Communication
20. Before we decide if we should conduct a detailed investigation of 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 have not found any indications that something has gone wrong.
21. Ms P has raised concerns the Trust did not communicate with the family about her father’s condition deteriorating and therefore she could not be with him at the end of his life. Ms P says because of this her father died alone and she and her family have to live with the guilt and distress from this.
22. We are sorry to hear about the circumstances of the final days of Mr P’s life. We have listened to Ms P describe her concerns and the distress these events caused. We appreciate how well loved Mr P was and we recognise how devastating it has been for Ms P and her family to not be with him in his final moments.
23. Within the Trust’s response, it has apologised for discussing Mr P’s end of life care in front of him on one occasion, which Ms P found distressing and inappropriate. It goes on to refer to several occasions where it discussed Mr P’s condition and prognosis with his family.
24. The guidance outlines the expectations of care provided when a person may die within the next days or hours. It specifically recommends,
‘• includes regular and effective communication between the dying person and their family and health and care staff and between health and care staff themselves; • involves assessment of the person’s condition whenever that condition changes and timely and appropriate responses to those changes.’
25. Mr P’s medical records show the Trust spoke to various members of Mr P’s family. Specifically, there was a conversation between the Trust and Ms P on 8 September which discussed how Mr P was nearing the end of his life and prognosis was sadly hours to one or two days. There were also discussions recorded on 9, 10 and 12 September between the Trust and various members of Mr P’s family about how some small improvements had been noted but Mr P was ‘not out of the woods.’
26. The Trust had two discussions with Mr P’s son on 14 September 2022. The first was a discussion about how Mr P was nearing the end of his life and how the Trust expected he would die within the next few days. The last discussion was at 5.15pm the same day and again the Trust said how his prognosis was a matter of days.
27. We think the Trust acted in line with the guidance by keeping Mr P’s family updated with his condition and prognosis.
28. Mr P’s medical records show following this conversation at 5.15pm, he had a sudden deterioration and a senior member of the medical on call team recognised he was in the process of dying at 10.25pm. The Trust contacted the family to inform them Mr P was actively dying at this time. We understand Mr P sadly died at 10.44pm before his family arrived.
29. Mr P’s medical records show once it was confirmed he was in the process of dying, nursing staff contacted Mr P’s family. We understand they were on their way to the hospital when Mr P died. We are saddened to hear Mr P’s family were not with him when he died and understand how distressing this was and continues to be for them.
30. The guidance also says, ‘professionals must make clear to the dying person and those who are important to them when it is thought that the person is likely to be dying and they should explain to them why they think this, what it is likely to entail and the uncertainties round this.’
31. Our adviser says the way in which the Trust managed Mr P’s care and treatment in his final days was appropriate. They added due to Mr P’s medical conditions and severe frailty he was at risk of deterioration at any time. We think the Trust’s actions were in keeping with this guidance.
32. The NICE guidance says, ‘It is not always possible to know for sure that someone is in their last days of life and it is hard to predict exactly when someone will die.’ Therefore, we consider that whilst the Trust recognised Mr P was in the process of dying it would be difficult for it to know exactly when Mr P would die. We think the Trust tried to prepare Ms P and her family for this when it explained he was in his final days of life.
33. Overall, we have seen nothing went wrong in the way in which the Trust has kept Ms P and other family members updated on Mr P’s condition and prognosis. It is exceptionally tragic Mr P deteriorated rapidly and his family did not have the time to get to the hospital to be with him before he died. We recognise how agonising this has been for them to live with.
34. We have seen no evidence this was the fault of the Trust. We do not think it was possible for the Trust to know exactly when Mr P would have his final deterioration or know how long it would be until Mr P died. From all of the evidence we have seen we think the Trust contacted Ms P and her family at the first opportunity when it recognised her father was sadly nearing his final moments.
35. We appreciate this may not be the answer Ms P was looking for. We hope our consideration of the Trust’s actions offers both her and her family some reassurance about what happened before her father died.
Medication issues
36. Ms P has raised concerns the Trust did not prescribe her father any medication following his diagnosis of pneumonia including no pain relief or antibiotics. She is also concerned the Trust stopped her father’s mediation before his course had finished and despite her not giving consent to this.
