Deprivation of Liberty Safeguards (DoLS)
14. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and, we have not found any indications that something has gone wrong in relation to the DoLS.
15. Mrs E says that she has concerns that the DoLS was not implemented at the right time. The DoLS is designed to protect a person’s rights, should they be deprived of their liberty in a hospital or care setting and have a lack of capacity to give their consent. Mrs E thinks this should have been in place from 14 February 2020. She thinks this may have resulted in greater safeguarding measures for her father and prevented the fall.
16. The Trust said it discussed the potential need for a DoLS with Mrs E on 13 February, while Mr B was on the surgical ward. The Trust explained it transferred Mr B to another ward on 14 February. The Trust also explained that staff reviewed him and found a DoLS did not need to be put in place. Over 16 and 17 February, he became more confused. The Trust explained a DoLS was put in place on 17 February, as he was assessed as being at high risk of falls.
17. A mental capacity assessment was completed on 22 March 2020.
18. The Mental Capacity (Amendment) Act 2019: Liberty Protection Safeguards (the Mental Capacity Act) says a deprivation of a person’s liberty should always be viewed of as a last resort. This means DoLS should only be applied when a person, aged 16 or above, lacks the mental capacity to consent to their own treatment and needs to be deprived of their liberty to enable their care or treatment to be delivered.
19. We asked our nursing adviser what we would expect to see here. Our adviser explained that the deprivation of a person’s liberty should be a last resort and should only be applied when a person lacks the capacity to consent to treatment.
20. Mr B was admitted to hospital on 07 February 2020, following a short history of reduced mobility and increased confusion. We can see he was receptive to treatment and to the support the Trust provided for his mobility, hygiene, and nutrition. This supports the view that he was able to consent to treatment at that time.
21. Mr B was at high risk of falls, and our adviser explained that interventions were put in place to manage this risk. This involved moving him to a cohort bay, referring him to the dementia lead nurse, as well as occupational therapy and physiotherapy assessments.
22. On 15 February 2020, a doctor documented that DoLS was considered, but it was felt that it was not needed. On 17 February 2020, Mr B became increasingly more agitated. He was moved to a cohort bay which allowed for enhanced visibility, and with a member of the nursing team in the bay at all times. Mr B sadly had a fall on the morning of 17 February and DoLS was completed shortly after this.
23. While DoLS was considered in line with the Mental Capacity Act on 14 February, there is no indication that DoLS was needed before 17 February 2020. This is because Mr B was interacting with staff and his behaviours suggested he still had capacity. He needed a DoLS after 17 February though, as he had a fall and needed further support.
24. We appreciate Mrs E is concerned that her father had a fall in hospital and feels this could have been prevented with the use of the DoLS. We have not seen anything to suggest the DoLS was implemented at the wrong time. The Trust used this in line with the Mental Capacity Act when they found it was needed. Therefore, we have seen no indication of a failing.
Fall
25. Before we decide if we should investigate a complaint, we look at whether there are signs the events complained about had a negative effect which the organisation has not put right. We have done this, and we have found the Trust can take steps to put right the impact of these events.
26. Mrs E says Mr B had a fall on 17 February 2020, and she complains that the Trust did not investigate his pain and distress following this. She explains this is because the Trust classified it as an assisted fall but did not implement its falls procedure correctly.
27. Mrs E says that although the Trust say they cannot know when the fall happened, the timing is clear to the family from their daily visits, and information in her father’s records. Mrs E says that the Trust are disputing this based on one entry in his physiotherapy record on 10 February that mentions pain in his right leg. She feels this is very unlikely.
28. The Trust said a health care assistant (HCA) assisted Mrs E’s father to the floor when he started to fall. Mr B caught his elbow against the bed, causing a skin tear. The Trust said it had identified him as being at high risk of falls and it had tried to meet his needs. The Trust explained it did have a falls risk assessment, and bedrails in place, prior to the fall taking place.
