Walsall Healthcare NHS Trust

2. Miss E complains about the care and treatment her mother, Mrs A, received from the Trust from 6 January 2021 to a few weeks later when she died.

3. Miss E complains the Trust:

Clinical care

• failed to put Mrs A in a side room (knowing how vulnerable she was) to protect her from catching COVID-19 • failed to adequately monitor Mrs A’s blood sugars and diabetes • failed to apply compression stockings • failed to check and carry out regular observations on Mrs A given her condition and comorbidities • failed to provide oral care • when diagnosed with COVID-19, said Mrs A would be kept in a side room and monitored closely, but she was not, and • failed to follow the correct process in deciding not to resuscitate Mrs A.

Records

• states in its records it had spoken to the family and they agreed not to resuscitate Mrs A, which is not true • ticked to say Mrs A received oral care when she did not • failed to keep a record of the doctor who told the family Mrs A would be kept in a side room and monitored closely, and • failed to keep records of what happened to Mrs A on the day she died.

Communication

• failed to inform Mrs A she had COVID-19 and delayed telling the family until the next day • were rude and dismissive when the family asked questions about Mrs A and her care, and • kept telling the family Mrs A was ‘OK’ when she was not.

Impact 4. Miss E says failing to put Mrs A in a side room led her to catch COVID-19 and she died. Miss E says, given how vulnerable Mrs A was and her comorbidities, more should have been done to protect her, and the Trust let her down. Miss E says the Trust’s failure to properly monitor Mrs A’s blood sugars and diabetes delayed earlier intervention and treatment and caused her discomfort.

5. The failure to apply compression stockings led to Mrs A’s legs swelling and caused her additional pain and suffering. The failure to provide oral care led to dryness and cracking of her lips, tongue and inner cheeks. This was very distressing and upsetting for the family to see, and Miss E says that, given the condition of Mrs A’s mouth, this is not something that could have happened overnight.

6. Miss E says Mrs A should have been checked more regularly than every six hours, given her condition and medical history. Miss E feels if the Trust had carried out more regular checks, it may have picked up on any important changes sooner, treated Mrs A accordingly and she may not have died.

7. When the Trust told Miss E that Mrs A had COVID-19, Miss E wanted to bring her home so she could be with her loved ones and not suffer alone at this time. Mrs A was also mourning the loss of her own mother who had just died. Miss E says a doctor told her Mrs A would be kept in a side room, monitored closely and would get the treatment she needed. Miss E says this is reflected in the medical records, but it did not happen. Miss E says this caused her and the family to feel misinformed, denied the family the opportunity to bring Mrs A home and denied Mrs A the chance of a better outcome.

8. Miss E says the Trust failed to follow the correct process in deciding not to resuscitate Mrs A and, even now, she does not know how it came to this decision. Miss E says the Trust did not communicate with anyone in the family about this or include them in the decision-making process. She feels things should have been explained properly and finds this extremely distressing and upsetting.

9. In terms of record-keeping, Miss E says the Trust stated it spoke to the family and they agreed with the decision not to resuscitate Mrs A, but this is a complete fabrication. Miss E says no one spoke to the family and everyone is deeply upset the Trust has documented something which is not true. Miss E says this entry has been signed off by two clinicians and this has left everyone feeling concerned incorrect information can be documented in medical records. She says this is made worse by the Trust ticking to say Mrs A received oral care (even while the family were present) when she did not. Miss E and her family now question the validity of the rest of Mrs A’s records and have lost faith and trust in the Hospital.

10. Miss E and her family are extremely frustrated there is no record of the doctor who said Mrs A would be put in a side room (after being diagnosed with COVID-19) and monitored closely. They cannot accept the Trust has not been able to find this doctor. It has caused the family a lot of stress and has left them with unanswered questions. They are also saddened there are no records of what happened to Mrs A in January 2021 when she died, and they are distressed that they don’t know what happened to her. All this has stopped the family from being able to move on and they continue to feel distressed about the situation.

11. Miss E says the Trust’s poor communication and rude and dismissive staff caused further upset and frustration at what was already a very difficult time, and telling everybody Mrs A was ‘OK’ and would be kept in a side room to be monitored closely gave a false sense of security and denied the family the opportunity to bring her home.

12. Miss E is looking for an explanation and an apology from the Trust. She also wants service improvements to prevent the same things from happening to anyone else.

13. Mrs A was diagnosed with pancreatic cancer in 2017. She had major surgery and was given the all-clear up until March 2020 when it was found the cancer had returned.

