the lay chairman.
19 January The clinical adviser provided a draft report and said he was away until 26 January.
20 January The lay chairman sent the Trust's secretary a list of questions he wanted the clinical adviser to answer.
26 January Mrs A wrote to the Trust's secretary confirming that it was not her present intention to take legal action.
1 February The clinical adviser confirmed his draft report with one small amendment.
3 February The convener sent Mrs A a holding letter.
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5 February The clinical adviser's letters of 19 January and 1 February were sent to the convener.
9 February The lay chairman sent the Trust's secretary an analysis of the complaint, including outstanding issues.
12 February The Trust's secretary sent the lay chairman's analysis and a list of outstanding issues to the clinical adviser.
16 February The Trust's secretary wrote to the clinical adviser asking him to confirm that he considered the case had been fully and fairly assessed at local resolution stage.
20 February The clinical adviser wrote to the Trust's secretary with further advice, in response to the lay chairman's questions.
24 February The Trust's secretary sent the lay chairman the clinical adviser's responses.
27 February The clinical adviser confirmed that he considered the complaint had been dealt with fully and that an independent review should not be convened.
4 March In a letter faxed to the Trust's secretary the lay chairman wrote: 'It would appear to me that all the clinical questions have been answered and there is no basis for the complaint and nothing, indeed, that an [independent review] could add to the case.'
26 March The convener wrote to Mrs A. Her short letter included: 'It is my view that the Trust has now clarified all the clinical questions you have raised and that there are no issues for independent review. This is the view also held by the senior clinician and the lay chair, and I am attaching a copy of their letters for your file. I am therefore turning down your request for an independent review.'
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Trust evidence
28. The Trust secretary's formal response to the complaint (paragraph 14) included:
'The Trust does not believe that the handling of the complaint was either dilatory or unsatisfactory. Clearly the complaint investigation took a long time to complete but there were a number of issues that needed to be addressed. On receipt of the request for an Independent Review an additional meeting was held with family members in an attempt to focus more precisely on their concerns. This was also an attempt to demonstrate that the Trust was committed to resolving the family's concerns and providing a satisfactory response.'
29. The complaints manager told the Ombudsman's investigator that she had held that post from 1995 to June 1998. Previously, there had been no dedicated complaints manager and she inherited a huge backlog of complaints, some of which were very old. With the help of one secretary she tried to reduce that backlog as well as deal with new complaints. Her role had been to deal with complaints up to when an independent review was requested. She would then pass all the papers to the Trust's Secretary.
30. The complaints manager said that the initial delay in sending Mrs A's complaint to the consultant and the ward manager was due to the late May Bank Holiday and herself and the secretary both taking some leave. She would normally have given the staff two weeks to respond but may have given them longer because Mrs A's complaint was very complex. On receiving the consultant's response she consulted the chief executive; and, due to the complexity of the complaint and the fact that it involved a bereavement, he agreed that a meeting should be offered rather than sending a written response at that stage. The meeting held on 4 November had been fairly adversarial. The family centred their concerns on the consultant, who was adamant that his team had done everything clinically that they should have done for Mrs B: he stated that fairly forcefully.
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31. The Trust's Secretary said that he had worked for the Trust and its predecessors for nearly 30 years. Until 1994 he had been the general manager of the acute hospital and had then semi-retired. He returned on a part time basis covering three posts: general manager, legal services; general manager, patient relations; and from early 1997, Trust secretary. As general manager patient relations, he was responsible for reviewing complaints at local resolution stage if there was a large element of clinical judgement involved or if they might lead to litigation. As Trust Secretary, he was responsible for managing the convening process for all complaints. The Trust's aim in respect of complaints was primarily to satisfy the complainants, even if actions in addition to the NHS complaints procedure were required in order to achieve that.
