Change in administration of feeding regime without consultation

Names have been removed to protect privacy. Identifying letters are assigned in alphabetical order and bear no relationship to the person's actual name.

 

A Rest Home Company
Registered Nurse, Mrs E
General Practitioner, Dr D

A Report by the Health and Disability Commissioner

(Case 02HDC08819)

Parties involved

Mr A                                                         Consumer (deceased)
Dr B                                                          Geriatrician/Physician, the
                                                                 district health board
Mrs C                                                       Mr A's daughter
Dr D                                                          Provider/General
                                                                 practitioner
Mrs E                                                        Provider/Registered nurse
Ms F                                                          General Manager, the rest
                                                                  home company
Mr G                                                          Licensee, the rest home
Ms H                                                         Dietitian (formerly of a
                                                                  district health board)
Dr I                                                            General Practitioner         
Ms J                                                           Dietitian, the public
                                                                  hospital
Mrs K                                                        Manager, the rest home

 

Complaint

On 26 June 2002 the Commissioner received a complaint from Dr B (via the Nursing Council of New Zealand) concerning the services provided to Mr A by Mrs E at a rest home. The Commissioner confirmed that Mr A's daughter, Mrs C, and wider family supported Dr B's complaint, which was summarised as follows:

In early September 2000 Mrs E reduced the level of Jevity nutrition administered to Mr A without consulting or advising either a dietitian or Mr A's general practitioner.

An investigation was commenced on 31 October 2002.

On 16 December 2003 the Commissioner's investigation was extended to include the involvement of Dr D, GP, and the following issues:

Whether Dr D provided services with reasonable care and skill to Mr A and in particular:

• whether Dr D adequately assessed Mr A or reviewed his condition between September 2000 and March 2002;
• whether Dr D should have reviewed Mr A's dietary needs between September 2000 and March 2002;

• whether Dr D prescribed Jevity nutrition between September 2000 and March 2002 without assessing whether the amount prescribed was sufficient for Mr A.

Information reviewed

• Correspondence, including copy of the report to the Coroner from Dr B, geriatrician, the District Health Board
• Information from Mrs C
• Report to the Commissioner from Mrs E, 8 November 2002
•  Correspondence from Ms F, including:

a)      Notes of interview with Dr D on 16 April 2002

b)      Chronology of events

c)      Various copy correspondence

d)     Notes of interview of Mrs E by Ms K, manager at the rest home, and Ms F, 9 April 2002

e)      Statement by Mrs E in response to questions from Dr B, 26 April 2002

f)       Training manuals regarding enteral nutrition and PEG systems, and a training-based video tape

g)      A record of in-service training provided to Mrs E

h)      Job descriptions for manager and clinical nurse leader

i)        Policies and procedures on pressure area care, medication management, enteral feeding and nutrition

j)        The rest home company's Operational Policy Manual, Clinical Resource Manual; Continuous Quality Improvement Action Plan for 2002; Quality Improvement Plan 2003/2004; on-site evaluation (audit) for the rest home by Health Funding Authority, 21 March 2000; various policy documents

k)      Mr A's medical records and notes from the rest home

• Mr A's medical records and notes from the District Health Board
• Correspondence to the Commissioner from Dr D, 9 December 2002 and 15 January 2004
• Summary of dietitian service provided to Mr A while at the public hospital, prepared by Ms J, 14 April 2003
• "Guidelines for Home Enteral Feeding", the District Health Board, dated August 2001
• Correspondence from Dr I, 22 May and 11 June 2003
• Letter to the Commissioner from Ms H, 9 October 2003
• Letter to the Commissioner from the Coroner, 31 October 2003 (with copy Death Notification dated 3 April 2002)
• Responses to the Commissioner's provisional opinion from Mrs C, Mrs E, Dr D, Dr I and Ms F.

Independent expert advice was obtained from Ms Andrea Avent, registered nurse, and Dr Wendy Isbell, general practitioner.

In response to my provisional opinion, Dr D's legal representative submitted for my consideration an expert report from a general practitioner.[1]

Information gathered during investigation

Background

The rest home company is the licensee of a private rest home and hospital ("the rest home") which caters for up to 31 elderly patients. The rest home's contract with the Ministry of Health required all patients to be medically reviewed "as their medical condition dictated", and once a month unless they had been assessed as stable by the visiting general practitioner, in which case reviews were required at least once every three months. For the first half of the year 2000, Dr I was responsible for providing medical reviews for the rest home residents. From about June 2000, Dr D was contracted to provide GP services to the rest home for 1.5 hours each week, in place of Dr I.

Mrs E is a Registered Nurse ("RN") who qualified in 1967. In May 1996, she was employed by the rest home company to work at the rest home as a nurse. In December 1998, the Ministry of Health approved Mrs E as nurse manager ("Clinical Nurse Leader") for the rest home, pursuant to section 135(4) of the Hospitals Act 1957. Mrs E explained that her role included facilitating resident/patient admissions and assessments, attending to administration duties such as transport needs and outpatient appointments, responding to sales representatives, monitoring meals for patients, ordering and ensuring safe storage of medications, organising, supervising and scheduling staff, and "many other incidental daily activities".  Mrs E stated that in the six years she was employed at the rest home, she often worked in excess of her scheduled hours: "Basically, [the rest home] became a very large part of my life. I never viewed my employment as just a job as I was passionate about nursing and the care of the elderly and always had been."

Mr A became a permanent resident at the rest home on 19 December 1995.  His medical history included a head injury in 1994, which had subsequently resulted in epilepsy, a stroke in 1995, and recurrent chest infections. In 1995, Mr A could not walk or move without assistance and was able to weight bear only with the assistance of a high frame and two caregivers. He required total care for all activities of daily living including feeding, toileting, washing, dressing and personal grooming.

On 4 February 2000, Mr A suffered a respiratory and cardiac arrest. He was resuscitated at the rest home and admitted to a public hospital ("the hospital"), where Dr B was responsible for his care. She diagnosed Mr A with aspiration pneumonia (pneumonia resulting from the intake of food particles, vomit, water or infected material from the upper respiratory tract), and was concerned about his ongoing feeding, because swallowing risked further aspiration. Dr B ordered that Mr A be fed "nil by mouth" and discussed the following two options with his family: continuing to feed him orally, accepting the risk of further aspiration; or inserting a percutaneous endoscopic gastrostomy ("PEG") feeding tube through his abdominal wall directly into his stomach, so that he could receive nutritional supplements and fluids without needing to swallow. Mr A's family believed that he had a good quality of life, despite his level of disability, and on 15 February 2000 decided that he should have a PEG tube inserted. This was done at the hospital and Mr A subsequently recuperated at a second public hospital.

On 21 February, Mr A's family agreed that if he had another cardiac arrest, he should not be resuscitated. The same day, Mr A was seen by a dietitian, Ms H, who prescribed a daily enteral (ie, via PEG tube) feeding regime of 2000ml of "Jevity", a specialised complete liquid feed formula.

Jevity is included on Pharmac's schedule of special foods for which government subsidies are available, pursuant to an application for special authority.  Initially, only specialists wishing to prescribe Jevity for a patient can make the formal application to HealthPAC (formerly Health Benefits) for special authority. Special authority approvals for Jevity are valid for one year, and re-applications may be made by the specialist, or a general practitioner on the specialist's recommendation. Jevity is available only from hospital pharmacies. The minimum daily amount of Jevity a person requires in order to receive nutritional benefit is 1321ml (1400kcal). Ms J, a dietitian at the public hospital, advised me that "a volume lower than this is not providing the individual with adequate protein, vitamins and minerals, and over a prolonged period of time may induce clinical deficiencies". 

Dr B first applied for special authority for Mr A's Jevity in February 2000, and this was granted by Health Benefits on 23 February 2000, effective until 28 February 2001. Dr D made a re-application for special authority on 21 February 2001. Mr A's clinical records show that prescriptions ordering his monthly supplies of Jevity were signed by the rest home's visiting GPs regularly until February 2002. However, Dr B advised that it was the dietitian, rather than the GP, who was responsible for determining or "prescribing" Mr A's daily Jevity intake.  

Mr A's PEG feeding regime

Commencement

On 25 February 2000, Mr A was discharged from the second public hospital. His weight was recorded as 68.5kg. Ms H facilitated Mr A's handover to the rest home with a telephone call, and a typed instruction sheet detailing a feeding regime designed to provide 2120kcal per day, including 88g of protein. An entry in the rest home's nursing continuation notes confirms: "dietitian rang, re Jevity schedule, will fax confirmation through". Ms H's written instructions to rest home staff were as follows:

"Product:   Jevity          2000ml

                   Water         600ml from 6 flushes

Total Fluid Volume:      2600ml

Hours to feed:               18 Hours

Target rate:                    111ml/hr

Flushes:                         6 x 100ml of warm water between feeds

Notes:

• Feeding position - propped up on bed or chair at least 30^oangle.  Keep in this position for at least ½ hour after feeding
• Check the stomach content for residuals to ensure that feed is not remaining in the stomach
• Weight needs to be monitored weekly - inform dietitian of changes
• Regular biochemical assessments."

Ms H had no further input into Mr A's care after 25 February 2000, and left the District Health Board in March 2000. She advised me that it was then "quite a struggle" for her to retrieve her case notes for the purposes of my investigation. However, in a letter dated 9 October 2003, she was able to summarise her involvement in Mr A's care, based on her case notes, and advise that she had explained to rest home staff that the rest home's  privately contracted dietitian needed to conduct regular reviews of Mr A's feeding regime and provide assistance as necessary. While the rest home's RN and visiting GP were expected to provide oversight, the rest home's dietitian was to be contacted if there was any significant decrease or increase in Mr A's weight or if the biochemical assessments (including blood tests) showed any "subclinical results". Ms H said this approach was "usual practice".  

Ms J confirmed that this method of handover was usual and appropriate at the time but added that the rest home should have received additional written information entitled "Guidelines for home enteral feeding". It is unclear whether this information was provided to the rest home. In response to my provisional opinion, Dr D advised that he had never seen it.

In addition, Dr D's expert advisor commented:

"In the absence of [Ms H] the dietitian's original case notes one cannot presume that there was a transfer of the responsibility to [the rest home] dietitian or for [Dr D] to arrange such a referral.  I have had an opportunity to seek advice from the Food Service Department locally and their advice is that blood tests are not a pre-requisite for continued usage of Jevity. The advice with respect to 'biochemical assessments' and 'subclinical results' is therefore of uncertain value."

Ms H does not recall advising Mr A's GP that she had commenced him on an enteral feeding regime. She understood that standard practice was for the hospital medical team (ie, Dr B) to do so. In February 2000 Mr A's GP was Dr I, who advised that he saw Mr A "every three months for his regular check ups and more frequently when requested to do so by staff". In response to the question whether he had any involvement in establishing, monitoring or amending Mr A's nutritional regime at the rest home, Dr I said:

"I was responsible for medical care of all patients in [the rest home] for the time in question. The actual monitoring and implementation of feeding regimes was the responsibility of nursing staff."

Mr A's clinical notes from February 2000 onwards clearly record the "nil by mouth" status that had been agreed by Dr B and Mr A's family. His "Care and Support Plan" initiated in February 2000 says:

"PEG needed due to recent medical crisis. At high risk of developing aspiration pneumonia. NBM [nil by mouth]. Objective/goal: promote and maintain adequate nutritional intake. Action plan: administer Jevity at 2000ml over 18 hours start time 11am finishing 6am. Flush tube with water at 50mls x 6 over 24 hours."

The nursing notes for 26 February state: "Jevity regime followed as per instructions from hospital dietitian". The administration of this regime was recorded by the rest home staff on a handwritten, unlined chart which first recorded that Mr A was to receive "2220ml Jevity and 2670ml fluid in 24 hours, a total of 2353.2cal per day". These amounts are inconsistent with Ms H's instructions and are not reflected by the amounts recorded in the chart columns, which state that the "total intake" each day was 2000ml.

