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Short Notes on Nursing Home Claims 2018 - Dr Mark Burgin

26/01/18. Dr. Mark Burgin BM BCh (oxon) MRCGP considers the elements that should be included in a primer for clinical negligence cases involving Nursing Home care.

There are three types of problem that commonly lead to claims against nursing homes – failure to give prescribed medication or treatment – failure to protect against abuse – emotional neglect.

The nursing home records are extensive with typically about 500 pages of handwritten records per year which require transcription as these provide the evidence upon which the case is made.

Problems with Memory and communication skills mean that many claimants can add little to the case although specialist communication techniques can add information in some cases.

Nursing homes are regulated by the CQC who have a larger budget for investigation of systematic abuse and failure to report suspected cases of abuse.

Failure to provide treatment

For a nursing home patient turning, feeding and washing are all treatments that are prescribed in the care plan and the records can have gaps.

Breathing is usually controlled by the level of CO2 in the blood but in some cases of COPD the patient may rely on the falling levels of oxygen to stimulate their breathing.

The nursing staff may be reluctant to give the prescribed oxygen for fear that the patient may stop breathing and the CO2 may rise dangerously.

Strong painkillers such as morphine are also recognised to suppress breathing particularly if the patient is not tolerant of the dose.

Parkinson’s disease in its late stages causes the patient to freeze so that they cannot take their medication at that time but it should be given later.

Recording the reasons for omitting prescribed therapy is a responsibility both of individual staff members but also the senior nurse by adjusting the care plan.

Protection from abuse

Staff and relatives can be involved in abuse through rough handling, hitting and sexual assault and these events will typically leave evidence that a subsequent carer will notice and record.

Where there is suspicion that abuse has occurred the nursing home must report the event to the CQC with the name of the suspect, although the police would need to be involved if a crime was likely. (1)

This duty to report is a higher duty than generally in law and reflects the vulnerability that nursing home patients have so this type of problem is likely to be reported to the senior on call.

Nursing homes may have no regular staff for part of a day and problems are noticed when the regular staff come back on duty, without prompt reporting the physical signs and records of who was working at that part of the home and CCTV will be lost.

The nursing manager on call who failed to alert the authorities would face action from both their professional body and the CQC but causation may be denied in clinical negligence.

Emotional neglect

Emotional neglect can cause depression, self-harm and more rapid decline but proving breach and causation are both problematic.

Carers have training and can demonstrate that they can use appropriate communication techniques but there is no check that they are using these techniques on a day to day basis. (2)

It is not possible to make carers have positive feelings for their clients and although loneliness is recognised as a widespread problem there are no easy solutions.

Quality of life is increasingly recognised as an issue in health in general but in personal social care there are already funding problems. (3)

Lawyers with experience of this area may be best placed to offer advice to the social care sector as to how improvements in performance and regulation could be achieved.

Conclusions

The nursing home environment has improved with better staff training, more appropriate environments and improved regulation but there are still problems with low levels of permanent staff and reluctance to report adverse events. (4)

Nurses may be reluctant to give treatments when they consider them not for the patient’s benefit but find it difficult to take on both the family and the GP to get the prescription changed.

A freedom of information request that indicates a nursing home has had no reported episodes of abuse would suggest that the home is failing to protect its residents.

A primer would also consider other types of risk such as financial issues and dysfunctional systems where abuse becomes the norm. (5)

Doctor Mark Burgin, BM BCh (oxon) MRCGP is on the General Practitioner Specialist Register.

Dr. Burgin can be contacted This email address is being protected from spambots. You need JavaScript enabled to view it. and 0845 331 3304 website drmarkburgin.co.uk

  1. Health and Social Care Act 2008 (Regulated Activities) Regulations 2014: Regulation 13 Safeguarding service users from abuse and improper treatment

  2. Health Education England 2015 Skills for health The Care Certificate

  3. NHS Digital 2016 Personal Social Services Adult Social Care Survey England 2015-16

  4. Health and social care information centre Abuse of Vulnerable Adults in England 2012-13, Final Report, Experimental Statistics

  5. Department of health 2012 Transforming care: A national response to Winterbourne View Hospital

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