32. The Trust's secretary said that he had not been aware of Mrs A's complaint until her request for an independent review was received on 1 December 1997. Although his letter of 4 December to Mrs A stated that he had sent the papers to the convener that day, he thought there must have been an oversight and that he did not actually send the papers to the convener until January. He requested a lay chairman and a clinical adviser before he sent the papers to the convener because he tried to anticipate what the convener and the lay chairman would want. He knew it was the convener's policy to go outside the Trust for clinical advice.
33. The Trust's secretary said that he offered to meet the family in January in order to narrow down the number of issues being raised. It was not usual for him to meet complainants at that stage; but the complaint was complex and he had anticipated a delay in appointing a lay chairman because they had been in short supply at that time. He felt he could answer some of the family's points himself in the meantime. He accepted that that was supplementary to the complaints procedure, but his motive had been to offer some comfort. In the event a lay chairman was provided shortly after that. In his letter of 15 January to the convener he was trying to reflect the outcome of his discussion with the family, who were very bitter about the consultant. He did not normally write letters of that nature to the convener. He acknowledged that he might have exceeded his role in trying to show the relationship of the family with the consultant. The Trust's secretary said that he normally briefed clinical advisers on the convener's behalf to keep the process moving. The Trust sometimes acted as a post office for forwarding papers. The Trust had only one convener and she was very busy. Delays occurred due to her inability to look at complaints quickly.
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34. The convener said that she estimated that she spent an average of three days a month on convening duties. She felt there was never enough time to do everything adequately. There had originally been two conveners. When one left he had not been replaced as there had not been many requests for independent reviews at that time. She was currently urging the Trust to appoint another convener. The convener said that when she received a request for an independent review she would first read the complainant's letter and the background papers, and jot down what she considered to be the main points. In Mrs A's case she had already done this when she received the Trust's secretary's letter of 15 January. She said that the Trust's secretary did not normally offer her the kind of advice it contained.
35. The convener said that when the regional office supplied names of several clinical advisers she chose one based on advice from the Trust's secretary. She considered she was in a position to make a decision on Mrs A's request for an independent review only after she had seen the clinical adviser's second report. She genuinely felt that the medical advice was correct and that there were no grounds for an independent review. She accepted that NHS targets had not been met; but she felt that, sometimes, delays were due to the wish to provide a good service rather than just deal quickly with complaints in order to meet the targets.
36. The chief executive said that the Trust's performance in dealing with complaints had been poor during the period in question. He spoke to the complaints manager about the matter in the autumn of 1997. He was confident that current staffing levels in the complaints section were appropriate, and that any problems would now be brought to his attention. He said that the Trust's secretary did a lot work on behalf of the convener. However, the Trust's secretary was meticulous in ensuring that she agreed the wording of any letters which the Trust's secretary drafted on her behalf. The chief executive felt that the fact that the Trust's secretary had taken considerable action before passing the papers to the convener in this case was acceptable, although that had added to the delays. The chief executive said that he was not aware that the convener felt there was a need for another convener. He said that this case had taken too long but many of the delays could not have been avoided. He explained that 60% of complaints were now answered within the 20 days target, although he considered that was still not good enough. (Note: I have seen that the Trust's 1999/2000 business plan sets a target of 75% of complaints answered within 20 days by the third quarter.)
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Findings (e)
37. Local resolution of Mrs A's complaint took approximately six months; and, after she requested an independent review, it was a further four months before the convener's decision was notified to her. These times significantly exceed the targets set in the NHS Executive guidance (paragraph 26). The chief executive has acknowledged that during the period in question performance in dealing with complaints was poor. During local resolution the main delay was caused by the difficulties in arranging a meeting. I feel that a formal response might have been sent to Mrs A in July 1997; but, that notwithstanding, there were avoidable delays over this period. I am particularly concerned about the time it took to complete the convening stage, and I consider that, to a degree, the actions of the Trust's secretary contributed to that.