Nursing progress notes for Mr A's daily care contain numerous references to the administration of his Jevity being without problems. However, on 29 and 30 April 2000, one of the nurses observed that the second bottle of Jevity was "running late" and queried the reason for this. The Feeding Chart for Mr A confirms that until 26 June 2000, his daily Jevity intake was 2000ml.

Initial reductions in daily Jevity intake

On 22 June 2000 Mr A was re-admitted to the hospital for reinsertion of the PEG tube. His weight had increased to 75.6kg but he had "persistent faecal and urinary incontinence". On 27 June, his daily intake of Jevity was discussed with Dr I and a dietitian at the hospital (whose name is not recorded). It was agreed that a reduction in Jevity intake from 2000ml, to 1800ml for two days, then to 1500ml daily, would assist Mr A's tolerance and remedy his incontinence. The handwritten feeding chart shows a heavy line drawn under the last administration of 2000ml (on 26 June) and states, "change". Subsequent entries show that Mr A received 1800ml for the next two days.

An entry in the nursing progress notes for 27 June, made by a nurse states:

"Weighed today, gained 3kg.  Reduced Jevity from 2000ml to 1800ml/day for two days and then to be reduced to 1500ml.  For weekly weigh.

Pm: Jevity regime continues as per new order."

The nursing progress notes for 28 June state:

"Jevity [continued] with 1800ml/24 hours.  Running at 100ml/l over 18 hours. 4 hourly flushes done. To have Jevity reduced tomorrow to 1500ml per day = 84ml/hour over 18 hours.  For weekly weigh each Wednesday."

The nursing progress notes for 29 June confirm that staff "reduced [Mr A's] Jevity as per new regime". An entry on 15 July in the feeding record confirms he was "to have 1500mls per 24 hours ie 1.5 bottles" per day.

Mrs E was on leave when these reductions were approved and implemented. She informed me that the rest home did not receive a new feeding instruction sheet from the hospital dietitian (such as the one Ms H had initially provided), and that there was no follow-up of these changes by the dietitian or Dr I.  

Dr D first saw Mr A at the rest home on 2 August 2000. He noted that Mr A could not communicate verbally, had no voluntary movements, could not obey simple commands and was doubly incontinent. He observed Mr A's nutritional needs, noting that "they had been well established with a dietitian and previous GP" and that he was fully dependent on the PEG regime. In response to my provisional opinion, Dr D clarified that his comments related to Mr A's feeding regime being "well established" since February, and advised that he had not known that the regime had, in fact, been changed by Dr I on 27 June.

After this consultation, Dr D asked a speech and language therapist to assess Mr A's swallowing ability, because, he said, "patients maintained on PEG recover some of their swallowing ability (about 30%). This was mainly as a quality of life issue to see if [Mr A] could enjoy even a few mouthfuls of food by mouth".  The speech therapist's report, dated 17 October 2000, is discussed below.

Mrs C acknowledged that her father had difficulty communicating verbally, but clarified that he was not completely unable to do so. She said, "some days he had little to say but other times he could indicate if he felt hungry or uncomfortable. On different days he was different. You could sometimes have a conversation with him and sometimes he would wave goodbye. The nurses at [the rest home] knew that he was sometimes more sleepy or unresponsive on different days. Even a short time before his death when we [Mrs C and Mrs A] asked him 'how are you?' he once replied 'I am fine thank you'."

Mr A's care and support plan was evaluated on 25 August 2000. On that date, the following information was recorded:

"Reviewed by doctor regularly. Medically stable. Action plan unchanged. Weight monitored 3 monthly. Jevity now 1500mls starting at 11am. Flush PEG with 50mls water 4 hourly."

Mr A's feeding regime of 1500ml Jevity per day was followed until 6 September 2000. During this time his weight, which was monitored once a month, was as follows: June 75.6kg, July 75kg, August 76kg, September 77kg. 

Further reduction in daily Jevity intake

On 6 September 2000, Mrs E reduced Mr A's daily intake of Jevity from 1500ml to 1000ml. She did so again on 9 September. She informed me that this was done on a "temporary basis" as a "trial", to reduce Mr A's reported abdominal pain and distention, and in order "to accommodate his outings with his family which he enjoyed". Nursing progress notes written by Mrs E on these dates state:

6 September 2000:    "Out with family 11am.  Returning 5pm approx.  To have Jevity 1000ml commenced on return.  Do not give extra 500mls today."

9 September 2000:    "Out with his son.  Please commence 1000mls Jevity on his       return.  Do not give extra 500ml.  All usual cares."

It appears from some of the entries in the nursing progress notes that there were other occasions in late September 2000 when Mr A was given only one bottle of Jevity (ie, 1000ml) in a day.

Mrs E acknowledges that these reductions were her decision alone, and not discussed with a dietitian. She does not recall discussing the matter with Dr D and accepts that if she did so, she did not record it in the nursing progress notes. Dr D has no recollection of discussing the need to trial a reduction in Mr A's daily Jevity intake. He recalled:

"During all my visits to [Mr A] I inquired about the administration of feeds, asking questions such as how they were going, whether there were any problems, whether the tube was blocked, whether there appeared to be any infection around the PEG insertion site, whether the feeds were going too fast or slow, whether he was regurgitating anything. I presumed that the feeding regime of nutrition and fluid intake established and balanced during the previous 6 months, from February 2000 to August 2000, were being maintained. … I also assumed that all nursing staff dealing with [Mr A] were by now in August 2000 familiar with his feeding and the importance of providing the daily quantities of Jevity and fluids. I expected that if any changes to feeding regimes were to be made a dietitian or myself would be contacted. I was not informed of any changes made to the regime and never imagined that they would make changes to the regime without notifying me. I also did not take part in any discussions to reduce his feeding regime."

Dr D's expert advisor advised that Dr D's expectations were, in his view, "entirely reasonable".

Dr D saw Mr A again on 27 September 2000, when he examined Mr A's abdomen, because nursing staff had again noted some distention, and suspected bowel impaction. Dr D excluded bowel impaction as a possible cause of Mr A's discomfort, and did not make any change to Mr A's feeding regime. Jevity was discontinued until Mr A became more comfortable, and was recommenced later that night, when he complained of feeling hungry. Dr D's expert advisor commented that if Dr D intended a reduction in Jevity to be made on this occasion, he would have expected to see a reference to it in the GP notes, yet there is no such reference. Dr Kerr stated: "Also, it would be unusual for a Medical Officer to read the nursing case notes and as a consequence he would not be aware of [Mrs E's] entry with regards volume of Jevity."

Dr D's entry in the "Medical Continuation Notes" records an order for blood tests.  It appears from subsequent notes that these were not taken, and that no further blood tests were ever ordered. In relation to this issue, in response to my provisional opinion, Dr D's expert advisor stated:

"I can find no confirmatory information as to the value of such blood tests in patients on Jevity following discussion with a senior Dietitian locally … or following review of the Medsafe website or other similar sites. Neither were my three General Practitioner colleagues able to clarify what tests 'should' be done when taking Jevity. With the benefit of hindsight it would have been ideal if [Dr D] had followed up on the tests that were requested. Currently this is not a process that has wide support in General Practice software programmes or amongst many practitioners, and certainly was not so back in September/October 2000."

Mrs E's entry in the nursing progress notes for 28 September states: "No problems today. Abdomen not unusually distended.  Jevity 1000mls commenced at 11am." No reference is made on 28 September to a further 500ml being given by other nurses. On 29 September, Mr A again had a distended abdomen, and Jevity feeding was discontinued at 2.30pm to ease his discomfort. Mrs E's notes record: "Leave [Jevity pump] off for tonight please." Mrs E's notes for 30 September state: "Cares maintained. Jevity 1000ml commenced 11am. DO NOT GIVE EXTRA 500mls tonight." The notes on 1 October state: "Continue with Jevity 1000mls only for next few days." On 2 October, the notes confirm that "Jevity 1000ml up and running" and Mr A was noted to have slept well and was not complaining of abdominal pain. On 3 October, his abdomen was soft, and he received 1000ml of Jevity. Mrs E's notes on 4 October state: "Continue Jevity 1000mls/day."

Over the next few days, a number of entries in the nursing progress notes state that Mr A was looking lethargic, and that the feeding regime (ie, 1000ml per day) was "unaltered".

On 17 October, a speech language therapist assessed Mr A. Her report of the same date states:

"On assessment:

No drooling noted

Unable to produce a volitional cough

Unable to swallow on command

Not following simple instructions

No speech or vocalisations produced

Trialled with a couple of mouthfuls of ice-cream - prolonged oral stage (difficulties moving and co-ordinating his tongue to form a bolus) with a delayed initiation of swallow and poor laryngeal elevation

Voice sounded gurgly post swallow indicative of residues remaining in oral-pharynx and weak pharyngeal movement

Swallow ability appears [to] fluctuate frequently

Recommendations:

[Mr A] presents with a severe dysphagia. He has a strong risk of aspiration and subsequent chest deterioration on all oral intake. He is not a good candidate for swallowing therapy due to his generalised cognitive decline. From a speech therapy perspective I would recommend Nil by Mouth status, however, I am very aware there are quality of life issues associated with this recommendation. Therefore it is a decision for the team and family to decide."

Mrs E recorded in the nursing notes on 19 October that staff were to: "Continue with present feeding regime - i.e. Jevity 1000ml over 24 hours." Subsequent notes, for example on 26 October, show that this regime was administered "as usual" and that Mr A continued to receive 1000ml each day. His weight does not appear to have been taken in October or November 2000.  However, in response to my provisional opinion, Mrs E noted that some of Mr A's records were missing and that a "sheet of weighs" may have been lost. When he was weighed in December 2000, he was noted to be 68.5kg.

Mr A's care and support plan was evaluated again on 20 February 2001 when the following was recorded:

"Refer to requirements, needs assessment. Seizure in Jan, stesolid given with effect. Reviewed by doctor regularly. Meds as prescribed. Assessed by speech therapist for swallowing capabilities. Family advised of report and after family discussion have elected to maintain [nil by mouth] and PEG feeding. Jevity now 1000mls.

PEG insertion site treated with silver nitrate due to granulating tissue creating bleeding and discharge. This now [satisfactory]. Continue same plan of action."

Mr A's weight was not recorded again until March 2001, when it was 62kg. In June, he weighed 61kg. In August 2001 a further evaluation on the care and support plan confirmed once again that Mr A's daily intake of Jevity was 1000ml. The evaluation notes state:

"Weight monitored 3 monthly and recorded on needs assessment form. Family have now opted for palliative care. [Nil by mouth] and PEG feeding with Jevity 1000mls - weight stable. Monitored and recorded 3 monthly or more often if weight decreases. If this occurs increase Jevity as per dietitian."

Mrs C was concerned to learn, during my investigation, that there was reference in her father's notes to palliative care. She clarified that while Mr A's family had stipulated that he was "not for resuscitation" if he suffered a cardiac arrest, they had wanted all active steps to be taken for him in other respects, for example, if he had a chest infection. Mrs C confirmed that she can't recall any discussion with the rest home staff about palliative care but that the family had wanted staff "to do all they could". She explained that "even when he was last admitted to the hospital, I fought for his care. I had power of attorney and wanted him treated with antibiotics."

Mr A's weight increased to 66.7kg in September 2001. Numerous entries in his "recreation progress notes" state that he was "sleepy" and becoming disinterested in activities.

Entries in the "Medical Continuation Notes" show that Mr A was reviewed by a GP on 6 and 13 February 2002. His weight was recorded as 57.3kg. The nursing progress notes confirm "Jevity regime unchanged". On 24 March 2002, the rest home nursing staff recorded that Mr A's urine was "thick and offensive", that he "appears to have lost a lot of weight lately" and was "very sleepy and dehydrated". On 27 March, he was noted to have a number of pressure sores on his back and hips, which were "semi black around rim".  The same day, he was reviewed by the GP. His daily Jevity intake does not appear to have been discussed during these three medical reviews.