14. In October/November 2020 the cancer was found to have spread to her liver. Mrs A was in a lot of pain and, as the weeks passed, she began to eat less and lose weight. She was in so much pain she could hardly walk and had to use a wheelchair.

15. On 6 January 2021, Miss E took Mrs A to the cancer care unit and A&E. Miss E was told Mrs A needed to be admitted because she was dehydrated, malnourished and had an infection.

16. Mrs A was tested for COVID–19 and the result was negative.

17. Mrs A was taken to the Acute Medical Unit (AMU) and Miss E stayed the night with her. Mrs A received intravenous antibiotics and seemed better and more alert on 7 January. The cancer nurse and the diabetic nurse saw her and, although bedbound, she could hold a cup and feed herself.

18. Mrs A was due to have a feeding tube fitted on 12 January. A temporary tube was fitted on 7 January and she was transferred from the AMU to a ward.

19. Miss E says she made several phone calls throughout the day and the Trust reassured her Mrs A would be put in a bay where all the patients had tested negative for COVID-19. Miss E says she was very concerned about this because Mrs A was already battling cancer.

20. Miss E’s sister had stayed the night with Mrs A. Staff told her she had to leave and Mrs A was not allowed any further visits, despite the fact that Miss E and her sister had already stayed overnight.

21. It is from this point on Miss E believes the Trust neglected Mrs A.

22. Miss E says her mum spoke to her, her sisters and her partner every day, saying she wanted to come home but had to stay in Trust until she had the feeding tube fitted on the 12 January.

23. On 10 January the family were told all observations were OK but the Trust still didn’t know where the infection was. This was the same on 11 January when Mrs A started to refuse her medication.

24. The family continued to call the ward regularly to ask how Mrs A was, but staff repeatedly told them the nurse was busy and Mrs A was ‘OK’. By this point, Mrs A had stopped answering her mobile phone. The family only had the information the Trust provided and they found it very distressing to chase the ward for updates, not get them and not be able to speak to the nurse.

25. The feeding tube was fitted on 12 January. The family continued to call regularly and staff told them the observations were fine but Mrs A was occasionally refusing medication.

26. On 14 January Mrs A had a computerised tomography scan (a scan which combines a series of X-ray images taken from different angles around the body and uses computer processing to create cross-sectional images of the bones, blood vessels and soft tissues) and tested positive for COVID-19. Mrs A and the family were unaware of this positive test result until the following day when they were asked to come to the Trust to speak to a doctor.

27. On 15 January, Miss E and her sister went to the ward and went into a room with a consultant and a nurse.

28. Miss E says the doctor told them cancer had been found on Mrs A’s liver (which they already knew and had discussed several times when Mrs A was admitted). The doctor also told them Mrs A had tested positive for COVID-19 but she had not yet been told. The doctor said COVID-19 was everywhere in the Trust and was difficult to avoid. Miss E says the doctor said Mrs A was not experiencing any difficulties because of COVID-19 and the next step was to get her home as soon as possible, but she needed to be monitored over the weekend in case she developed any difficulties. The doctor said Mrs A would be put in a side room and monitored closely, but this did not happen.

29. Miss E and her sister asked if they could see Mrs A while they were at the Trust. They thought Mrs A looked better, and Miss E’s sister told her about her positive COVID-19 result.

30. Mrs A was very upset and wanted to go home. Miss E mentioned how upset and depressed Mrs A was to staff when she left and explained Mrs A had just lost her own mum in the same Trust a few days before. They were very worried about her mental health and the impact this could have on her getting better.

31. In mid-January Mrs A’s blood sugars were high. The nurse told Miss E that Mrs A had been given some insulin and was waiting to see a doctor before being given more.

32. A couple of days later, Mrs A’s blood sugars were still high despite being given insulin.

33. Miss E asked whether Mrs A could come home but staff told her Mrs A’s blood sugars had started rising on 8 January and were still high. Miss E was frustrated by this as every time she had asked, she was told Mrs A’s observations and blood sugars were fine. Miss E was annoyed it took Mrs A’s blood sugars being high before the diabetic nurse put a plan in place.

34. In the second half of January Miss E spoke to the ward and it said it was just waiting for medications from the pharmacy before discharging Mrs A. A nurse came to take Mrs A’s catheter line out and said if she became strong enough, she could restart chemotherapy. Miss E says the nurse told her Mrs A’s observations were OK and her blood sugar levels had come down. She was not showing signs of COVID-19 but she was still very sleepy.