29. The Trust also said the fall he experienced is called an assisted fall but is still classed as a fall. It said the Deputy Ward Manager was not aware of this at the time and the post-fall protocol was not followed. However, it said a robust falls protocol is in place. It recognised the fall was not acknowledged, escalated, or actioned appropriately, meaning other members of Mr B’s Multi-Disciplinary Team (MDT) were not aware of any possible injury.
30. The Trust explained the ward sister, and matron for the care of the elderly, had discussed and reflected on the events to understand how falls are classified and how to manage patients after they have fallen. It also said they discussed the potential consequences of not following the correct procedure.
31. The medical records say Mr B was crying and swearing on 17 February 2020. It says they informed his daughter of his change in behaviour. On the same date, it said there was no leg trauma but that he had hip pain. It is not clear if this is in relation to the fall. Following this, the records show that he was in distress.
32. On 18 February, it is recorded that he kept calling out. It is reported that he still had hip pain and that he had fractured the neck of his femur.
33. The National Institute for Health and Care Excellence (NICE) guidance: Checks for injury after an inpatient fall, falls in old people (the NICE guidance) says Trusts should have a post-fall protocol. The guidance says there must be local arrangements in place to ensure that hospitals have a post-fall protocol that includes checks for signs or symptoms of injury, fracture, and potential for spinal injury, before the older person is moved. This can be by a nurse if the fall has been witnessed and there is no obvious injury or loss of consciousness.
34. The National Patient Safety Agency (NPSA) guidance: Slips, trips and falls in hospital (2007) (the NPSA guidance) says patients should be reviewed after a fall. This is because falls can be a sign that the patient’s condition has deteriorated further. Therefore, each fall should trigger a review of whether further interventions could reduce the risk of the patient falling again, including medical assessment where appropriate. Furthermore, an incident form should be completed. This is because a fall is a patient safety incident and should be reported. The purpose of incident reporting is to learn from incidents and to improve patient safety.
35. The Nursing and Midwifery Council (NMC) guidance: Openness and honesty when things go wrong, the professional duty of candour (the NMC guidance) says that nurses have a duty of candour. This means they must be open and transparent when things have gone wrong. The guidance says that they should speak to patients and family as soon as possible after things have gone wrong.
36. We asked our adviser what should have happened here. They explained that the NICE guidance says patients should be checked after a fall for injury so this is what we would have expected to see.
37. Our adviser also explained that the NPSA guidance says that patients who have a fall should be reviewed as this can be a sign that their condition is deteriorating. An incident form should have been completed to learn from what happened and improve patient safety. We would also expect the Trust to be open and accountable, in line with the NMC guidance.
38. Mr B fell on 17 February 2020. As it was witnessed by a staff member, it was not reported as a ‘fall’. This means the Trust’s post-falls protocol was not followed. He was not medically reviewed, and falls interventions were also not reviewed.
39. The NICE and NPSA guidance is clear that the Trust should have reviewed Mr B’s condition after the fall. However, the Trust did follow the NMC guidance by telling the family about this as soon as possible, on the morning of 17 February.
40. We cannot imagine how difficult it would be for the family to know their loved one had a fall and that his condition was not reviewed quickly after this. We have seen an indication of a failing and have looked at the impact of this below.
41. As a result of the fall, Mrs E says Mr B fractured the neck of femur, but that this was not discovered until a day later. She says he was left in unnecessary pain and that is distressing for her and her mother to know. She says he never recovered from the fall and the injury is referred to on the death certificate. She says this has compounded her grief.
42. The Trust has not recognised any impact of the delay in following the post-falls protocol in its complaint response. This is because it thinks it is unclear if Mr B’s injuries were a direct result of the fall on 17 February.
43. The Trust also say that the behaviours Mr B was displaying the next day are not that dissimilar to those exhibited before the fall. The Trust thinks there are also indications from the records that he might have experienced this injury at an earlier date.