In relation to the latter point, Dr D's expert advisor stated:

"Case notes are a record of positive or important contributing findings. [With] reference to 'Jevity does not appear to have been discussed' … one [would not] expect it to be discussed. This is a prescribed medication and when charted in the file it is assumed that it is dispensed as charted unless advised otherwise. The assumption that the correct volume was being administered was entirely realistic. Neither would one expect a General Practitioner to check with staff that each tablet was being taken. We would instead expect to be advised if this was not the case."

Re-admission to the public hospital

On 31 March 2002 Mr A was transferred to the hospital, at his family's request, so that intravenous antibiotics could be commenced. On admission, he was seen by Dr B and noted to have severe malnutrition, pressure sores, anaemia, low albumin (protein) and sepsis from a urinary tract infection. Dr B remarked that Mr A was "obviously very seriously ill".

In response to my provisional opinion, Mrs E stated:

"I was on leave [at this time] and don't know what had happened to him in the preceding 2 weeks … a lot can happen in a short space of time and I don't know what condition he was in when he went to [the hospital]."

Ms J, the hospital dietitian, telephoned the rest home to enquire about Mr A's feeding regime. She was told that Mr A received 1000ml Jevity per day, starting at 11am. Ms J asked who had approved this regime, and was informed that the only instructions on file were those of Ms H, dated 28 February 2000. Ms J asked for written confirmation of Mr A's feeding regime as at March 2002. A staff member at the rest home made handwritten amendments to Ms H's original instructions, and faxed them to Ms J. The amendments (in bold) recorded the following:

"Product:   Jevity (with fibre)  2000ml [crossed out]  1000ml

                   Water                       600ml [crossed out]  300ml from 6 flushes

Total Fluid Volume:      2600ml [crossed out]  1300ml

Hours to feed:               18 [crossed out] 10 Hours    start - 11am

                                                    finish - 9pm

Target rate:                    111ml/hr [crossed out] 100ml/hr

Flushes:                         6 x 100ml [crossed out]50ml of warm water between feeds

                                      4 hrly flushes (50-80ml)"

Dr B and Ms J concluded from this information that from October 2000 until 31 March 2002, Mr A had received 1000ml of Jevity each day. Dr B informed me that this had contributed directly to Mr A's significant weight loss and poor nutritional status, and meant that he had insufficient physical reserves to deal with infection. Mr A died a short time later as a result of "overwhelming sepsis secondary to a urinary tract infection". Dr B subsequently reported Mr A's death to the Coroner, and advised:

"[Mr A] was admitted under my care at the end of March this year [2002] and following his death I found that his prescription for PEG feeding had been amended by a Nurse at the Continuing Care facility where he was cared for in.

I believe that while this reduction was not made in a malicious way, it did result in [Mr A] becoming severely malnourished, and appropriate review was not sought as his condition deteriorated."

Dr B recommended to the Coroner that these issues be brought to the attention of the Nursing Council. The Coroner agreed with this recommendation and asked Dr B to do so.  The matter was subsequently referred to my Office.

General Issues

Medical reviews  

From June 2000, Dr D visited the rest home once a week. He explained that during these visits, a staff member, usually the RN in charge, provided a list of the residents she specifically wanted him to see. Most of each visit would be spent discussing the residents' problems and visiting residents who were unwell. Dr D would be accompanied to the resident's room with the RN, where the consultation would be conducted. The resident's file and medication charts would be available at that time. Documentation, which according to Dr D included a Clinical Summary Journal and rounds journal, was completed in the rest home office at the end of the visit. A "Resident Medical Consultation Diary" recorded the dates when patients were seen. "Routine" reviews of all patients were carried out every three months.

Dr D advised me that in his contract for services with the rest home, there was "no specific mention" of the need for him to review residents' dietary needs, but this would have been something he would do if a specific concern was brought to his attention by the nursing staff, the patient, the patient's family, or if he "observed something out of the ordinary". Dr D has been unable to provide a copy of his contract. But for some uncertainty as to when Dr D's contract formally commenced, I am satisfied that the outcome of my investigation need not be affected by the absence of this particular document.

Mrs E said that it was her practice to have a "general discussion [with the GP] on a variety of concerns" regarding the rest home residents, prior to his weekly clinics. She added that while it was her role to keep the supervising doctor informed as to each patient's condition, she saw no reason to advise Dr D about Mr A's feeding regime because she was "working under the mistaken assumption that the correct amount was being given".

Dr D's notes and the "Resident Medical Consultation Diary" show that he saw Mr A at the rest home on four occasions in 2000 (2 August, 27 September, and 20 and 27 December), six occasions in 2001 (21 February, 4 April, 11 July, 12 September, 3 October, 14 November), and once in 2002, on 11 January. None of Dr D's notes on Mr A's file refer to the PEG feeding regime. Dr D says he never saw the enteral feeding instructions provided by Ms H, and cannot recall being shown Mr A's weight charts. He recalled that whenever he visited, "there would always be a bag of Jevity up". He was unaware of any changes to the feeding regime and "just assumed the nurses were giving Mr A the appropriate amount". He did not discuss "numbers" in relation to Mr A's Jevity, but relied heavily on Mrs E to report Mr A's condition to him. While he did not believe Ms E had discussed reducing Mr A's daily intake from 1500ml to 1000ml, he states he would not have approved such a change without discussing it "at length" with a dietitian.

Commenting on these issues, Mrs C stated that her perception of her father's feeding regimen had been the same as that described by Dr D, that is, whenever she visited, there was a bag of Jevity up and she "didn't for a minute think the wrong amount was being given for the wrong period of time. I can understand how [Dr D] would make the same observation."  

Prescriptions

The first prescription issued for Jevity for Mr A is dated 2 March 2000, and signed by a locum for Dr I. It requests "Jevity 2 tins daily (for one month)". As a tin of Jevity contains 1000ml, this order would be consistent with Ms H's instruction that Mr A receive 2000ml per day.

According to a "Prescription Details Report" generated on 5 April 2002, the next prescription for Mr A's Jevity was dated 4 April 2000, and was signed by a doctor, it was for 60,000ml. This amount would have provided Mr A with a supply for just over 28 days, at a daily rate of 2000ml. Subsequent prescriptions signed by Dr I on 1 May, 27 May and 24 June 2000 were for a lower amount of 56,000ml. These would have provided Mr A with a 28-day supply, at a daily rate of 2000ml. Prescriptions for July, August and September 2000 were signed by a second doctor and was for 56,000ml.

Dr D first signed a prescription for Mr A's Jevity on 14 October 2000, for 42,000ml. On 11 November and 9 December 2000, he signed prescriptions for the same amount. As the decision had been made in June to reduce Mr A's daily intake to 1500ml, these three prescriptions would have provided sufficient supply for 28 days.

Dr D signed the second application to Health Benefits for special authority for Mr A's Jevity, on 21 February 2001. The "Special Authority for Tube Feed" form records the reason for requesting Jevity as "[Mr A's] inability to take oral feed (gastrostomy, reapplication, specialist [Dr B], GP [Dr D]". The same day, Dr D signed another prescription ordering 28,000ml Jevity.

All of the subsequent monthly prescriptions that Dr D signed for Mr A until March 2002 were also for 28,000ml. This would provide for 1000ml per day, for 28 days. Dr D explained that he ordered this amount because Mrs E told him there was a "stockpile" of Jevity available at the rest home.

In response to my provisional opinion, Mrs E explained that this "stockpile" occurred because a patient who had received Jevity [at a second rest home] had died, and his Jevity supplies, still within the "use by" date, were sent to the rest home for use there. Dr D confirmed this was his understanding, based on what Mrs E had told him at the time. Mrs E informed me that she believed this happened in part as a result of "cost cutting measures". She stated that there had been discussion as to how to use the Jevity from the second rest home, while keeping Mr A's prescription active, and "avoid pouring $400 down the drain". A decision was made to order less on prescription for Mr A, and make up the difference with the supplies that had come from the second rest home. Mrs E advised me that she now realised this was "a very foolish decision".  She stated that it was not until many months later that she realised that the Jevity stockpile had further accrued. In relation to Dr D's role in these events, she said, "he was not on the premises to check on the overstocking of Jevity and to count bottles, he was there to see patients".

Dr D said that it was Mrs E who requested prescription forms from the pharmacist, with the required amount of Jevity pre-printed. When Dr D signed these prescriptions, he assumed that Mrs E had requested the appropriate amount to maintain Mr A's daily feeding regime.

In relation to this issue, Dr D's expert advisor, on behalf of Dr D, advised:

"Signing orders for Jevity for varying volumes because of a supposed stockpile seems quite reasonable. … I debated this action with three local colleagues and they advised that they would not question the amount of Jevity on a prescription either. Neither, of course, would we question/doubt when a patient said they had 'run out' of their medication and needed more and the chemist had dispensed it and sought our approval/signing of a prescription at a later date. This sort of interaction is very much a part of a 'team approach' that is so necessary for caring for large numbers of patients."

Monitoring Mr A's condition

Ms H's initial instructions to the rest home in February 2000 were that Mr A be weighed every week and blood tests taken regularly, so that his feeding regime could be effectively monitored. These instructions were consistent with the rest home's Clinical Service Manual (dated 11 July 1999) which directed the following in relation to enteral feeding regimes:

"Purpose: to assist resident to attain and maintain an appropriate nutritional status, while ensuring resident comfort … oral intake should be monitored carefully on a Food Intake Chart. This will assist the dietitian to modify the enteral feeding regime in order to facilitate the transition to full oral intake if possible …

Decision making - a team decision is required to decide the type of enteral route, formulae type and amount, delivery regimen, when to commence, reduce and cease or continue feeding. The resident and their close family members and friends need to be involved …

Weight: initially the resident should be weighed weekly on the same scale in similar clothes and at a similar time of day if possible. This assists with assessment and monitoring of a resident's requirements. Long term residents require monthly weighing."

From the time of Mr A's arrival at the rest home in 1995, staff experienced difficulties weighing him. Initially, his inability to stand on ordinary bathroom scales and bear his full weight meant that his weight could not be easily monitored. While the subsequent acquisition of chair scales in 1996 made weighing Mr A somewhat easier, this also became problematic as his general condition deteriorated further. Mrs E explained:

"[Mr A's] general condition deteriorated until he was unable to weight-bear even with caregiver and high frame assistance. [The rest home] purchased a hoist which was interchangeable and could be used as both a standing or sling option. For a considerable time [Mr A] was transferred using the standing option but eventually the sling option had to be used as he became unable to use the standing option with comfort and safety."

Mrs E stated that over time, it also became increasingly difficult to weigh Mr A in a sitting position because he was unable to sit upright, and "for this reason he was not weighed as often as desired".  However, Mrs C disputed Mrs E's advice that Mr A could not sit upright. She clarified that "he didn't really have a huge problem with sitting upright, although sometimes he would need to be propped up. As time passed he became less stable but that was not really until the last couple of weeks of his life".  In Mrs C's view, it should have been possible to weigh her father by using a weigh chair and strapping him into it.

Mrs E summarised Mr A's weight record in a statement prepared for Dr B. It appears that this information was derived from a number of separate weight records, some of which were specific to Mr A and others for all the rest home residents. Not all of the entries on these records are clearly dated by year or month. Some entries are inconsistent between the individual and all-resident charts. Mrs E's summary of Mr A's weight is as follows:

"1998 - Jan 68kg, April 66kg, July 65.2kg, Oct 63.5kg, Dec 63.5kg

1999 - Mar 65.5kg, June 67.5kg, Sept 65.7kg, Dec 70kg

2000 - June 75.6kg, July 75kg, Aug 76kg, Sept 77kg, Dec 68.5kg (other recordings were made but I do not have that information which may have been inadvertently lost)

2001 - Mar 62kg, June 61kg, Sept 66.7kg, Dec 66.6kg

2002 Feb 57.3kg"

The rest home's medical records provided to me showed the following additional recorded weights: 

1998 - November 63.8kg;

1999 - February, 65.5kg; May, 69.5kg;

2000 - January, 70kg, February 68.5kg, March 66kg;

2001 - June, 65.2kg, August 65.2kg, September 66.6kg

Mrs E reiterated her concern that other recordings for the year 2000 may have been "lost", in her initial response to my provisional opinion (a telephone call to my Investigation staff). During that conversation, Mrs E stated that when Mr A's records had been presented to her by the rest home, for the purposes of responding to Dr B's complaint and the rest home's internal investigation, she had the "majority" of nursing notes, which were "a complete and utter shambles, with information missing" and it had taken her "four or five days to put them in order". She advised that there was "a whole sheet of weighs" recorded for Mr A that was not included in those records.

