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DP v Ms Sisson, Mr Scott and Mrs Scott (Ohope Lodge)

Human Rights Review Tribunal, 10 August 2007

On 10 August 2007 the Human Rights Review Tribunal made a number of declarations that a consumer's rights had been breached as a result of a poor standard of care received whilst resident at Ohope Lodge Rest Home.

The Consumer's Condition

On 3 October 2001, Mrs Brownlie, aged 83 was admitted to Ohope Lodge, a 30-bed rest home. She had a compression fracture in her spine. She also had compromised skin integrity and was at risk of developing pressure sores.

The clinical care provided to the residents of Ohope Lodge was planned and assessed by Judith Sisson, who was a registered psychiatric nurse. Her registration applied only to mental health nursing and so she was practising outside her scope of practice.

Mr Daniel Scott, also a registered nurse, was the Manager of Ohope Lodge, and his wife, Mrs Cassandra Scott and he were the licensees of Ohope Lodge.

On 1 November 2002, thirteen months after admission, Mrs Brownlie's progress notes record that she had a small pressure sore on her back. Thereafter her condition gradually deteriorated, with further pressure sores developing on her right heel, her bottom, her left hip and her left shoulder.  Following review by the general practitioner, on three occasions during the next six months, antibiotics were prescribed for infection.

Between 20 March and 28 March 2003, it was noted that Mrs Brownlie had chest pain and significant exudates, and was calling out whenever turned.

On 1 April 2003, a different GP reviewed Mrs Brownlie and requested a review by the District Nursing team. The District Nurse who attended on 3 April 2003 described a pressure sore on Mrs Brownlie's hip as being 11cm x 5cm, black, necrotic and full thickness to subcutaneous fat. On the left hip there was a sore that measured 4cm by 3cm, had a moderate exudates and its depth was to the muscle/fascia. The one on Mrs Brownlie's sacrum was described as 4cm x 3cm, with moderate exudates. Pain was noted on dressing changes.

As a result of a reassessment of the level of care required, Mrs Brownlie was transferred to another rest home and hospital on 8 April 2003, by which time she had limb contractures, likely as a result of the pain she was experiencing.  It was recorded that she had pressure areas on her left hip, left buttock, right hip, lower left leg and left heel. The sores variously had purulent and offensive exudates, necrotic areas and sloughiness. Mrs Brownlie's condition gradually deteriorated and she died on 7 May 2003.

Rest Home Obligations

Until 1 October 2002, rest homes were licensed under the Old People's Homes Regulations 1987 and, at all relevant times, Ohope Lodge was licensed under these regulations. The following regulations and standards were applicable:

Regulation 37 - Obligations of a licensee and manager

(1)       Every licensee of a home shall take all reasonable steps to ensure at all times -

…

(c)       That the home has an adequate procedure to assess the health needs of each resident on admission to the home, and that the home continues that assessment procedure while the resident remains in the home;

(2)       Every manager of a home shall take all reasonable steps to ensure at all times -

(a)       That the residents are adequately cared for with respect to their everyday needs;

…

At that time the Ministry of Health Standards of Care for Old Peoples' Homes (1987) were in place.  They provided:

Standard 2

The main task of the licensee, resident manager, and all the staff is to provide for the care and comfort of those living in the home. …

Provide a safe, competent, but flexible service for your residents. …

…

Standard 8

The licensee or resident manager should develop programmes of orientation and continued learning for staff. …

• Keep your staff up to date with knowledge about caring for the elderly.  Include:

- the ageing process

- the needs of the elderly - physical, emotional, intellectual, social and spiritual …

• Encourage staff to attend seminars, workshops and training courses locally, regionally and nationally.

In 2002 the Ministry of Health brought in a new contract with providers for the purchase of age-related residential care services ("the National Contract").  The National Contract was signed by Mr Scott as Manager on behalf of the rest home on 19 December 2002.

On or about 5 November 2002 the Ministry of Health undertook a routine audit of Ohope Lodge. Deficiencies were noted in the following areas of the Service Agreement:

• Inadequate pain management policy
• No documented policy and procedure regarding skin management;
• No documented policy and procedure for wound management;
• Inadequacies in content of Care Plans;
• Inadequate training, orientation and performance appraisal;
• Requirement that Registered Nurse fulfils the functions described in D.17.2e of the National Contract.

Clause D17.2e of the Ministry of Health National Contract for Age Related Residential Care Services provided that the second defendant must employ at least one Registered nurse, excluding a registered psychiatric nurse, to be responsible for developing and/or reviewing Care Plans, providing and supervising care, fulfilling an educational role, monitoring the competence of other nursing and care staff, advising management of the staff's training needs, and assisting in the development of policies and procedures.

On or about 9 January 2003 the Ministry of Health undertook a further audit of Ohope Lodge. Included in its report were the following areas in which there were deficiencies:

• The pain management policy and procedure did not include an assessment process;
• There was no documented policy and procedure for skin management;
• The policy and procedure for wound management were not documented;
• There were inadequacies in the care plans;
• There was inadequate orientation and performance appraisal;
• The requirement that a Registered Nurse fulfil the functions described in D.17.2f and D.17.3c of the National Contract had not been filfilled.

Tribunal Decision

The parties consented to the Human Rights Review Tribunal making the following declarations:

1. Ms Sisson breached Right 4(1) the Code by failing to provide services to the consumer with reasonable care and skill, and Right 4(3) by failing to provide services in a manner consistent with her needs. In particular she:

(a)               as a registered psychiatric nurse undertaking general registered nurse responsibilities, practised outside her scope of practice;

(b)               inadequately planned and documented the care to be provided in relation to nutrition; incontinence, skin management, wound care and pain;

(c)               used and directed the use of inappropriate wound care products and equipment;

(d)               failed to involve a wound specialist or occupational therapist or physiotherapist or dietician;

(e)               failed to undertake a pain assessment or institute a pain management plan;

(f)                 failed to ensure that her own training and that of the staff was adequate in relation to wound care.

2. The rest home also breached the Code vicariously or directly as a result of the above.

3. Mr Scott, as Manager, breached Right 4(2) of the Code by failing to provide services that complied with legal standards.  In particular he:

(a)          in breach of his obligations under point D17.2 of the National Contract for Age Related Residential Services, failed to employ a registered nurse excluding a registered psychiatric nurse to take responsibility for matters under D17 of the Contract.

(b)          in breach of s37(2) of the Old People's Home Regulations 1987, failed to take all reasonable steps to ensure at all times that the consumer was adequately cared for with respect to her everyday needs. In particular he failed to ensure there was adequate care planning, wound management, skin management, training of staff and performance appraisals of staff, in particular Judith Sisson.

4. Mr and Mrs Scott, as licensees, breached Right 4(2) of the Code by failing to provide services that complied with legal and professional standards.  In particular:

(a)            in breach of their obligations under point D17.2 of the National Contract for Age Related Residential Services they failed to employ a registered nurse excluding a registered psychiatric nurse to take responsibility for the matters in D17;

(b)            following Ministry of Health audits, failed to adequately rectify deficiencies in order to comply with the standards set down in the National Contract, the Service Agreement, and the Standards of Care for Old People's Homes, in particular in relation to staff training, education, orientation, performance appraisal and wound management.

(c)            failed to comply with their responsibilities under regulation 37 of the Old People's Home Regulations 1987. In particular they failed to ensure that an adequate health needs assessment procedure was in place and continued while the consumer remained in the home.