Complaint issue 1 – The Trust put a DNACPR order in place for Mr S when it should not have done and failed to consult him and the family before making this decision.
25. Trust staff needed to consider two factors when putting the DNACPR order in place. The first was informing/consulting with Mr S and his family and the second is the appropriateness of the decision in relation to Mr S’s circumstances.
• The Trust put a DNACPR order in place for Mr S when it should not have done
26. CPR involves chest compressions, delivery of electric shocks from a defibrillator, injection of drugs, and ventilation of the lungs. CPR can work, although the success rate is low. Before deciding whether CPR is appropriate, doctors take into account the risks of CPR, which include damage to internal organs, rib fractures and possible brain damage because of lack of oxygen: If CPR is not successful, the patient might die in an undignified and distressing way. The Joint Guidance says the patient’s individual circumstances and the most up-to-date evidence and professional guidance must be considered carefully before any CPR decision is made.
27. The Joint Guidance advises medical teams making resuscitation decisions that:
• When CPR would not work it should not be offered, but the decision and reasons for it should be explained to the patient and the discussion clearly documented in the medical notes.
• While doctors should take account of patients’ wishes, or the views of those close to them about what their wishes would be, the ultimate decision is a medical one.
28. Following Mr S’s death, Trust staff told Mrs R the DNACPR decision had been based on the severity of Mr S’s illness, frailty and previous stroke. Mrs R told us of her concern Trust staff took too much account of Mr S having previously had a stroke when making the DNACPR decision. She said he had recovered from the stroke of September 2020.
29. Mrs R told us her husband wanted to live and had been in good health before catching Covid-19. She said doctors should not have put a DNACPR order in place as this denied Mr S the possibility of surviving if his heart and breathing stopped. We balanced this against the Trust’s response that the DNACPR decision was based on Mr S’s severe illness, frailty and previous stroke.
30. Our physician adviser said Mr S had made an excellent recovery from his stroke. Also, Mr S’s frailty score (a way to summarise the overall level of fitness or frailty of an older adult) was 3 (managing well – medical problems well controlled, but not regularly active beyond routine walking). Our physician adviser said it is unlikely Mr S’s previous stroke or frailty state would have had a substantial effect on a CPR outcome.
31. We therefore looked at the severity of Mr S’s illness as to whether a DNACPR order was appropriate in his case. Our physician adviser said the chances of CPR being successful were low because of the severity of Mr S’s infection (Covid pneumonia), strong likelihood of further deterioration, advanced age and being male. This aligns with the results of the study by Doherty at al in 2020, which notes that increasing age, being male and having a long term medical condition increases the risk of dying from Covid-19. The physician adviser said in light of Mr S’s circumstances, a DNACPR order was appropriate.
32. Mr S had a severe infection (characterised by severe breathing difficulties and low blood oxygen levels) and we have been advised it was appropriate for a DNACPR order to be in place. While there were failings in Trust staff consideration of Mr S’s health as to whether CPR would work, we do not find they amount to service failure. We find it was appropriate for Trust doctors to put a DNACPR order in place for Mr S, as he was so ill and his age and gender lowered the chance of CPR working even more.
33. We recognise the family have been distressed that Trust staff put a DNACPR order in place for Mr S. We hope Mrs R is reassured that the Trust’s decision was in keeping with medical guidance and Mr S’s condition, and we have not seen anything to suggest the DNACPR order was unreasonable.
34. We do not uphold this issue of complaint.
• Failure to consult about the DNACPR order
35. The management plan for Mr S on 5 January included ‘DNAR (do not attempt resuscitation) escalation to ITU’. Mrs R complains Trust doctors did not discuss the DNACPR order with Mr S or his family.
36. With regard to discussing a DNACPR order with Mr S, the Joint Guidance includes: ‘In relation to decisions about CPR … there should be a presumption in favour of patient involvement and that there needs to be convincing reasons not to involve the patient’ and ‘ For a person with capacity, where a clinician decides that CPR is not in the patient’s best interest, this decision must be sensitively discussed with the patient unless the individual refuses to discuss the decision, or it is considered that such information may be so distressing as to cause the person physical or psychological harm’.
37. The 8 January Resuscitation Plan for Mr S noted that he had capacity. Our physician adviser said there is no evidence to suggest Mr S lacked the mental capacity to engage in discussion or to make an informed decision at the time the DNACPR order was put in place.