The available data shows that Mr A's weight decreased by 19.7kg between September 2000 and February 2002. However, Mrs E did not raise the matter of Mr A's weight loss and deteriorating state of health with medical staff or a dietitian.  She explained that this was because she, and all those caring for Mr A, had attributed his "slow weight loss" to "a natural progression of his deteriorating condition".

In relation to her failure to review Mr A's Jevity intake after implementing a "trial" reduction in September 2000, Mrs E said:  

"I can only think that this [the need for review] never came to mind as the resident was now tolerating the lesser amount and was comfortable and pain free. This fact must have led to a mindset that the reduced amount was correct and I never questioned this in any way at all. … I should state here that none of the RNs employed by [the rest home] over this period noticed this review had not been carried out although we all noted his general deteriorating condition."

Mrs E also said:

"No person at the time either queried the amount of Jevity being administered - whether they be other registered nurses on duty or the supervising doctor. I believe that this occurred due to poor record keeping in respect of the feeding regime and lack of accountability within the system for the monitoring of the feeding regime between the staff, the doctor and the dietitian. It is accepted that the dietitian should perhaps have been advised of the ongoing weight loss but as this was not seen as attributable to the feeding regime but rather a result of other factors this was not done. …

I accept that an error in the feeding regime was made. I have taken responsibility for that as the Clinical Nurse Leader because I had overall responsibility for [Mr A's] care. I deny however that the error was intentional or deliberate and that the error was continued as a result of any intentional or deliberate acts on my part. As [Mr A] deteriorated and lost weight all staff assumed that this was the normal pattern for someone of [Mr A's] age and condition. There was no assessment at any time by the doctor, other nurses or myself that the weight loss was caused by an insufficient amount of Jevity."

In response to my provisional opinion, Mrs E stated:

"I reduced the Jevity for a reason and omitted to check it.  Not one other staff member drew this to my attention, and out of God knows how many I was honest enough to say, this has happened."

Dr D stated that between September 2000 and February 2002 he noticed a slow deterioration in Mr A's condition, which he attributed to suspected recurrent reflux with aspiration and chronic chest infections. When Mr A's bedsores appeared in October 2001, Dr D attributed them to urinary and faecal incontinence, and immobility. Like Mrs E, Dr D noticed Mr A's weight loss and attributed it to "the aging process", lack of stimulation, and gross immobility leading to loss of muscle and bone mass. Dr D did not consider Mr A's condition or symptoms to be the result of insufficient dietary intake.

In relation to these issues, Dr D's expert advisor stated:

"… When a patient is being weighed regularly for whatever reason we would not be interested so much in the absolute weight, but more in the trend of the weight. Also, if there were a trend of weight loss it would be expected that this would be advised to the General Practitioner by the Registered Nurse. Similarly for blood pressure recordings, glucose levels etc.

… [Dr D] knew about [Mr A's] weight loss. Pressure areas are a consequence often of pressure and skin status generally. They do not always require that dehydration and malnutrition be present. They are a not uncommon event in elderly patients in both community hospital and main centre hospital situations. To suggest that they demanded an analysis or review of the Jevity dosage is to use the benefit of hindsight."

Dr D commented that "it is known that some PEG patients may not maintain weight in spite of adequate feeding. In some cases, although the feed is provided, the gut may not be able to absorb all the nutrients." He stated: "I was quite surprised and disturbed to hear later that a reduction in the feeding programme had happened and had gone undetected. Looking through the notes now it appears to have been a temporary reduction made which was not returned to normal levels."

In relation to Mr A's weight loss, Dr B informed the Coroner and the Commissioner that:

"[Mr A's] decreased weight and poor nutritional state decreased his physical reserves to deal with such [urinary tract] infection, and therefore contributed to his death.  I am concerned that the loss of weight was not acted upon, but understand that it can be very difficult to notice weight loss when you see a patient frequently. The weight loss was very noticeable to me as I had not seen [Mr A] over a two year period."

Mrs C advised me that she and Mr A's other family all noticed that he was losing weight, and believed he was deteriorating. They were shocked to discover that his weight loss was the result of a dietary change. Mrs C stated that she "definitely agrees" that, in the months before her father's death, everyone "thought the same thing", that his deterioration was the natural progression of his age and ill health, and "no one had picked up what was going on". However, Mrs C was also concerned by Mrs E's "vague" comment that she attributed Mr A's weight loss to "other factors" rather than his feeding regime, and said it would have been helpful for Mrs E to have advised what these factors were.

Changes to regime and oral feeding

On 6 April 2002, Mrs E's manager, Mrs K, telephoned her at home to discuss Dr B's concern regarding Mr A's feeding regime. Mrs E then attended the rest home to speak to Mrs K in person.

Sadly, Mrs K died during my investigation. However, Ms F (the rest home operations manager) provided a copy of some handwritten notes, which I understand to have been made by Mrs K during her telephone call and meeting with Mrs E. Ms F also provided a set of typed notes of an interview subsequently held on 9 April 2002 between herself, Mrs K, Mrs E, and a support person.

The handwritten notes for 6 April 2002 state:

"[Mrs E] arrived approx 3.30pm.

Looked at file said (and was very upset) 'I take full responsibility for changing the feeding. It's my mistake and I accept that'.

I said the Dr would have had to change it. She said he didn't know anything about it and wasn't his fault. [Mr A] had been going out a lot, was stopped [by] 500 to assist him going out - forgot to put it back up again. Very upset about it. Did give him chocolate pudding but didn't tell speech therapist because they wouldn't approve. Loved choc pudding - only thing he had left to enjoy.

[Mrs E] was very upset. Offered support."

The typed notes of the meeting on 9 April state:

"[Mrs K]:  On 13 September was [Dr I] on then?

 [Mrs E]:   No - [Dr D]

 [Mrs K]:  Do you believe it was [Dr D] that made the changes?

 [Mrs E]:  No - I obviously did - through some error.

 [Mrs K]:  Who changed it?

 [Mrs E]:   I must have

 [Mrs K]:  Are you aware that you cannot make changes without Doctor's                                            authorization?

 [Mrs E]:  Yes

 [Mrs K]:  Why did you make the changes?

 [Mrs E]:  No idea. Had a whole lot of Jevity from [the second rest home] - so much - expiry dates - asked [Ms H] not to send so much.

 [Mrs K]: Are you aware that by cutting Jevity this would affect nutrition?
 [Mrs E]:  I not only made an error - but compounded it.

 [Ms F]:   You made the changes?

 [Mrs E]: Obviously I did - no-one else did.

 [Mrs K]:  Am I correct in that staff say you ordered it?

 [Mrs E]:  Yes.

 …

 [Mrs K]: What did you do about his dropping weight and blood pressure and pressure reas?

[Mrs E]:   Doctor looked at pressure areas - [Mr A] was on an air mattress.

[Mrs K]:   Did you not equate this with nutrition?

[Mrs E]:   No - he could eat - chocolate mousse.

[Mrs K]:   When did this cease?

[Mrs E]: It was never consistent - sometimes he would say yes to food and                                      sometimes no.

[Mrs K]: Speech therapist said he had no swallow reflex.

[Mrs E]: That's not what she told me - said he swallowed quite well but could  develop swallow reflex. I have no extra notion to give you. It happened - not only did it happen - I compounded it."

In response to my provisional opinion, Mrs E advised that she had not made her own notes of these conversations, and Mrs K's notes had not been shown to her after the meetings in order that she could verify what had been recorded. Accordingly, Mrs E disputes what has been recorded by the rest home and provided to me. In particular, she objects to the note of the 6 April conversation that she "didn't tell speech therapist [about oral feeds] because they wouldn't approve". Mrs E stated that this is "untrue, really distressing, and something I would never say".  She advised that she has a very good memory of the meetings with Mrs K and remembers informing her "for a fact" that the speech therapist had told her "that [Mr A] would be able to swallow bland foods that he enjoys and if I felt comfortable giving him food like that on occasion then that would be ok". Mrs E said that she would not put that sort of responsibility onto her staff, but on occasion, she "certainly gave him oral food, and he certainly swallowed it".

When asked by my investigation staff why she had not recorded any such discussion with the speech therapist, or the fact of oral feeds in the nursing notes, Mrs E advised that she would not write such matters in the notes because "junior staff might think that it was okay to feed him all the time, and I would not want junior staff to come along and feed him orally in case he could not tolerate it".

Mrs E advised that her view was that Mr A was at risk with clear fluids but thickened fluids "were ok", and she had "quite a conversation with the speech therapist about it, it was not just in passing". She recalled discussing that if Mr A was "alert and bright and having a good day then it would not hurt to try and see if he was capable of swallowing". She explained that the nursing notes do not record "every single conversation or action because you don't want an inexperienced caregiver deciding he can have chocolate mousse. You have to be very careful what you write so that you don't give license to people to do what they like." 

Mrs E also expressed the view that the rest home's manager, Mrs K, had been "trying to work within a budget and cut corners, as much as possible within guidelines", and that the rest home's private dietitian was "expensive" and had been asked not to visit often.

Staff training

The Commissioner was provided with Mrs E's in-service training records. She stated that she had attended as many in-service seminars as possible, "within time and budget constraints", and that she had been instrumental in helping to establish a special interest gerontological group for RNs in the area.  She had also organised on-site in-service sessions for the rest home staff, "on a regular basis". However, she also claimed that her training in the administration of enteral feeding to patients was limited. She said: "Despite my experience I had never had formal training in the use of Jevity and nor were there any policies regarding the use of this feeding regime at [the rest home]." She advised that the only training the rest home staff received on enteral feeding was from a sales representative who demonstrated the correct use of the Patrol pump and tubing system. She stated that it was not until 5 June 2002, when she spoke to a hospital dietitian, that she learned that there is a minimum amount of Jevity that a patient requires each day in order to receive nutritional benefit. She understood that amount to be "1440ml per 24 hours", and said: "I was not previously aware of this. Discussions with many nursing colleagues revealed that none of them were aware of this fact either."

Auditing processes

Records provided by the rest home company show that an on-site evaluation and audit was carried out by external auditors on 16 March 2000. The lead auditor's report dated 21 March 2000 noted that since the time of the last audit there had been quality improvement specifically in the areas of staff education, care policies, and documentation.

However, both Mrs E and Dr D informed the Commissioner that, with the benefit of hindsight, they realise that their own and the rest home's systems for assessing patients and monitoring their ongoing care were insufficient. Mrs E stated:

"In hindsight a better assessment and auditing procedure would have discovered my oversight in not [scheduling] the review of the trial Jevity reduction for [Mr A]. This oversight should in reality have been discovered by at least one or more members of the professional team. Had the review not been overlooked, I would have reported the results of the trial to the Doctor and also contacted a dietitian. Instead, because the resident was now comfortable and pain free, the lesser amount became set in my mind as correct until April [2002]. All staff were aware of a weight loss and general deterioration and assumptions were made of the resident's condition but again in hindsight on possibly the wrong basis."

Dr D stated: "In hindsight I feel that there should have been regular multidisciplinary reviews of [Mr A] involving dietitians, nurses, pharmacists, speech therapists, caregivers and doctors. I advised [Mrs K] the manager [of the rest home] of the importance of this approach in the future."

Subsequent events

Following Mr A's death, Mrs E was suspended from her employment at the rest home. She ceased working at the rest home on 9 April 2002 and subsequently resigned.