44. We asked our nursing adviser what the likely impact of this indication of a failing would be. They explained that the impact was that a potential hip injury was not identified until later that day, and an X-ray was not carried out until 18 February 2020, a day later.
45. It is therefore likely he fractured the neck of femur when he fell, but he was not medically assessed following the fall, and he was not treated as quickly as he should have been.
46. The Trust’s post-falls protocol was not followed after Mr B’s fall on 17 February 2020. It is documented that he was suffering from hip pain during the ward round, five hours after the fall. The impact of not following the post-falls protocol was that Mr B was not medically reviewed post fall and his hip injury was not identified until the next day. This means he would have been in pain unnecessarily. This is likely to have caused his family members great distress to know that he suffered.
47. We have seen no indication that he died because of the hip injury not being identified until 18 February. However, we accept that the fall being referenced on the death certificate would have worsened Mrs E’s grief, given the background to this injury.
48. As we have seen, there is an impact linked to the indications of a failing, so we have looked to see if this has been remedied.
49. As an outcome, Mrs E wants an acknowledgment, an apology, and service improvements.
50. In its complaint response, the Trust acknowledged the post-fall protocol was not followed. However, it has not recognised the impact to Mrs E and her mother, who are left distressed at how this affected Mr B. It has also not apologised for this. Its response says the ward sister discussed the falls classification with the matron for care of the elderly, so they can understand how falls are classified, as well as the potential consequences of not recording a fall.
51. Our Principles for Remedy (2009) (our principles) say that a timely acknowledgement of issues and apologies will normally resolve a complaint. It also says that part of a remedy may be to ensure that changes are made to policies, procedures, systems, staff training or all of these, to ensure that the maladministration or poor service is not repeated. It is important to ensure that lessons learned are put into practice.
52. We consider the Trust has not acknowledged and apologised for the impact on Mrs E and Mrs B. It has also not put service improvements in place to prevent similar failings arising in the future. We approached the Trust to ask it to take this action and it has agreed to do so, therefore we consider this part of the complaint has been resolved.
Discharge
53. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and, we have not found any indications that something has gone wrong.
54. Mrs E complains the Trust discharged her late father, Mr B, too early. The Trust has not directly responded to this part of the complaint, but we have decided to cover this as it is linked to the issue about the fall.
55. The Department of Health (DoH) guidance: Ready to go? Planning the discharge and the transfer of patients from hospital and intermediate care (2010) (the DoH guidance) says discharge or care transfer is an essential part of care management in any setting. It ensures that health and social care systems are proactive in supporting individuals and their families and carers to either return home or transfer to another setting. The need for timely discharge and care transfer requires clinicians and others to plan, communicate, negotiate, and ensure a smooth transition for individuals and their families.
56. We asked our adviser what we would expect to see happen here. Our adviser explained that patients and carers should be involved throughout the discharge planning process. This is so that the Trust can make informed decisions and choices that deliver a personalised care pathway and maximise the patient’s independence.
57. Mr B lived at home with his wife, prior to his admission to hospital on 7 February 2020. We understand he was receiving input from occupational therapy and physiotherapy during his admission. Before Mr B’s fall on 17 February 2020, the plan was to discharge home with a package of care, safety pendent, and a key safe. He had failed his stair assessment and it was discussed if he could live downstairs at home. The Trust also referred him to the continence team.
58. After his fall, Mr B’s condition sadly declined. He would not comply with therapy and refused to mobilise with nursing staff. Mr B received end of life care from 23 March 2020 and sadly died on 29 March 2020 in hospital. Our adviser told us this means he was not discharged home.
59. We were very sorry to hear about the family’s loss and cannot imagine how difficult it would be to have a loved one die in hospital. We can see from this that the Trust did work with the family to ensure that they were informed. The Trust’s discharge planning was in line with the DoH guidance.
60. However, Mr B was not discharged because his condition declined after 17 February 2020, following his fall, and resulting fractured neck of his femur. Therefore, we have not seen any indication that something went wrong in relation to this aspect of the complaint.