37. Ms P says because of this her father was not given the best chance of survival. She feels if her father has been given antibiotics as soon as he was diagnosed with pneumonia this would have helped him. She also says the Trust should not have stopped this medication and should have continued to actively treat his pneumonia. Ms P believes her father was left in unnecessary pain as the Trust did not prescribe him with painkiller medication.
38. We consider Ms P describes the Trust potentially failing in its duty of care by not providing Mr P with the appropriate medication as soon as he was diagnosed, by stopping the medication early, and in not managing his pain. She may have a potential clinical negligence claim here.
39. We will go into more detail below regarding this potential clinical negligence claim.
Nutrition
40. Ms P has raised concerns on 7 September 2022, the Trust was wrongly going to feed her father food he could not eat due to his dementia and because of this he was left with no food.
41. Ms P says this added to her father’s deterioration and meant he did not have the strength to fight his pneumonia.
42. Ms P describes the Trust has potentially failed in its duty of care as even though Mr P could not eat, he still required nutrition. We consider this could form part of a clinical negligence claim.
Legal claim
43. The law says we cannot investigate a complaint where a person has (or had) the option to take legal action, unless we consider this is (or was) unreasonable in the circumstances. We have discussed this with Ms P to understand her circumstances and the outcomes she wants. We do not consider whether legal action would succeed but whether it would be a reasonable option to look in to.
44. In relation to Ms P’s concerns about her father’s medication and nutrition, she has said as a resolution to this complaint she is looking for service improvements and a financial remedy. She has said she would estimate the amount of financial remedy she is looking for to be around £8000. She says this for the distress both she and her mother have gone through and the costs incurred with time being spent with her father.
45. While we can make recommendations on detailed investigation for financial remedies, the amounts we recommend are typically modest when compared with what can be achieved through legal action. Ms P seeks a substantial amount of money and whilst it is something we could potentially recommend, it is more likely for Ms P to receive amounts like this by taking legal action as we do not achieve financial outcomes in the same way the courts do.
46. Ms P has told us she did not consider a financial remedy until she bought her complaint to us. However, she now feels this is appropriate to resolve her complaint.
47. The law says we cannot investigate a complaint if the person has (or had) the option to do this. As Ms P is now seeking a substantial financial remedy, we feel it is reasonable for her to pursue a legal claim first before we consider these parts of her complaint further.
48. After speaking with Ms P she has told us she never considered legal action as she feels solicitors collude with hospitals to cover up any failings that have taken place. She therefore feels going down this route is costly and difficult.
49. We are sorry to hear about Ms P’s concerns about any potential legal claim. We think that while we are an independent organisation on neither the side of the complainant or the organisation complained about, a legal firm will work on Ms P’s behalf and will be on her side. It is important to note here that courts are also independent and will make a decision based on the information it has seen, and Ms P’s solicitor will be on her side presenting her case.
50. There are funding options such as no win no fee solicitors available who take on potential clinical negligence claims which means Ms P may be able to fund a claim without this being costly to her from the outset. There may also be other funding options available to her which she can explore with legal firms. Ms P has said a potential legal claim could be costly but she has raised no concerns about any financial issues which would effect her ability to pursue a legal claim.
51. We understand Ms P’s concerns about the process being difficult. Ms P may not have to attend court and would likely have a dedicated solicitor working on her behalf. She would need to provide a legal firm with information about her complaint, in the same way she has done with us and would need to continue to do if we were to investigate further. We have provided Ms P with details of independent organisations who can help her free of charge to find legal representation and answer the concerns she has about the process.
52. We understand Ms P chose to bring her complaint to us rather than making a legal claim. We recognise starting legal proceedings can be daunting. We think the best option for her to achieve her outcomes at the moment is to explore a legal claim further.
53. We understand Ms P also wants service improvements at the Trust as an outcome to her complaint. Service improvements often happen as a by product of a legal claim. We think Ms P may be able to achieve all her outcomes by following a legal route. Should Ms P be unable to achieve all of her outcomes from the courts, she is able to bring her complaint back to us. If doing so, Ms P should be mindful of our time limit.
54. We appreciate our decision may not offer the closure Ms P had wanted. We hope she understands the reason for our decision and this helps her get the answers she wants in the future.