The rest home company conducted an internal inquiry into the events surrounding Mr A's death and informed the Commissioner that, as a result, the rest home's  Continuous Quality Improvement ("risk management") strategies, relevant policies, procedures and internal audit processes have been reviewed. The positions and job descriptions for the "business manager" and "clinical nurse leader" were amended. Dr D was asked to assist the rest home to develop appropriate protocols and processes to ensure that all feeding regimes specified by a dietitian are adhered to. Support for the rest home's clinical nurse leaders has been implemented, and monthly meetings are held at which clinical care policies and procedures are discussed and reviewed. A training programme for all registered nursing staff, which includes training in PEG feeding regimes, has been implemented. Protocols for recording GP medical reviews have been reviewed and updated, and the rest home now has "individualised integrated notes" for each resident.

Responses to Commissioner's Provisional Opinion

Mrs C

In response to my provisional opinion Mrs C advised that she herself is a registered nurse, and knows that changing a feeding regime for a patient without reference to a dietitian or GP is "not good practice and I would not do it myself". She also said:

"Despite all this, I did get on very well with [Mrs E] and I was happy with the staff and happy with what they did [with the exception of the diet change]. … There was no complaint from my Dad about [the rest home's] care and as far as we were concerned, apart from the mistake we were very happy with the care and believe he was well looked after. I am not involved in this complaint as a malicious person; we did appreciate the care they gave him. … It just comes back to what I know as an RN, that in any patient care type situation, if I think there needs to be a change to a regime I would always consult the GP or dietitian. That would be my main concern, but not only regarding [Mrs E]. There were other RNs there, and the GP, and they didn't pick up on it either."

Mrs E

Mrs E's initial response to the Commissioner's provisional opinion was a telephone call to my investigation staff, during which she expressed hope that as a result of this investigation, there would be "a nationwide recommendation in relation to Jevity feeding because every single person I have spoken to has played with Jevity feeding for a variety of reasons such as the patient's need to go out or because it made him unwell. It fluctuates and people don't ring the dietitian each time it happens."

In a subsequent letter dated 5 November 2004, Mrs E confirmed that she presently has a practising certificate (current to 31 March 2005) and is entitled to practise as a General and Obstetric Nurse. In March 2004 she commenced employment for 24 hours per week on a "permanent relieving" basis (2-3 days a week) as a Registered Nurse at a care centre for the elderly in her area. Her job description states that her role includes responsibility for "the delivery of safe nursing care, advice and training … [as] the Primary Nurse for a designated group of residents". One of her "key performance indicators" is ensuring that "all residents/patients receive adequate nutrition".

In a letter dated 10 December 2004, Mrs E's legal representative clarified that "at this point in time [Mrs E] is not in her current employment administering any enteral nutrition to any patient … [She] wishes to assure the Commission[er] on a without admission of any liability basis that if at any stage there was a prospect she would not do so without additional relevant training."

Mrs E's lawyer also stated:

"[The Commissioner's provisional report] purports to hold [Mrs E] entirely responsible for the nutrient aspects of [Mr A's] case. The findings in this respect do not accord with sound medical and pastoral care practice. There is no evidence whatsoever to link [Mr A's] death with any act or omission of [Mrs E] (and even if there were, which we say there isn't, then she alone was not responsible therefore).

The primary duty of care rests in this case with [the rest home] and the secondary duty of care with the general practitioner under the terms of the contract with the rest home.

The requirements of the general practitioner in relation to nutrition are in turn delegated to the pharmacist and dietitian and implemented by more than one registered nurse. No one at any time in some 18 months queried the amount of Jevity being administered …"

Mrs E's lawyer also queried whether the rest home should be vicariously liable for any breaches of the Code by Mrs E.

Dr D

The general practitioner providing advice in support of Dr D, stated:

"The care of patients in the community is often only possible if there is an effective and co-operative team approach. This team approach is even more a requirement when the patient is in a rest home or hospital, and yet even more important when the patient cannot converse. The effective team requires that each member of the team undertakes their specific role and advises if there is any problem in sustaining that role. There must be transparency and honesty between partners. I suggest this would have been the expectation of [Dr D] whenever he had his initial discussions with [Mrs E] prior to visiting the patients of the day. It is certainly my expectation in these situations."

Dr I

Dr I responded to my provisional opinion as follows:

"I was sad to hear of [Mr A's] death … I wish to confirm that I have ceased to be the Medical Practitioner for [the rest home] in June 2000 and had no further involvement with [Mr A] as a consequence. I note the concern with the regard to the reduction of daily Jevity. I agree with [Dr B's] opinion that the prescription and direction of Jevity feed should be monitored and directed by a qualified dietitian and we as doctors normally just sign prescriptions presented to us. We rely on feedback from nursing staff as to general progress of a patient with regards to alteration in weight, general health, etc. We normally see patients when visiting a rest home at regular intervals as required by the Government and patients who present as a concern to nursing staff. It is a concern that it became apparent that [Mr A] was not receiving the full amount of Jevity required for his physical needs.

I wish to state that it is my opinion that Management of Rest Homes need to ensure that their nursing staff are fully trained for caring for patients in poor nutritional status like [Mr A]. I am not certain what kind of training the staff at [the rest home] have had for caring for such patients. As a visiting General Practitioner I would expect that the nursing staff had received the required training. I would also consider that the auditing process of Rest Homes would have covered this area.

Finally I would like to conclude with a character witness of [Mrs E]. I have always found her to be very professional and competent as a Nurse Clinician and it is unfortunate that it appears as though she had not had sufficient training with PEG feeding. I would feel that it would be imperative for Rest Homes to revise their policies with an approach to multidisciplinary team involvement in all such cases."

Independent advice to Commissioner

Nursing Advice

Independent expert advice was obtained from Ms Andrea Avent, Registered Nurse (Nurse Consultant, Aged Care). Ms Avent was provided with Dr B's correspondence, and documents responding to the Commissioner's notification of investigation from Mrs E, Dr D and the rest home company. Mr A's medical records were also provided. Ms Avent was asked to consider the following questions:

"Did [the rest home] provide staff with sufficient information so that they could adequately manage patients on Jevity?

Were the policies, protocols and training relating to Jevity management at [the rest home] appropriate?

Were the instructions provided by the hospital dietitian in June 2000 sufficient to enable [the rest home] staff to manage [Mr A's] enteral feeding?

Were [Mrs E's] actions in reducing the Jevity level without prescription because of [Mr A's] abdominal pain and distention, and social reasons, appropriate?

Was it reasonable for [Mrs E] to attribute [Mr A's] weight loss to a natural progression of his deteriorating condition?

Should a registered nurse using reasonable care and skill have recognised that [Mr A's] condition had deteriorated, and sought medical or a dietitian's advice?

Do you consider that the record-keeping was adequate in that the trial of Jevity reduction was not reviewed/picked up? 

If any of [Mrs E's] actions would be considered not to meet professional standards expected of a registered nurse with reasonable skill and knowledge, can you please advise whether these actions would incur mild, moderate or severe disapproval from peers.

Were the auditing processes at [the rest home] adequate?

Are there any aspects of the care provided which you consider warrants either:

• Further exploration by the investigation officer?
• Additional comment?"

Ms Avent's report to the Commissioner, dated 30 January 2003, advised as follows:

"It is my professional opinion that the care provided by [Mrs E] to [Mr A] did not meet professional standards required by a Registered Nurse using reasonable care, skill and knowledge.  I believe that [Mrs E's] actions would incur severe disapproval from peers.  I believe that [Mrs E] is in breach of Principle Two (2.2, 2.3, 2.4, 2.5, 2.9) of the Code of Conduct for Nurses 1995.

[Mr A] was unable to communicate his needs effectively and was fully dependent for all of his cares and his nutritional input.  The goal of enteral feeding is to 'achieve and maintain optimum nutritional status when oral feeding is impossible or inadequate, even though the gastro intestinal tract is functioning' (Quality Food and Nutrition Services; Julian Jensen/Moira Styles NZDA).  He had the right to receive professional nursing and medical care of a high standard expected of a private hospital facility.  Quality care results from accurate and ongoing assessment, thorough and professional documentation and record keeping, effective co-ordination of services and care involving allied professionals and appropriate reporting procedures. [Mrs E], as Clinical Nurse Leader, was the key worker involved in [Mr A's] care and although she appeared to have a demanding workload and other Registered Nurses were remiss in their observations and record keeping, the responsibility lay with her to ensure that care was of an acceptable standard.  She made an unsupported, unilateral decision to reduce the Jevity amount, which was outside her professional boundaries.

1. It is my opinion that [the rest home] did provide staff with sufficient information so that they could adequately manage patients requiring enteral feeding. Documentation pertaining to enteral feeding management covered practical administration, principles surrounding the process and guidelines in ongoing assessment and management.  However, the Registered Nurses could have benefited from specialist training from a Registered Dietitian to enhance assessment and guidelines criteria.  The Clinical Nurse Leader is responsible for 'keeping Clinical Procedure Manuals up to date' (Part 3 of Clinical Nurse Leader job description issued October 1999).
2. There were apparently 'instructions' issued by the first GP [Dr I] and a 'nutritional person' on 26.06.00 according to the copy of the response to [Dr B] outlining the investigation. There is no evidence of who gave the 'instructions' (to [the RN]  in the progress notes 27.6.00) to reduce the feed to 1800ml then 1500ml two days later and no evidence of a new Enteral Feeding Regime Plan having been sent to [the rest home].  There was no supporting evidence of these 'instructions' in the doctor's notes and no evidence of follow up from a dietitian.  It is my opinion that the 'instructions' provided by the hospital dietitian were minimal, not documented and there was no follow up and although sufficient enough for staff to continue to manage the feeding regime, I would expect more full instructions and guidelines than what were provided.  There was no reference to flushes.  The RN taking the verbal instructions did not identify the 'nutritional person' and this made the 'instruction' more vague.  There was reference to 'weekly weigh' which was probably 'instruction' via the dietitian. This 'instruction' was not followed by the nursing staff, nor documented in the nursing care plan.
3. It is my opinion that [Mrs E's] actions in reducing the Jevity level to 1000ml per day, without prescription, because of [Mr A's] abdominal pain and distention, and social reasons were inappropriate.  [Mr A] was going out with family during the day.  The prescribed amount of Jevity could have been administered on his return.  Feeding could have commenced at 1700 hrs until 0800 hrs (at 100ml per hour plus flushes) or within a flexible time frame to suit his social commitments and meet his nutritional requirements.

There was ample flexibility for the feed to be given over a longer period if tolerance was an issue.  The abdominal discomfort and distention should have been reported to the GP and dietitian in the first instance.  Once impaction was discounted then it may have been the result of the feeding regime, PEG positioning or product intolerance.  Medical and dietary expertise was required at this point before any decisions were made about Jevity volumes.

[Mrs E] did not consult the doctor about the 'ongoing' abdominal discomfort and distention until late September 2000.  I note that [Dr D] made a note on 2/8/00 'had abdo dist [abdominal distention] earlier - abdo soft now. 2pm BO [bowels opened]' and there is no further mention made by the GP until 27/9/00.  She had started reducing the Jevity from 6 September 2000 and regularly that month.  There was no mention of reducing the Jevity to the GP on his visit on [27] September 2000.  At that time [Mr A] did not have impaction.  There was no follow up to ascertain the reasons for the discomfort even after this time.

4. In my opinion it was not reasonable for [Mrs E] to attribute [Mr A's] weight loss to a natural progression of his deteriorating health.  [Mr A] weighed 67kg pre PEG insertion.  He gained weight, even though in compromised health, to weigh 77kg in September 2000.  He was not losing weight due to his deteriorating health.  He started to lose weight from the time that the Jevity was reduced to 1000ml per day plus flushes.  He lost a total of 19.7kg from September 2000 until February 2002.  In light of the fact that [Mr A] maintained ongoing poor health I attribute the weight loss directly to lack of nutrition and hydration.  The fact that [Mr A] weighed 57.5kg in May 1997 is irrelevant to his ongoing weight loss after the Jevity was reduced by [Mrs E].  [Mr A] was in compromised health in 1997 and was not receiving nutrients via a PEG at that time.