38. During a local resolution meeting Trust staff told the family Mr S had been ‘too unwell to consult’ about the DNACPR. A Resuscitation Plan dated 5 January, notes Trust staff did not discuss DNACPR with Mr S as ‘Patient extremely tachypnoeic [rapid shallow breathing] on CPAP [a CPAP machine uses a hose connected to a mask or nosepiece to deliver constant and steady air pressure to help the patient breathe], limited ability to have a conversation’. It appears staff thought discussing a DNACPR might cause Mr S physical harm – so not discussing it with him would have been in line with the Joint Guidance. However, Mrs R disagrees and told us her husband was able to have telephone discussions with relatives at this time.
39. The NHS website information on DNACPR says ‘you must be told that a DNACPR form will be/has been completed for you … Doctors can only not tell you that a DNACPR form has been completed for you if they think doing so would cause you physical or psychological harm’. Even if staff felt Mr S could not manage a discussion about DNACPR, we have seen no documentary evidence they felt Mr S would be harmed by knowing about the DNACPR. They should have informed him, in line with the Joint Guidance, but failed to do so.
40. With regard to discussing a DNACPR order with Mr S’s family, the GMC’s end of life guidance includes ‘If you conclude that the patient does not wish to know about or discuss a DNACPR decision, you should seek their agreement to share with those close to them, with carers and with others, the information they may need to know in order to support the patient’s treatment and care’. The Resuscitation Plan for Mr S also included ‘to be discussed with patient and family at earliest opportunity’. However, this did not happen – Mr S was never told, and the family only found out about the DNACPR after Mr S had died. Mrs R told us family members had been available to speak with doctors, if needed. She said she would have told them Mr S and his family would have wanted staff to try CPR if his heart and breathing stopped.
41. The Trust said because of the large number of patients with Covid-19 it had not been possible to communicate with everyone. We do not underestimate the considerable pressure NHS staff experienced during the pandemic, and the difficult circumstances. Neither do we underestimate how difficult the issue of considering DNACPR can be. Nevertheless, it is an important right for patients and their families to be told when a DNACPR order is being considered and given the opportunity to discuss it with doctors.
42. For the reasons we have set out above we consider, based on what we have seen, Trust staff failed to act in line with the Joint Guidance, GMC guidance and their own treatment plan. Mr S and his family were denied the opportunity to be involved in the DNACPR decisionmaking. Nor were the family informed of the DNACPR order. This was service failure. This failing led to a further missed opportunity for Mr S and the family as Joint Guidance says ‘Patients may also want an opportunity to receive a second opinion should there be any disagreement’. We find this was service failure.
43. We have considered the impact of the Trust’s failure to consult with Mr S’s family about the DNACPR. In doing so we note the Trust has apologised to the family for not discussing the DNACPR decision with them. It does not appear to have recognised the missed opportunity for the family to talk through the issue and come to terms with how unwell Mr S was. We recognise Mr S’s death came as a big shock to his family and better communication about the DNACPR order might have helped them prepare. While the family might also have sought a second opinion, we have seen insufficient evidence to show a second opinion would have reached a different conclusion. On the balance of probability, it is likely, particularly in light of the clinical advice we have received, the DNACPR order would have been applied if a second opinion had been sought at the time of the events.
44. We therefore uphold this issue of complaint.
Complaint issue 2 – the Trust did not provide adequate nursing care – nurses did not respond when Mr S called for assistance, delayed giving him pain relieving medication and failed to provide adequate food and drink.
• Response to Mr S’s calls for assistance
45. Mrs R told us her husband had made several phone calls to family and friends during the evening of 10 January; he told them the nurses were not attending to his needs and although he kept calling the nurses, no one came. We recognise it must have been distressing for Mrs R to hear of this at a time when her husband was very unwell, and she was unable to visit him in hospital to see things for herself.
46. The Nursing and Midwifery Council’s (NMC’s) ‘The Code: Professional standards of practice and behaviour for nurses, midwifes and nursing associates’ (2018 version) tells nurses to ‘make sure you deliver the fundamentals of care effectively’ and ‘make sure that any treatment, assistance or care for which you are responsible is delivered without undue delay’.
47. It is not possible to say from Mr S’s clinical records if nurses always responded when he called for assistance. What we can say is nurses regularly reviewed Mr S in the Emergency Department on 5 January and on the ward between 6-11 January 2021. This is shown by entries in Mr S’s clinical records - the nursing evaluations, care rounds, activities of daily living charts and NEWS charts (National early warning score – a tool used by healthcare professionals to assess the clinical status of patients and detect early signs of deterioration). Mr S received regular interventions from nursing staff, in line with The Code.