35. Miss E kept calling for an update throughout the day, but there was still no medication from the pharmacy. At around 5.50pm, Miss E received a call saying her mum had taken a turn for the worse, her breathing was compromised and the family needed to come to the Trust. Miss E asked if Mrs A had been given oxygen and the Trust said no but it could do that if she wanted it to. Miss E called her sister and her mum’s partner and they all went to the Trust.

36. When they saw Mrs A they broke down. Mrs A’s mouth was a mess and she was making a moaning noise; her head was to the side and her eyes were rolling back. They stayed by her bedside and spoke to her. Miss E says each time they spoke to her she squeezed their hand. A nurse told Miss E she had spent all day with her mum. The nurse said she had been reading messages to Mrs A off her phone which had been sent by family and friends and a letter Miss E had written to her a few days earlier.

37. This made Miss E question whether her mum had deteriorated sooner but they were not made aware. Miss E asked the palliative nurse who came if Mrs A was in pain and the nurse said no.

38. Miss E says around 30 minutes later Mrs A’s breathing and moaning settled (she had been given morphine) and she was moved into a side room.

39. The family continued to stay by her bedside. Mrs A’s breathing became fainter so they called for a nurse, who started to move Mrs A’s legs and arms and lay her flat, saying it would be too hard to do once she died.

40. Mrs A died shortly afterwards.

41. The cause of death on the death certificate states COVID-19, pneumonia, pancreatic cancer and secondary liver cancer.

43. The law says a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good reason to do so.

44. We have discussed this with Miss E to understand why she could not come to us sooner. We have also considered the time the Trust has taken to respond to her complaint.

45. Time consideration

• Mrs A was admitted to the Trust on 6 January 2021.

• She died in the Trust a few weeks later.

• Miss E requested a copy of Mrs A’s Trust records on 9 February 2021.

• Miss E complained to the Trust on 13 April 2021. Miss E says she still had not received the Trust records at this point but did not want to delay making her complaint any longer.

• Miss E says she received a copy of the records after she complained but before she received the 27 May 2021 response below.

• The Trust responded on 27 May 2021 and directed Miss E to us if she remained unhappy.

• Miss E raised further concerns and there was a local resolution meeting on 23 September 2021.

• Miss E approached us in November 2021 and we advised the complaint was premature. We told her we require a final response to be able to look at the complaint and she should return when she had this.

• The Trust provided its final response on 24 November 2021 and again directed Miss E to us if she remained unhappy.

• Miss E received the final response on 1 December 2021.

• Miss E made a telephone call to the Trust but it said it could not help her any further.

• Miss E submitted her completed complaint form to us on 8 March 2022 and provided a copy of the final response from the Trust.

46. Part 2.234 of our Service Model Guidance (main guidance) says we must consider the time limit in every case before deciding to investigate.

47. Part 2.235 states: ‘For health complaints, the aggrieved must refer the complaint to us within one year from the day they first became aware that they had a reason to complain (Legal requirement).’

Date of knowledge

48. Mrs A was admitted on 6 January and she died a few weeks later. The family visited Mrs A in the second half of January and were concerned about her presentation, how she had been treated and the lack of information provided to them about her health.

49. We therefore assess the second half of January to be Miss E’s latest date of knowledge about the care and treatment Mrs A received between 6 January and her death later that month, and about how the Trust communicated with her and the family.

50. Miss E requested a copy of Mrs A’s medical records from the Trust on 9 February 2021. This further shows she felt something was not right and had cause to complain.

51. We accept Miss E approached us in November 2021. We opened a file and then closed it because the complaint was not properly made and was premature (she had not yet received a final response).

52. We advised Miss E the complaint was not ready for us and she needed to get a final response before we could consider it any further.

53. Miss E did not come back to us with the final response and her completed complaint form until 8 March 2022. This makes the complaint almost two months out of time.

Complainants’ reasons for delay

54. Miss E says she delayed coming to us because she was grieving the loss of Mrs A. She says when Mrs A died, she had to organise the funeral, the house and all her other assets. She was also waiting for Mrs A’s medical notes, which she requested in February 2021.

55. We appreciate Miss E did not want to wait any longer to complain and did so in April 2021, without having received the records. Miss E has confirmed she received the records shortly after complaining but before the Trust’s response dated 27 May 2021.

56. Miss E says the time the Trust’s complaint handling took caused a delay and she did not receive her final response until 1 December 2021. She says she tried to contact the Trust by telephone after receiving this, which took a few weeks. When she finally spoke to someone at the Trust, they told her the Trust could not help her any further.

57. Miss E says she then spent time going through the paperwork, responses and medical notes trying to make sense of everything, before coming to us in March 2022.