5. In my opinion a Registered Nurse using reasonable care and skill would not have reduced the Jevity amount in the first instance and would have sought medical [assistance] and a dietitian's advice before any enteral feeding decisions were made. Further, once it was obvious the patient was deteriorating, medical and dietary expertise should have been engaged as soon as possible.  A [registered nurse], as a key worker in a patient's care, has a responsibility to co-ordinate care to meet the patient's needs, making timely referrals to allied professionals when appropriate.  In this case early referral was appropriate.  The deterioration would have been more evident if monthly weighs were being conducted and recorded on a separate chart for [Mr A].  This is not the case.  It is my interpretation of [the rest home] clinical resource documentation that weekly weighs would be required if a patient receiving enteral feeding was in an initial phase; reducing the Jevity volume becomes an initial phase.

6. The reduction in Jevity is referred to as a 'trial'.  The Jevity should not have been reduced without a doctor's and dietitian's directive.  However, when the Jevity was reduced, without prescription, there was no plan or record keeping procedures put in place to effectively monitor the effects of the reduction and review it.  The reduced amount was documented on the nursing care plan at a later date of 22.02.01 and again on 25.8.01.  In my opinion the record keeping was of a poor standard.  Entries in the nursing progress notes do not explain the nursing assessment process behind the unilateral decision to reduce the Jevity.  There was no evaluation entered immediately into the care plan, therefore no review date.  No notation was made in the diary.  There is no evidence of any discussion with the doctor or a dietitian.  If the reduction had been correctly prescribed and on a 'trial' basis, weekly weighs would be required (I would expect an individual weight chart for [Mr A] as his condition was complex), [and] a fluid balance chart would be reintroduced.  The progress notes were poor and there was no mention of a 'trial' or any review date.  The progress notes were generally poorly kept as some progress sheets just have '[a nickname]' on both sides with no other identifiable reference to [Mr A].

There was no full wound assessment completed (to monitor pressure areas) which would be another relevant record to keep for review.  A new Registered Nurse would not be able to 'pick up' that the reduction was indeed just a 'trial'.  In my professional opinion the record keeping and documentation was of an unacceptable standard for a private hospital.

7. The Jevity volume reduction in all probability would have been 'picked up' with a clinical documentation audit.  It would have been discovered that there was no cross reference to a directive from a doctor or dietitian and no timely entry with review in the nursing care plan.  A medical documentation audit would have revealed lack of three monthly medical reviews and very little reference to the enteral feeding regime.  It would also have picked up the absence of regular biochemistry blood tests, which are required to be done regularly.  Clinical audit would also have 'picked up' an absence of multidisciplinary meetings regarding [Mr A's] care which is very important when caring for patients with complex medical problems.  It would have become evident that there was no multidisciplinary team involvement in regards to follow up of the speech language therapist's recommendations.  In my opinion the audit processes at [the rest home] were inadequate and could have averted the ongoing malnutrition and dehydration.

In conclusion it is my opinion the enteral feeding regime was mismanaged to the detriment of [Mr A]. [Mrs E] was the key worker responsible for [Mr A's] overall care.  She made a unilateral decision to reduce the Jevity and flush volumes to an inadequate level to maintain healthy hydration and nutrition.  The mismanagement was compounded by the second General Practitioner and the dietitian.   I note [Dr B's] letter to [the Coroner] dated 6 May 2002 that the feeding regime reduction to 1800ml was 'appropriately discussed with the Dietitian and the GP overseeing [Mr A's] care (who at that stage was [Dr I])'.  There is no documented evidence that the dietitian followed up on her verbal instructions. I suggest that further investigation be made of their roles [relating] to the events surrounding the enteral feeding regime and management.  Medical reviews were not thorough and infrequent.  Bloods were not taken as requested and prescription volumes had decreased from 42,000 to 28,000 in February 2001.  The GP did not question these things.  Adequate auditing systems were not in place to monitor clinical care in the facility and Registered Nurses working with [Mrs E] were not documenting adequately nor keeping adequate records.  There was also evidence of slow and untimely reporting ie: [Mr A] had 'Urine thick and offensive' (Nursing progress notes 24.03.02) and 'appears to have lost a lot of weight lately' (nursing progress notes 24.03.02) and 'very sleepy and dehydrated' (nocte nursing notes 24.03.02) and 'several areas semi black around rim' (nursing notes 27.03.02) referring to the pressure areas.  A Doctor was not called until 27.03.02.  The urinary tract infection should have been reported when [Mr A's urine was] noted as thick and offensive and antibiotics could have been commenced sooner.  I noted in the Clinical Nurse Leader and RN job descriptions (1999) it is stated 'discouraging overuse of medical coverage' (also noted that [the rest home's revised] Clinical Nurse Leader/Nurse Manager job description has this phrase removed), this may have prevented earlier medical intervention.

[Mrs E] made a deliberate unilateral decision, an ongoing error of judgement, to reduce the Jevity and flush volumes and changed a dietitian's enteral feeding regime which had been [received on] 28.02.00.  The instruction 'notes' on this directive were clear but were not followed.  Further evidence of a unilateral decision made regarding [Mr A] is that she admitted to feeding him chocolate pudding contrary to the speech therapist's advice (17.10.00), the family's wishes (nursing care plan 20.02.01) and without a suggested combined team and family meeting (speech therapist's recommendation 17.10.00). 

There is no documented evidence that [Mrs E] made the [rest home company] aware of any concerns she had regarding policies, procedures, training and workload.   Again, I believe that the care provided by [Mrs E] did not meet professional standards required by a Registered Nurse using reasonable care, skill and knowledge and this would incur severe disapproval from peers."

General Practitioner Advice

Independent expert advice was also received from Dr Wendy Isbell, general practitioner, in a report dated 5 June 2004. Dr Isbell's qualifications are MBChB (University of Otago) 1970, MRCP(UK) 1975, FRACP 1983, and FRNZCGP 1998. Her experience includes work as a Physician in Health Care of the Elderly at The Princess Margaret Hospital. The information provided to Dr Isbell, and her advice in response to the Commissioner's questions, is set out below:

"Supporting Information

I have read the supporting information listed below:

• Report to the Coroner of [Dr B], 23 May 2002, labelled A (pages 1-3)
• Letter to the Commissioner from [Dr B], 20 January 2004, labelled B (pages 4-6)
• Transcripts of telephone discussions between [Mrs C] and investigator, labelled C (pages 7-9)
• Report to the Commissioner from [Mrs E], 8 November 2002, labelled D (pages 10-14)
  • Statement prepared by [Mrs E] for [Dr B], 26 April 2002, labelled E (pages 15-18)
  • Report to the Commissioner from [Ms F], [the rest home], 19 November 2002, labelled F (pages 19-431), including:

a)             Transcript of interview with [Dr D] by [a staff member], 16 April 2002

b)             Transcript of interview with [Mrs E] by [Ms K and Ms F], 9 April 2002

c)             Response to [Dr B's] report, undated and unsigned

d)            Training manuals provided by [the rest home] on enteral nutrition and PEG systems, including a video tape

e)             A record of training provided to [Mrs E] while at [the rest home]

f)              Job descriptions for manager and clinical nurse leader

g)             Policies and procedures on pressure area care, medication management, enteral  feeding and nutrition

h)             [The rest home's] Continuous Quality Improvement Plan for 2002

• [Mr A's] medical records and notes from [the rest home], labelled G (pages 432-810)
• Letter from [Ms F] of [the rest home], 18 February 2004, labelled H (page 811)
• [Mr A's] medical records and notes from [the DHB], labelled I (pages 812-907)
• Letter to the Commissioner from [Dr D], 9 December 2002, labelled J (page 908)
• Letter to the Commissioner from [Dr D], 20 January 2004, labelled K (pages 909-912)
• Summary of dietitian service provided to [Mr A] while at [the public hospital], prepared by Ms J, 14 April 2003, labelled L (pages 913-915)
• [The DHB's] 'Guidelines for Home Enteral Feeding' dated August 2001, labelled M (pages 916-929)
• Information provided to the Commissioner by [Dr I], 22 May 2003 and 11 June 2003, labelled N (pages 930-931)
• Letter to the Commissioner from [Ms H], 9 October 2003, labelled O (pages 932-933)
• Letter to the Commissioner from [the Coroner], 31 October 2003, labelled P (pages 934-935)
• Letter to the Commissioner from [Dr D], 20 January 2004, labelled Q (pages 936-938)

• Expert nursing advice provided by Ms Andrea Avent, 30 January 2003, labelled R (pages 939-942)

Opinion

Were sufficient medical reviews of [Mr A's] condition conducted?

In 1996 and 1997 the nurses kept a sheet Resident Medical Consultation Diary, with dates, and entries 'R' and 'NR', which I assume meant 'reviewed' or 'not reviewed'. [Mr A] was seen regularly at that time. (Supporting Information 569-574.) Later in time there are Resident Medical Consultation Diaries which seem to give dates but not years (Supporting Information 555, 563-564). Some sheets have alternate columns saying 'Act/Type' (Supporting Information 559-564), but I cannot work out what these abbreviations would mean.

There are five pages of Medical Continuation Notes (not always labelled as such) (Supporting Information 595-602). [Dr D's] notes are on Supporting Information 597 then 596, and are correctly dated. His notes are more frequent than three-monthly, but less frequent than monthly, which I think is the required standard. However in a residential situation the contracted doctor is usually reliant on the nursing staff to supply a list of patients who need to be seen at each visit.

[Dr D's] notes refer to intercurrent illnesses such as chest infections, bleeding from the gastrostomy site, urinary tract infection, and pressure areas, and would seem to me to be appropriate.

Were the medical reviews that were conducted by [Dr D] between September 2000 and March 2002 appropriate in view of [Mr A's] deteriorating condition?

In view of [Mr A's] deteriorating general condition, [Mr A] should have been medically reviewed. However, I am not sure that [Dr D] would have been aware of [Mr A's] deteriorating condition, as his weight loss was gradual, and his weight had not been measured for several months until shortly before his admission to hospital. He was also dependent on the nursing staff assessments [as to] how [Mr A] was.

Should [Dr D] have reviewed [Mr A's] dietary needs between September 2000 and March 2002?  If so, when?

I think it would have been appropriate for [Dr D] to review [Mr A's] dietary needs if he was made aware that [Mr A] was losing weight, but for much of this time [Mr A] was not being weighed.

In his letter (Supporting Evidence 911) [Dr D] stated that he regularly checked if there was any problem with any aspects of [Mr A's] parenteral feeding programme, and I think this was appropriate and good practice.

[Mr A's] feeding regime was set up by a registered dietitian at [the public hospital], and [Dr D] would assume that the amount and type of feeding was correct. As far as I am aware it is the nursing staff's responsibility to carry out feeding prescribed by the dietitian. It would be assumed that the nursing staff were continuing to carry out the instructions given. If the amount given had changed, it should have previously been discussed by the doctor and the dietitian.

Did [Dr D] appropriately prescribe Jevity nutrition between September 2000 and March 2002?

As with all supplemental foods, Jevity is not on the free prescribing list, and a special authority must be first applied for by a Specialist. This was first obtained by [Dr B], geriatrician, and reapplied for by [Dr D], which is appropriate.

The general practitioner then needs to write an order for the patient, or send a bulk order to the suppliers of the supplemental foods. [Dr D] did this on a prescription form, which is quite appropriate. But this did not alter the standing order for the Jevity administration, as had been made by the hospital dietitian, and should have been carried out by the nursing staff.

Was there anything from the prescriptions which should have alerted [Dr D] to the reduced dosage (notwithstanding stockpiles)?

No, I don't think so. He was reassured that there was enough [Jevity] available. He had no reason to suspect that the amount of Jevity being given had been changed and was insufficient. He was reassured when he asked the nursing staff about any problems with [Mr A's] feeding.

Is it reasonable for [Dr D] to attribute [Mr A's] weight loss to general deterioration?

Yes, as elderly people with multiple illnesses progress, they can become more wasted. Also, there can be changes in the bowel which lead to decreased absorption of nutrients, and poorer nutrition.