38. I appreciate that on occasions conveners require administrative support. However, it is essential that the convening stage is an independent component of the process, and is perceived as such by complainants. The NHS Executive guidance makes it plain that a request for an independent review should be passed to a convener immediately. It is unsatisfactory that although Mrs A was informed on 4 December 1997 that her request had been sent to the convener, it was not sent to her until a month later. I accept that the Trust's secretary acted with the best of intentions. But it is difficult to escape the conclusion that during the convening stage he was, at times, involved to a degree which could have compromised its independence. For example, it was not the Trust secretary's role to hold a meeting with Mrs A and her relatives. It is the convener's function, if necessary, to clarify a complaint; and if a convener, after consultation with the lay chair and obtaining independent clinical advice, considers that there are outstanding issues to address, the correct course is for the convener to refer the case back for further local resolution. I consider that the Trust secretary's letter of 15 January 1998 was inappropriate; and I am concerned about the extent and nature of his liaison with the clinical adviser and lay chair. I believe that he assumed responsibilities which properly fell to the convener to discharge.
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39. As for the content of certain replies which were sent to Mrs A, I consider that the chief executive's letter of 10 November 1997 did not deal fully with certain clinical issues; and bearing in mind the complex nature of the complaint I do not find that the convener's letter of 27 March 1998 fully and systematically explained why she did not consider that an independent review was not justified. I recommend that the Trust monitor closely their complaint handling to ensure that it is consistent with national guidance; and in particular, I recommend that they take positive steps to ensure that a more distinct line is drawn between the end of local resolution and the convening stage. I uphold this complaint.
Conclusions
40. I have set out my findings in paragraphs 9, 17, 23 and 37-39. The Trust have asked me to convey—as I do through my report—their apologies to Mrs A for the shortcomings I have identified, and they have agreed to act on my recommendations in paragraphs 17 and 39.
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Annex A to E.926/98-99
Professional Assessors' Report
Matters considered
1. The matters considered were:
(a) Whether the consultant physician responsible for Mrs B's clinical care failed to recognise and act on her deteriorating condition;
(b) That no active treatment was provided and no anticoagulant therapy or physiotherapy was given in order to reduce the risk of blood clotting;
(c) That a decision not to resuscitate Mrs B in the event of cardiac arrest was not discussed with, or disclosed to, her relatives;
(d) Mrs B's relatives have not received a satisfactory explanation as to the precise cause of her death.
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Basis of report
2. We have considered the following material:
i) Copies of Mrs B's medical records, including ERCP results;
ii) Copies of the Trust's complaints file, including reports prepared by staff during the Trust's investigation of the complaint, and correspondence with the family;
iii) The Trust's formal response to the statement of complaint;
iv) Copies of the Trust's resuscitation policy;
v) Notes of an interview with Mrs A;
vi) Notes of interviews with Trust staff;
vii) Notes of an interview with the pathologist who conducted the post mortem on Mrs B.
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Findings
3. Mrs B was admitted to hospital on 19 February 1997, after undergoing an ERCP to try and identify a possible structural abnormality in the pancreas (a glandular organ which produces enzymes involved in the digestion of fats and proteins) responsible for her bouts of chronic relapsing pancreatitis (inflammation of the pancreas). The x-rays taken at the time of the ERCP have been examined and do identify classical changes of pancreatitis.
4. The clinical assessment of Mrs B's condition on admission to hospital on 19 February was entirely satisfactory and following appropriate investigations, a diagnosis of pancreatic ascites (accumulation of fluid in the abdominal cavity) was made which is a well recognised and serious complication of chronic pancreatitis.
5. It was also quite appropriate for Mrs B to be considered for referral to a specialist centre for further investigation as her pancreatitis was clearly becoming a serious relapsing problem and more specialised investigations were necessary which could only be provided in a specialist hospital.