48. The records show Mr S was placed in a side room, which he was unhappy with. He told nursing staff he found it difficult to get their attention. The records show it was planned to move him into a bay with other people. Mr S was nursed in a bay with a nurse present at all times from 8 January – so any calls for assistance should be noted straight away. Mr S’s nurse was caring for five patients, all on CPAP. Our nurse adviser said nurses have to prioritise care when they are caring for more than one patient at a time. It is therefore likely the nurse could not always respond straight away to Mr S’s calls for assistance.
49. We have considered the nurses’ entries in Mr S’s clinical records and Mrs R’s evidence. Based on what we have seen, on balance, there is insufficient evidence to say Trust staff did not respond to Mr S’s calls for assistance. Therefore, we do not uphold this issue of complaint
• Pain relieving medication
50. Mrs R complains nurses delayed giving Mr S pain relieving medication.
51. The Code says nurses should ‘take appropriate action to reduce or minimise pain or discomfort’ the NMC’s Future nurse: standards of proficiency for registered nurses (published in 2018) includes nurses should ‘observe and assess the need for intervention for people, families, carers, identify, assess and respond appropriately to uncontrolled symptoms and signs of distress including pain, nausea, thirst, constipation, agitation, anxiety and depression’.
52. NEWS includes that the symptom of pain should be recorded and responded to by the clinical team. Nursing staff gave Mr S paracetamol regularly from 5 to 8 January and then as a one off on the morning of 10 January. He was also prescribed oramorph for pain or increased work of breathing.
53. The nurse adviser said records showed Emergency Department nursing staff regularly asked Mr S if he was in pain on 5 and 6 January - he did not complain of pain. Mr S was then transferred to a ward. Nursing staff noted Mr S was pain free on 7 January, there is no reference to pain on 8 January, he was noted to be pain free on 9 January (Mr S was given oramorph at 4am, 10.15am and 11.30pm for increased work of breathing, not for pain) and there was no reference to pain on 10 January.
54. During the morning of 11 January, nursing staff asked Mr S if he was in pain and he said he was. Nursing staff gave him oramorph at 7am. Sadly, Mr S died at 8am while staff were repositioning him in bed.
55. Mr S’s clinical records show he did not display any signs of pain up until the morning of his death. Nurses did give him oramorph during his admission, but apart from on 11 January, this was to help with his breathing - although the nurse adviser said this would also have controlled any symptoms of pain.
56. We have looked carefully at Mrs R’s clinical records, and these show nursing staff regularly monitored whether Mr S was in pain and gave him paracetamol. When he did express pain on the morning of 11 January, the nurses gave him oramorph to treat this. It is understandable Mrs R is concerned her husband was in pain. We hope our provisional finding, that nurses followed the relevant NMC guidance by regularly checking whether Mr S was in pain and that he was given pain relief during his admission, reassures her on this point. We have found no failings in this regard and do not uphold this issue of complaint.
• Adequacy of food and drink provision
57. Mrs R complains nurses failed to provide adequate food and drink for Mr S.
58. The NICE guidance says all hospital in-patients should be screened for malnutrition when admitted and every week or when there is cause for clinical concern. Nutrition support should be considered for people who have eaten little or nothing for more than five days and /or are likely to eat little or nothing for the next five days or longer.
59. Mr S was not assessed for malnutrition in accordance with the NICE guidance. We find this to be a failing.
60. We have also considered the Trust’s handling of Mr S’s food intake during his admission. Mr S was on CPAP and would have been wearing a face mask most of the time - he would have needed encouragement and support with eating and drinking and there is evidence in Mr S’s clinical records this happened. Nursing staff started food and fluid intake charts when Mr S was transferred to a ward. This was appropriate and timely.
61. We have found the Trust failed to undertake a malnutrition risk assessment for Mr S. The nurse adviser said there was no impact from this - because Mr S’s intake was monitored and was good/reasonable on 7, 8, 9 and 10 January. We can see no injustice that flowed from this failing. We therefore partly uphold this issue of complaint.