Indeed, this is what was first thought by [Dr B] when [Mr A] was admitted to [the public hospital] on 31 March 2002. She noted his malnutrition and dehydration, 'awful' pressure ulcers, and anaemia and low albumin (protein) on his blood tests.  Fortunately she was presented with information that led to her discovery that [Mr A] had not been receiving his prescribed amount of nutritional feeding, in other words that the malnutrition and dehydration was not due to his illness but human error.

Should [Dr D] have followed up on the test results requested in September 2000 and which do not appear to have been conducted?

Yes. If the problem had not been resolved, [then] the issue of blood tests would come up again, and the former order could be traced, or the results could be repeated." 

Dr Isbell was also asked to comment on the general issue whether Dr D provided services to Mr A with reasonable care and skill. The questions for Dr Isbell's consideration (in italics), with her answers, were as follows:

"Whether [Dr D] adequately assessed [Mr A] or reviewed his condition between September 2000 and March 2002?

Yes, I think he did. His management of [Mr A] would seem to be appropriate, and adequately documented.  

Whether [Dr D] should have reviewed [Mr A's] dietary needs between September 2000 and March 2002?

In theory, of course, the doctor is responsible for all aspects of the patient's care. But if [Mr A's] feeding records were not seen by [Dr D], and he was not notified of the change in feeding regime, he would assume that [Mr A's] dietary needs were still being met.

Whether [Dr D] appropriately prescribed Jevity nutrition between September 2000 and March 2002 without assessing whether the amount prescribed was sufficient for [Mr A]?

It was actually the hospital dietitians who had prescribed the Jevity and the amount to be given. [Dr D] was writing prescriptions to assure continued supply. He was obviously not given an overview of the nursing situation, and the management and feeding of [Mr A], by the nursing staff.

In summary, I do think [Dr D] provided services with reasonable care and skill to [Mr A].

However, I do think a serious error was made by the nursing staff, and that procedures should be tightened in the residential home as a result of it."

Code of Health and Disability Services Consumers' Rights

The following Rights in the Code of Health and Disability Services Consumers' Rights are applicable to this complaint:

RIGHT 4

Right to Services of an Appropriate Standard

1)      Every consumer has the right to have services provided with reasonable care and skill.

2)      Every consumer has the right to have services provided that comply with legal, professional, ethical, and other relevant standards.

…

5)  Every consumer has the right to co-operation among providers to ensure quality and continuity of services. 

Other relevant standards

The Code of Conduct for Nurses and Midwives (Nursing Council of New Zealand, September 1999)

"Principle Two

The nurse or midwife acts ethically and maintains standards of practice.

Criteria

The nurse: …

2.1     is guided by a recognised professional code of ethics applied to nursing or midwifery;

2.2         uses knowledge and skills for the benefit of patients/clients/community;

2.3         is accountable for practising safely within her/his scope of practice;

2.4         demonstrates expected competencies in the practice area in which currently engaged;

2.5         upholds established standards of professional nursing or midwifery practice;

2.6     is responsible for maintaining her/his professional standards;

2.7     maintains and updates professional knowledge and skills in area of practice;

2.8     observes rights and responsibilities in the prescription, possession, use, supply, storage and administration of controlled drugs, medicines and equipment;

2.9     accurately maintains required records related to nursing or midwifery practice."

These principles are unchanged from those cited by Ms Avent in the 1995 edition.

Medicines Act 1981

Section 19

1) A prescription medicine may be administered to any person only in accordance with -

(a) the directions of the authorised prescriber who prescribed the medicine; or

(b) a standing order …

3) Every person commits an offence against this Act who contravenes subsection (1).

Opinion: Breach - Mrs E

Under Right 4(1) of the Code of Health and Disability Services Consumers' Rights (the Code), Mr A was entitled to have services provided with reasonable care and skill. Pursuant to Right 4(2), Mr A was also entitled to receive services that complied with legal, professional, ethical and other relevant standards. Those standards include the rest home's internal policies for the administration of enteral feeding, and principles in the Code of Conduct for Nurses. The issues raised by Dr B's letter to the Coroner, and her subsequent report to the Commissioner, call into question the standard of care provided to Mr A by Mrs E, Clinical Nurse Leader at the rest home. For the reasons that follow, in my opinion Mrs E did not provide services of an appropriate standard to Mr A and breached Right 4(1) and Right 4(2) of the Code.  By failing to take appropriate steps to co-operate with other providers, I consider that Mrs E also breached Right 4(5) of the Code.

Unilateral decisions in respect of Mr A's feeding regime

Jevity is described by Pharmac as a prescription medicine. Section 19(1) of the Medicines Act 1981 states that a prescription medicine may be administered only in accordance with the directions of the prescriber, or a standing order. I consider that the initial PEG feeding regime established for Mr A by Ms H on 28 February 2000 constituted a standing order. Dr I, Dr D, and other GPs attending the rest home facilitated the continued supply of Jevity from the hospital pharmacy to Mr A, by signing the pre-printed prescriptions ordered by Mrs E. In my view, it was incumbent on Mrs E to ensure that she ordered sufficient volumes of Jevity to cover Mr A's daily intake, as instructed by the dietitians on 28 February 2000 and 27 June 2000.

Ms H expected that her instructions would be reviewed by a private dietitian. This did not occur. Similarly, it appears that there was no follow-up by either a hospital or privately contracted dietitian after the decision was made by a second dietician, in June 2000, to reduce Mr A's Jevity to 1500ml. My nursing advisor, Ms Avent, commented that this decision was not referred to in Dr I's notes, and the second dietitian's "instructions" were "minimal".

Mrs E was on leave when this reduction was approved. I note her advice that thereafter, the rest home did not receive a new feeding instruction sheet from the hospital dietitian, and no follow up of these changes was undertaken by Dr I (presumably because, shortly thereafter, he was replaced by Dr D). While I accept that these matters all contributed to the lack of continuity in Mr A's overall care, and that the June amendment to his feeding regime was somewhat "vague" and poorly documented, it was, nevertheless, a new standing order which all staff, and particularly Mrs E as Clinical Nurse Leader, were required to follow. Mrs E's level of responsibility at the rest home meant that she needed to make herself familiar with changes in her patient's care, including, if necessary, taking steps to ensure that any outstanding documentation was obtained and multidisciplinary discussions arranged. It is clear from the nursing progress notes that she knew that Mr A's new daily prescription of Jevity was 1500ml per day. She could no doubt have clarified the instructions if necessary, either immediately or at subsequent medical reviews. She did not do so.

Mr A's daily Jevity intake could only legitimately be further reduced following multidisciplinary discussion with a dietitian and Mr A's GP. Mr A's family should also have been included in any further decisions about his diet.  Accordingly, when Mrs E reduced Mr A's Jevity to 1000ml on 6 September 2000 (and thereafter on 9, 28, 29 and 30 September; and 1, 3 and 4 October) and when she instructed her nursing staff to "not give extra 500ml", she contravened a standing order and breached section 19(1) of the Medicines Act.  Mrs E made unilateral decisions, going against the relevant provisions of the Clinical Services Manual, which required consultation with other team members and Mr A's family.

Mrs E explained that the reduction was a "trial" to enable Mr A to socialise with his family, and reduce his abdominal discomfort. She stated that this was only ever intended to be "temporary" and she was going to review it. She cannot say when she intended to conduct a review, or with whom. I consider these explanations to be unsatisfactory given that Mrs E knew that medical and dietary consultation was required before any variations could be made. Moreover, I accept Ms Avent's advice that there was "ample flexibility" for Mr A's 1500ml daily feed to be given over a longer period of time, if his tolerance or social acceptability was at issue. The prescribed amount of Jevity could have been administered overnight, or within a flexible timeframe to suit Mr A's social commitments. His abdominal discomfort should have been reported to the dietitian and GP in the first instance in order that appropriate decisions could be made.

While Dr D had noted Mr A's abdominal distention on 2 August, he was not asked to review this again until 27 September 2000. Mrs E did not tell him that she had been reducing Mr A's Jevity to accommodate "ongoing" discomfort in the intervening period. Had she done so, Dr D may have been alerted to the fact that there had recently been a reduction in intake approved by Dr I and the hospital dietitian, that Mr A was now receiving less Jevity than had been agreed at that time, and that some of his discomfort may have been due to insufficient nutrition. In respect of these issues, I agree with Ms Avent's view that a registered nurse exercising reasonable care and skill (particularly in circumstances where the nurse accepted that her experience in enteral feeding was limited) would not have reduced Mr A's Jevity and would have sought further advice. The issue of consulting with other providers will be discussed further below.

Mrs E made further unilateral decisions regarding Mr A's diet, when on occasion she fed him chocolate pudding. Her actions in this regard were contrary to the clear standing order established by Dr B in February 2000, accepted by Mr A's family, and endorsed by the speech language therapist in her written recommendation in October 2000, that Mr A was to be fed 'nil by mouth' because there was a strong risk that he would aspirate his food.

I accept that the speech language therapist's recommendation was slightly equivocal, in that, as there were associated "quality of life issues", the final decision whether Mr A could receive food orally was for Mr A's care team and family. I also acknowledge Mrs E's concern that Mrs K's April 2002 notes of their conversations about oral feeding do not reflect her own recollection of what was discussed, and that Mrs E recalls being given different advice from the speech therapist, to that written in the clinical notes.

The care and support plans completed in February and August 2001 record that following discussions with his family, Mr A remained 'nil by mouth'. There is no reference in the notes provided, to discretionary or occasional oral feeds of bland or thick foods being permitted or offered by senior caregivers. I am concerned by Mrs E's explanation for not recording or discussing with others what she says the speech therapist advised her, or the fact that on occasion she fed Mr A orally. Her stated reasons in fact undermine the team care approach advocated by all parties involved in this complaint, and indicate a worrying lack of respect for the involvement of Mr A's own family and other practitioners in the decision-making process. I accept that Mrs E's decision to feed Mr A chocolate pudding on occasion may have been motivated by good intentions, confidence in her assessment of Mr A's tolerance and safety, and her sense of senior responsibility. However, irrespective of Mrs E's response to Mrs K's record of what was discussed in relation to this issue, overall, it is my opinion that her conduct in this regard was inappropriate.

Ultimately, Mrs E established a new, permanent feeding regime for Mr A, as indicated by the entry of 19 October 2000 in the nursing record: "Continue with present feeding regime, ie Jevity 1000ml over 24 hours". Her actions meant that for 18 months, Mr A did not receive the minimum daily amount of Jevity that he required for his basic nutrition. In my opinion, Mrs E's conduct amounted to gross negligence and she breached Right 4(1) of the Code. Her actions were inherently unsafe and beyond the scope of her practice, and fell far short of the ethical standards expected of an experienced registered nurse. By failing to provide services to Mr A that complied with ethical and legal standards, Mrs E also breached Right 4(2) of the Code.

Monitoring Mr A's weight

In accordance with the explicit directions of Ms H dated 28 February 2000, Mr A's weight should have been monitored once a week. Section 2.7 of the rest home's Clinical Resource Manual, revised on 1 July 1999, also required that in the "initial" phase of a patient's enteral nutrition regime, weekly weighs occur to assist with assessment and monitoring. Long-term residents on enteral feeding regimes were to be weighed once a month. As Clinical Nurse Leader, Mrs E was responsible for keeping the rest home's Clinical Procedure Manuals up to date.  I am satisfied that she would have known how often Mr A needed to be weighed.

While Mr A's nursing progress notes for early 2000 state that he was to be weighed "each Wednesday", I have seen no weight chart or entries in the notes that confirm this was done. As the decisions to reduce Mr A's Jevity to 1500ml in June 2000, and to 1000ml in September 2000, had returned his feeding regime to an "initial" phase, Mrs E should have ensured that Mr A was weighed once a week over these periods also. The nursing progress notes for 28 June 2000 specifically request weekly weighs each Wednesday.  I am not satisfied that Mrs E complied with this request.