6. During a previous admission to a separate department of the hospital, Mrs B had been treated with prophylactic heparin (a drug to prevent blood clotting), but we do not believe that this would have been appropriate during her last admission because her pancreatitis had clearly deteriorated and in the presence of pancreatic ascites and active inflammation, most gastroenterologists would feel that prophylactic heparinisation was not appropriate because of the risks of causing a haemorrhagic pancreatitis (bleeding into the substance of the pancreas). The status of the patient when admitted with pancreatic ascites as a complication of chronic pancreatitis, was quite different to that in which she had been admitted to a surgical ward during 1996 and therefore it is not reasonable to expect that prophylactic heparinisation would have been given on her last admission. In addition, there was no indication for physiotherapy and we do no believe that any form of physiotherapy would have prevented Mrs B's pulmonary embolism immediately before death.
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7. Prior to the 3 March 1997, there was no evidence that Mrs B had any acute neurological signs, but on the morning of 3 March she clearly developed acute hemiparesis (weakness of one half of the body), and was examined within a few hours by the consultant physician in the department, who made a clinical diagnosis of an acute cerebral vascular accident (a stroke).
8. Although the cerebral computed tomography (CT) scan performed later that day did not show any focal changes, it is well recognised that in patients with cerebral thrombosis causing cerebral infarction (a blood clot in an artery which cuts off the blood supply and causes the death of a section of brain tissue), there may be no apparent changes on the CT scan performed within a few hours of the acute event and indeed it is quite common practice to repeat cerebral CT scans in patients with strokes up to a week after the event in an attempt to identify the area of brain which had been damaged.
9. The post mortem findings of 'softening of the brain' would be quite compatible with a recent onset cerebral infarct and we are therefore satisfied that Mrs B did have an acute neurological event causing a hemiparesis.
10. Prophylactic heparinisation would not have prevented this stroke and would only prevent thrombosis in the venous circulation.
11. Her subsequent decline was compatible with a large acute cerebral vascular accident and we believe that the pulmonary embolism (a blood clot in the pulmonary artery) which was found at post mortem was a terminal event (ie, one that contributed to her death but was not the sole cause) and it would certainly not have been appropriate for Mrs B to have been heparinised after the onset of her stroke because of the risk of causing acute haemorrhage into the already damaged area.
12. With regard to the 'do not resuscitate' (DNR) order, we believe that the decision not to resuscitate was reasonably taken after a clinical diagnosis of a dense left sided hemiparesis had been made. The DNR decision did follow standard guidelines because in the circumstances, that pertained at the time, successful cardiopulmonary resuscitation would have been very unlikely to be followed by a length and quality of life which would be acceptable to the patient. The overall responsibility for the DNR decision rested with the consultant. When such a decision is made in a patient who is not able to deal with the issues rationally, then it is good practice for other members of the medical and nursing team, and the patients relatives or close friends, to be involved, but in the end the responsibility rests with the consultant in charge of the case.
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13. It may not be possible in all circumstances for patients to be involved in discussions on DNR orders, if the patient is too ill to take part in such a discussion, and accepting that the next of kin have no legal right to consent or refuse consent for DNR, good medical practice would still suggest that the opinion of the family, or others close to a patient, should be sought regarding the patient's best interests. In Mrs B's case, it was clinically appropriate for the DNR order to be made after she developed clinical signs of a dense stroke from which she would be unlikely to recover, but it would have been helpful for the consultant and team looking after her, to discuss the DNR decision with her family. We must, however, reiterate that the final decision concerning the DNR order, would have rested with the consultant in charge of her case.
Conclusions
14. We believe, therefore, that the admission and management of Mrs B's pancreatic ascites and chronic pancreatitis, which are difficult and serious clinical problems, were appropriate and indeed the supervising consultant did recognise this and planned to refer the patient to a specialist hospital for further advice on her care.
15. The stroke from which she suffered could not have been foreseen or prevented and it was this acute cerebral vascular accident that caused her severe decline in health. The pulmonary embolism which was found at post mortem was a major contributing factor to her death and as stated previously, we do not believe that this could have been prevented.
16. Finally, we would regard it as common practice, that where a 'do not resuscitate' order is made, this decision should be discussed with the patient's next of kin, which was not done in this case and we would recommend that the Trust needs to have clear guidelines on this issue for consultants and their junior staff.
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