62. With regard to fluid intake, nursing staff gave Mr S intravenous fluids when he was admitted. Nurses also encouraged him to drink. They monitored Mr S’s fluid intake on 7, 8 and 9 January and noted the drinks taken at mealtimes. Mr S did not drink much fluid on 8 and 9 January but the nurse adviser said his blood results do not show he was dehydrated (urea level is high in dehydration – Mr S’s was normal). We have found no failings relating to Mr S’s fluid intake, so do not uphold this issue of complaint.
Complaint issue 3 – the Trust told the family Mr S’s condition was improving when it was deteriorating.
63. The Code says that nurses must ‘communicate clearly’ and this should include checking people’s understanding to keep misunderstanding or mistakes to a minimum. We also recognise how important communication with staff was during the pandemic, for families who could not visit their loved ones in hospital, because of visiting restrictions.
64. Mrs R says the nurses told the family (on 10 January) Mr S’s condition was improving (he was off full oxygen) when it was deteriorating.
65. The NEWS scale assigns a score to a patient based on six physiological parameters - respiration rate, oxygen saturation, blood pressure, heart rate, level of consciousness, and temperature. The score is calculated through a 0-to-3-point system for each parameter, and two additional points are added if the patient is receiving oxygen therapy. The overall score ranges from 0 (no signs of deterioration) to 20 (severe deterioration). From 5 to 9 January, Mr S’s NEWS scores were generally between 5-7 indicating severe illness, apart from short periods on 7 and 8 January when scores of 2 and 3 were recorded. Between 10-11 January, Mr S’s scores became higher again and were generally between 7-8, suggesting deterioration.
66. The records show that on 10 January, staff told Mr S’s son his father had become confused, there were difficulties with his oxygen therapy, and he was very unwell. The records do not show staff told Mrs R her husband’s condition was improving.
67. Our physician adviser said the new onset confusion was evidence of Mr S’s condition deteriorating – but we have seen no evidence that staff told the family about the gravity of the situation and that Mr S’s condition was deteriorating.
68. We are unable to reconcile there being no mention in the medical records of staff telling the family Mr S was improving - with Mrs R’s evidence that they did. We considered what might have given rise to this discrepancy. It is possible staff did not fully explain they had switched Mr S from CPAP to High Flow oxygen while he could not tolerate CPAP, rather than it being a sign of improvement. If this was the case, it would not have been in line with the Code. But we are unable to reach a finding on this issue, so do not uphold it.
Complaint issue 4 – the Trust did not allow the family to take Mr S home or to visit him before he died.
• Mr S was not allowed to go home
69. During the evening of 10 January, Mr S said he wanted to go home. At this time, he was needing high flow oxygen and his raised NEWS showed he was unwell. Our physician adviser said it was also likely Mr S was confused. Staff did not assess his mental state or mental capacity, but noted he had delirium earlier in the day.
70. Good Medical Practice says that doctors should ‘protect and promote the health of patients and the public’. The physician adviser said it would have been dangerous for Mr S to go home, as he would not have had access to oxygen, antibiotics and other necessary support. A discharge could only have been considered as part of a discharge intended to be for end-of-life care. This would have required significant planning and support. It would have been difficult to get the necessary staff to support Mr S and his family, and there would have been risks for them from Mr S’s Covid-19 infection.
71. The family wanted Mr S at home, and this was where he said he wanted to be. We understand the family were distressed when staff told them this would not be possible. The support that would have been required for Mr S to be discharged home would have taken time to plan. We consider it would not have been appropriate for staff to have discharged Mr S during the evening of 10 January: Doctors acted in line with Good Medical Practice when they declined to discharge Mr S home. We do not uphold this issue of complaint.
• Staff did not allow family members to visit Mr S
72. The Physician adviser told us Mr S’s death was sudden, preceded by chest pain and increased shortness of breath. The physician adviser said likely explanations include clots of blood entering the circulation of the lung or a heart attack. The physician adviser said while Covid pneumonia did not cause Mr S’s death directly, there is an increased risk of clotting associated with Covid-19 infection. While we recognise Mr S’s death was unexpected, we have also considered whether any deterioration in Mr S’s condition met the threshold to have warranted the Trust offering the family an opportunity to visit Mr S during his admission.
73. The Trust’s visiting guidance at that time included ‘visitors would only be allowed into clinical areas if the patient is at the end of their life or lacks capacity or has dementia’. It also said ‘some wards may have further restrictions to protect the safety of patients and staff’.