58. Miss E also says she thought she had a year from receiving the final response to complain to us.

Time taken for the Trust’s complaint handling

59. Miss E requested medical records from the Trust in February 2021, less than a month after her mother died.

60. She initiated her complaint on 13 April 2021, three months after her mother died.

61. The Trust responded on 27 May 2021 and directed her to us. This means the Trust responded just over a month after she raised her complaint and shows Miss E was aware of our services in May 2021.

62. It appears Miss E was not happy with the response she received and had further concerns as there was a local resolution meeting on 23 September 2021.

63. Following this meeting, Miss E received the Trust’s final response on 1 December 2021, just over two months after the meeting.

Analysis

64. As noted above, the law says we can only look into complaints when the person has complained to us within one year of becoming aware they had reason to complain. We can set this time limit aside if we think there is a good reason to do so. Based on the reasons Miss E has provided, we do not believe we would be able to justify putting the time limit aside in this case.

65. One of the reasons Miss E says she delayed coming to us was the time the Trust’s complaint handling took. We appreciate Miss E’s frustrations and we have taken this into account below.

66. Section 14 of the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 states an organisation should respond to a complaint within six months.

67. Miss E complained to the Trust on 13 April 2021 and the Trust responded just over a month later on 27 May 2021. This is within the six-month time limit provided by the above regulations.

68. Miss E raised further concerns, and a local resolution meeting took place on 23 September 2021. The Trust provided its final response on 24 November 2021, which Miss E received on 1 December 2021. The Trust had again responded within the six-month time limit.

69. We accept Miss E came to us on 5 November 2021 and we told her the complaint was not ready for us as she had not yet received the final response from the Trust. We advised Miss E to come back to us once she had received this.

70. Miss E received the final response from the Trust on 1 December 2021. She came back to us on 8 March 2022, meaning she did not approach us until three months after she received the response.

71. Taking this into account, we do not believe we are able to justify putting the time limit aside based on the Trust’s complaint handling process or to say with confidence the delays were outside Miss E’s control. The Trust responded to Miss E in a timely manner and within the six months provided by the regulations.

72. Miss E says she did not formally complain to the Trust until 13 April 2021 because she was waiting for the medical records. She says the medical records had still not arrived by the time she put her complaint in, but she did not want to wait any longer.

73. Taking the second half of January as the date she knew she could make a complaint, Miss E complained to the Trust three months after her mother died and to us approximately 14 months after her mother died. This means the complaint falls outside our 12-month time limit.

74. While we accept Miss E was waiting for the medical records before starting the complaints process, we do not believe it was necessary for her to obtain these before she complained to the Trust or to us about the care Mrs A received and the issues the family experienced with communication. Miss E then decided to provide her complaint to the Trust before receiving the medical records, which shows this was not a requirement.

75. We accept Miss E was grieving following the death of Mrs A and it would not have been easy to raise the complaint. We feel the three-month period that passed from when her mother died to when she initiated the complaint with the Trust was reasonable. Miss E was also able to engage in the complaints handling process and was able to come to us in November 2021. It also shows she had the ability to complain to us soon after receiving the final trust response in December 2021.

76. We recognise Miss E may not have been aware of our services in April 2021 and she thought she had one year to complain from the date she received the final response. She was provided with our details in the Trust’s response dated 27 May 2021 and had the opportunity to come to us at that point to ask about our service.

77. Miss E did not do this. She returned to the Trust, had a local resolution meeting in September 2021 and came to us in November 2021. We closed the complaint as premature because she had not received a final response from the Trust.

78. Miss E should have come to us in December 2021 when she received her final response. If she had done this, her complaint would have been in time for us to look at. Miss E attempted to contact the Trust again and did not come back to us until three months later in March 2022.

79. When discussing this delay with Miss E and why she did not come to us sooner, she says she was going through all the paperwork and Mrs A’s medical records.

80. We have considered this and the fact Miss E said she thought she had 12 months from when she received her final response to complain. We do not feel this is enough to justify us putting our time limit aside.

81. Information on our complaints process is clearly detailed on our website, including how to complain during the pandemic.

82. If Miss E felt she could not bring the complaint herself, she could have approached an advocate for further advice. The advocate would have explained the complaints process to her and helped her make sure her concerns were raised in time. Miss E could also have asked a friend or family member to help if she preferred.

Conclusion

83. We accept Miss E has been through an incredibly difficult time and our decision is not meant to take away from Miss E that she has cause to complain. By law, we cannot look at the complaint any further as it falls outside our time limit. It also becomes difficult to investigate a complaint after 12 months as it can be harder to obtain evidence and the recollection of parties may be weaker.