74. Up until 10 January, Mr S did not meet the above criteria – so staff acted in line with Trust guidance when they said family members could not visit. However, Mr S was very unwell on 10 January. We note a doctor telephoned Mr S’s son during the afternoon because Mr S was agitated and did not want to wear his CPAP mask. The nurse adviser said nursing staff should have anticipated Mr S would deteriorate when he would not keep his CPAP mask on.
75. From the evening of 10 January, Mr S’s NEWS was 6 (6.48pm), 10 (8.43pm), 7 (10.55pm), 7 (0.29am), 9 (2.50am), 7 (2.55am), 8 (4am) and 7 (6am). Royal College of Physicians guidance says observations should be done every hour with a NEWS of 6; there should be continuous monitoring of patients with scores of 7 or more. Mr S’s NEWS was at 6 or above, which our nurse adviser said indicates deterioration. Our physician adviser agreed there were indicators of deterioration - new confusion, worsening NEWS and increased oxygen needs during the day and evening of 10 January.
76. Trust staff did not appear to recognise the combination of Mr S’s new onset confusion, worsening NEWS and his increased need for oxygen as a sign of deterioration. Our physician adviser added if staff had noted Mr S’s deterioration, as evidenced by the new onset of confusion, this might have allowed a family member to visit Mr S, in line with Trust guidance.
77. We find Trust staff did not consider allowing a family member to visit Mr S when they should have done. This failing caused great distress to the family. We therefore uphold this issue of complaint.
Complaint issue 5 - the Trust’s responses to Mrs R’s complaint about her husband’s care were contradictory, particularly regarding whether Mr S was in distress the night before he died and failure to contact the family when he deteriorated.
78. In her complaint, Mrs R asked the Trust if her husband had called for help, and no one attended. The Trust explained the nurse caring for Mr S had been caring for four other patients in the same bay who were also on CPAP. CPAP patients are continuously monitored so Mr S had not been left unattended or alone. It is apparent this response was based on the evidence and is accurate, as per our finding on this at complaint 2a above. This was in line with our Principles of Good Complaint Handling, which says organisations ‘should give clear, evidence-based explanations’.
79. I now turn to the complaint Mrs R put to the Trust that staff failed to contact the family when Mr S deteriorated. The Trust responded, ‘Your husband had not appeared to have deteriorated significantly over the hours prior to his sudden deterioration’.
80. We considered the Trust’s response and the clinical advice we received. It is apparent there were signs Mr S’s condition was deteriorating, contrary to the Trust’s response. This is what we found at complaint 4 above. Mr S’s further deterioration was not communicated to the family. In this respect, the Trust did not act in line with our Principles of Good Complaint Handling as its response was not evidence-based. This was a failing.
81. While there were signs Mr S’s condition was deteriorating, the event which caused his death was unexpected. The Trust wrote ‘… the loss of your husband … was of a sudden nature and not expected’. Our physician adviser agreed to a certain extent, saying Mr S’s death was sudden, preceded by chest pain and increased shortness of breath. This suggests Covid pneumonia did not directly cause this. Likely explanations include clots of blood entering the circulation of the lung or a heart attack – the risk of which would have been raised by the increased risk of clotting associated with Covid19 infection. We considered the Trust’s response to this issue and find it accurate, not contradictory and in line with Our Principles of Good Complaint Handling.
82. In summary, we have found the Trust’s response to one issue – the failure of staff to contact the family when Mr S deteriorated – to be inaccurate and not in line with the relevant standard. We therefore partly uphold the complaint about the Trust’s complaint handling.
Impact of the failings we have found
83. We have found the DNACPR order was appropriate – but Mr S and his family were not informed or consulted about it. A second opinion is likely to have reached the same view as our adviser – that the DNACPR order was appropriate. However, these failings meant the family did not know about the DNACPR at the time and did not realise how ill Mr S was. Better communication with the family about Mr S’s deterioration would also have helped the family realise how ill Mr S was.
84. While Mr S was very unwell, it was his delirium/confusion (lack of capacity) which would have meant Trust staff should have considered offering the opportunity for a family member to visit him on 10 January. Visiting would have allowed the family member to support Mr S in hospital and might have helped prepare the family for the possibility he might not survive. This loss of opportunity was a serious injustice to them and increased their distress.
85. The failings we have found meant the family did not realise how serious Mr S’s condition was - and were not able to visit him. This is an injustice to them. The failing we have identified in the Trust’s complaint handling – not having an open and transparent response to the issue of Mr S’s deterioration - added to the family’s distress.