Medical records

84. Before we decide if we should investigate a complaint, we look at whether there is an organisation better placed to deal with the concerns raised. Some complaints can be looked at by us and by other organisations. We have considered whether another organisation is better suited to give an answer to the complaint and whether it can provide the outcome Miss E is looking for.

The Information Commissioner’s Office (ICO)

85. The ICO is an independent body set up to uphold information rights in the public interest. Part of the ICO’s role is to improve the information rights practices of organisations by gathering and dealing with concerns and complaints from members of the public. If a member of the public is concerned about an organisation’s information rights practices, they can report it to the ICO. Miss E has raised concerns about the accuracy of Mrs A’s medical records.

86. The ICO has the ability to put things right by advising or instructing an organisation to improve its data practices. In some cases, the ICO can issue enforcement action such as fines.

87. Any action the ICO takes is intended to improve data practices rather than to remedy a complaint for the person affected. It cannot achieve a financial outcome for a complainant.

88. We accept compensation is not something Miss E has asked for as an outcome to her complaint. Miss E’s main intended outcome is service improvements to ensure this does not happen to anyone else. It therefore seems the ICO is the most suitable organisation to investigate the way the Trust has handled and recorded Mrs A’s data (medical records).

89. In some cases, the ICO will collate further information on similar issues, looking at the concerns brought to it alongside others which have been raised about the organisation. All concerns raised contribute to its understanding of an organisation’s performance against its duties and help the ICO to decide on any improvements it might expect the organisation to make.

Is it reasonable to pursue?

90. We discussed the ICO with Miss E in terms of the concerns she has raised about Mrs A’s records. She was open to this conversation and said she would go down this route if it is more appropriate.

91. We explained the ICO has more powers than we do in terms of data and explained her rights to challenge the accuracy of the personal data (records) held about Mrs A.

92. The ICO can take a range of actions, including:

• information notices • enforcement notices (which require an organisation to take, or not take, particular steps or actions) • penalty notices • inspection powers.

93. We do not have these powers.

94. Miss E said she is happy to approach the ICO and did not mention anything which would prevent her from doing so.

95. As the complaint is better suited to the ICO, we will direct Miss E to it and provide her with some contact information.

96. If there are any issues regarding the medical records which Miss E has not specifically raised with the Trust, the ICO may still ask her to raise these specific points before it considers her complaint.

97. As with us, the ICO’s service standards say a complainant should have raised their complaint to the organisation first: ‘Before reporting a complaint to us, we expect you to give the organisation the opportunity to consider it first. In order for us to look at their information rights practices we need you to provide us with their reply.’

ICO time limits

98. The ICO’s service standards say a complainant should raise their complaint to them within three months of receiving a final response: ‘If you do want to raise concerns about an organisation then we suggest that you do so within three months of receiving their final response to the issues raised. Waiting longer than that can affect the decisions that we reach. In some cases, an undue delay will mean that we will not consider the matter at all.’

99. We understand the ICO, like us, has flexibility when deciding if a complaint is in time. It would be up to the ICO to determine if the complaint is in time and, if not, whether it is appropriate for the ICO to use its discretion and put the time limit aside.

100. Miss E has the information she needs to pursue her complaint with the ICO and can make this complaint herself. She does not need our involvement to pursue it. If Miss E wants to complain to the ICO, we would encourage her to do this as soon as possible.

Conclusion

101. As the main outcomes Miss E is looking for are service improvements and for the Trust to be held accountable for its mistakes, it is appropriate for her to take this part of her complaint forward and approach the ICO.

102. We recognise she is also looking for an explanation, which is something she could get as a by-product of the ICO investigating.

103. Our Service Model Guidance 3.1 says some complaints can be looked at by both us and another complaints handler. We would usually consider, though, that only one investigation should take place.

104. We think the ICO is more appropriately placed to consider the complaint and achieve the outcome she wants. On this basis, we should not investigate this part of the complaint any further.

105. We appreciate the time Miss E has taken in bringing her complaint to us and we thank her for doing so. We recognise this may not have been the outcome Miss E had hoped for in coming to us and we hope we have clearly explained the reasons for our decision.

1. The Parliamentary and Health Service Ombudsman has carefully considered Miss E’s complaint about Walsall Healthcare NHS Trust (the Trust). We have decided part of the complaint falls outside our time limit and there is an alternative resolution forum for the other. We appreciate the huge impact the events have had and continue to have on Miss E and her family. We cannot begin to imagine the emotional distress they have been going through.