Instead, the combined information drawn from Mr A's "Temperature, Pulse and Respiration Chart" (which also on occasion recorded his weight), his individual "Residential Health and Care Needs Assessment" forms, and the "Resident Weight Form" (listing all residents' weights) shows that in 2000, Mr A's weight was recorded once a month in January, February, March, June, July, August, September, and December. No weight record information has been provided to me for four months of 2000 − April, May, October and November. There are three-monthly recordings from December 2000 until February 2002.

I appreciate Mrs E's concerns about the state of the notes provided to her during the rest home's investigation, and later, my own, and acknowledge that there may − for whatever reason − be some documents missing, which may contain further information as to Mr A's recorded weight. However, I am unconvinced, given the style and pattern of weight recordings that are available, and other comments Mrs E has made regarding difficulties in weighing Mr A, that any such data would necessarily indicate that he had been weighed weekly from February to March, and June to July 2000, as per the expectation of the dietitians who had implemented new feeding regimes at those times, and the rest home's own policies. On balance, I consider that if Mr A was weighed regularly during that year, including during the months for which data has not been found, it is more likely that this occurred on a monthly, not weekly, basis.

In any event, what is ultimately more concerning is that Mrs E failed to interpret Mr A's recorded weight loss correctly. He had weighed 67kg before his PEG tube was inserted in February 2000, and gained weight, despite his poor health, until June 2000. He lost a total of 19.7kg between September 2000 and March 2002, which Ms Avent concluded was attributable "directly" to lack of nutrition and hydration, caused by Mrs E's decision to reduce Jevity to 1000ml per day. I agree with that view. While this weight loss may not have been perceived as "dramatic" by staff caring for him every day, a nurse with Mrs E's experience should have been alert to possible reasons for it. In particular I consider that she should have been suspicious of the fact that between December 2001 and February 2002, Mr A lost 9.3kg, particularly when the August 2001 care and evaluation plan had specifically recommended that Jevity be increased in consultation with a dietitian if Mr A's weight decreased.  She knew Mr A was receiving 1000ml of Jevity each day, and that this was half the volume on which he had been started in February 2000. It is remarkable that she did not know what a patient's minimum daily level of Jevity was. I agree with my nursing advisor, Ms Avent, that in these circumstances it was not reasonable for Mrs E to have simply attributed Mr A's weight loss to a "natural progression" of his deteriorating health. In this respect, her position is distinguished from that of Dr D (and Mrs C), whose same assumption was based on the mistaken belief that Mr A was receiving his approved daily level of Jevity.  

I accept that it was difficult to weigh Mr A. However, the Code of Conduct for Nurses required Mrs E to demonstrate the expected competencies of a registered nurse caring for elderly patients, and to exercise her knowledge and skills for the benefit of her patient. At the very least, if weighing Mr A weekly was impracticable because of the discomfort it caused him, Mrs E should have ensured that it was done monthly, that clear records of his weight were kept, all in one location in his file, and that regular blood tests were taken (as an alternative to weighing) to monitor his nutritional levels as far as possible. She should also have raised the matter with the visiting GP, and a dietitian. In my view, Mrs E's failure to adhere to Ms H's instructions and the rest home's own protocols, and to recognise that Mr A's steady weight loss was more than likely directly related to her decision to reduce his Jevity intake, was very poor nursing practice. It demonstrated a disregard for Mr A's well-being and for the clear policies in place to prevent such a situation from occurring. In these circumstances, Mrs E breached Rights 4(1) and 4(2) of the Code.

Record-keeping

A fundamental element of good nursing practice, explicit in Principle 2, Criteria 2.9 of the Code of Conduct for Nurses, and affirmed by Right 4(2) of the Code, is the maintenance of accurate patient records. Sufficient information must be recorded in a patient's notes to enable all providers caring for him to recognise and monitor the course of his progress. Ms Avent considered that the standard of Mrs E's record-keeping was poor.

A patient with Mr A's complex medical presentation needed to be effectively monitored and regularly reviewed. Regular multidisciplinary discussions were needed. The clinical records, if adequately and appropriately maintained, would have provided the impetus for this. However, individual weight and fluid balance charts were not kept for Mr A, and records of medical reviews were brief. Leaving aside the fact that Mrs E should not have reduced Mr A's Jevity intake in September 2000 without consultation, I am concerned that she did not record in his progress notes the assessment process behind her decision to do so. It is even more worrying that she did not immediately schedule a review of that decision on the care plan or in her own work-day diary. Mrs E's description of her conduct as "uncharacteristic" is an unsatisfactory explanation, as are her statements that the notes given to her by the rest home were a "shambles" and that documents were missing. While I acknowledge Mrs E's comment that it took her "four or five days" to put Mr A's records in order, I consider that in this case, the tangible state in which the records were produced is of less concern than whether, on an objective assessment, the notes themselves are clear, coherent, and easy to follow and understand.

As Clinical Nurse Leader, it was incumbent upon Mrs E to ensure that her record-keeping was of an appropriate standard and that others caring for Mr A would follow her example and keep good notes. My advisor concluded that overall, the record-keeping and documentation for Mr A was of an unacceptable standard for a private hospital. My own review of the records kept for Mr A in the last two years of his life leads me to concur with Ms Avent's assessment. Accordingly, Mrs E breached Right 4(2) of the Code in respect of her record-keeping.

Co-ordination of care

Right 4(5) of the Code gives every patient the right to co-operation among providers to ensure quality and continuity of services. Mrs E was an experienced registered nurse with considerable knowledge and skill in the care of the elderly. As Clinical Nurse Leader, she was responsible for ensuring that the services provided to Mr A were of an acceptable standard. In response to my provisional opinion, Mrs E's legal representative disputed this, stating:

"The primary duty of care rests in this case with [the rest home] and the secondary duty of care with the general practitioner … The requirements of the general practitioner in relation to nutrition are in turn delegated to the pharmacist and dietitian and implemented by more than one registered nurse." 

This approach, which purports to place the least emphasis on the responsibility of the rest home's nursing staff, is, in my view, incorrect and does not reflect the reality of the circumstances in this case. Mr A, a highly dependent, permanent long-term resident at the rest home, relied on the nursing staff for administration of his day-to-day care, including a feeding regime that was subject to a dietitian's standing order. Mrs E had primary responsibility for ensuring adherence to the terms of that order, by requesting prescriptions from the pharmacist, presenting them to the visiting GP for signature with any necessary explanation, and administering the correct daily volume of Jevity to her patient.  The advice of my nursing advisor − which I accept − is emphatic: Mrs E "was the key worker involved in Mr A's care and … the responsibility lay with her to ensure that care was of an acceptable standard". Accordingly, she had "a responsibility to co-ordinate care to meet the patient's needs, making timely referrals to allied professionals when appropriate".

Ultimately, the key to successfully co-ordinating Mr A's management was a multidisciplinary approach, involving the rest home nurses, the visiting GPs, the speech therapist, the hospital and/or privately contracted dietitians, the pharmacist, Dr B, and Mr A's family. I note the following comment of my nursing advisor:

"Quality care results from accurate and ongoing assessment, thorough and professional documentation and record keeping, effective co-ordination of services and care involving allied professionals and appropriate reporting procedures."

Dr D's expert advisor made a similar observation, stating that "the effective team requires that each member of the team undertakes their specific role and advises if there is any problem in sustaining that role".  

Mrs E suggested that these events occurred because of a "lack of accountability within the system for the monitoring of the feeding regime between the staff, the doctor, and the dietitian". Yet, as the key worker in Mr A's care team, it was incumbent on Mrs E to inform others of any concerns, difficulties, or changes. Similarly, Mrs E had numerous sources within the "co-operative team" framework from which she could have sought assistance and advice. Two matters in particular indicate to me that Mrs E failed to sustain her role in this respect. One is Dr D's advice that upon first visiting Mr A in August 2000, he was unaware that there had been a recent change to Mr A's feeding regime involving Dr I and a hospital dietitian. The second is Mrs E's comment that the rest home's private dietitian was considered "expensive" and, for that reason, was not consulted as often as necessary.

Mrs E also submitted that because of time and resource constraints, her heavy workload, and "insufficient training" on PEG feeding, she was unable to meet the standard required of her. I do not accept these "systemic difficulties" as reasonable explanations for her failure as an individual to request a formal instruction sheet detailing the new feeding regime from the DHB's dietitian in June 2000; to discuss the "trial" reduction of Jevity with Dr D, the speech language therapist or a dietitian in September/October 2000; to provide Dr D with sufficient information about Mr A's feeding regime; or to appropriately utilise the range of resources available which would have ensured Mr A's progress was properly monitored. In my opinion, Mrs E breached Right 4(5) of the Code in respect of these matters.  

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Opinion: Breach - The rest home company

Direct liability

Mrs E and Dr D have both said that with the benefit of hindsight, they realise that systems at the rest home were insufficient to prevent the situation that occurred in relation to Mr A's feeding regime. As noted above, Mrs E has also suggested that she did not receive sufficient information and training to enable her to adequately manage a patient requiring enteral feeding.  The possibility has also been raised that the rest home did not receive from the hospital dietitians written information entitled "Guidelines for home enteral feeding" although I do not have sufficient information to determine whether this is the case.

My advisor, Ms Avent, said that while she believed Mrs E's training was sufficient, the more significant issue was that the rest home had inadequate audit processes in place to monitor clinical documentation and residents' progress. Regular audits could have averted Mr A's ongoing malnutrition and dehydration, by discovering Mrs E's unauthorised reduction of Jevity in September 2000, along with the lack of regular multidisciplinary consultation, the fact that Mr A was not being weighed weekly, that blood tests were not being taken or followed up, that medical reviews were not occurring once a month as required, and that stockpiles of Jevity were not, in fact, being utilised. I agree with Ms Avent's assessment. In my opinion, the rest home company failed to ensure that the actions of its staff were appropriately audited, and breached Right 4(2) of the Code.

Vicarious liability

In response to my provisional opinion, Mrs E's lawyer queried why the rest home was not considered vicariously liable for Mrs E's actions.  The effect of section 72 of the Health and Disability Commissioner Act 1994 is that a breach of the Code by an employee will be treated as being a breach of the Code by his or her employer, unless the employer can show that it took such steps as were reasonably practicable to prevent the breach.

In this case, Mrs E made an individual decision to alter Mr A's feeding regime.  The rest home Clinical Service Manual specifically stated that a team decision was required to decide whether enteral feeding should be altered and that this would be in consultation with the resident and family.  Having implemented such a policy for the safety of its patients, the rest home was reasonably entitled to expect that staff would comply with that policy.  I am therefore satisfied that the rest home took such steps as were reasonably practicable to prevent Mrs E from altering the feeding regime without authority, and is therefore not vicariously liable for her breaches of the Code.

No Breach - Dr D

Dr D first saw Mr A for the purposes of medical review in August 2000. He saw him a further three times that year, six times in 2001, and once in 2002. He first signed a prescription for Jevity for Mr A on 14 October 2000 (for 42,000ml), and completed the second application for special authority to Health Benefits on 21 February 2001. The same day, Dr D signed a prescription for Mr A ordering 28,000ml of Jevity, and all of the subsequent monthly prescriptions he signed thereafter were for the same amount.

I have given careful consideration to whether, in terms of the Code, Dr D adequately assessed Mr A over this period of time, whether he should have reviewed Mr A's dietary needs and general condition, and whether it was appropriate for him to sign prescriptions for Mr A's Jevity without confirming that the amount ordered was sufficient to comply with the dietitian's instructions. While it is clear that Mr A was losing weight, Dr D assumed that this was being caused by ill health, as Dr D was unaware that Mr A's feeding regime had been changed. Dr Isbell noted that Mr A's feeding regime had been set up by a dietician and that Dr D would assume that the amount and type of feeding was correct.  She then advised that it is the nursing staff's responsibility to carry out feeding prescribed by the dietitian.  This practice was confirmed by Dr B, Dr I and Ms H.  Ms H noted that while the visiting GP was expected to provide oversight, staff were expected to contact the rest home's dietitian if there was any significant increase or decrease in Mr A's weight.

Dr Isbell advised that if Mr A's feeding records were not seen by Dr D, and he was not notified of the change in feeding regime, he would reasonably assume that Mr A's dietary needs were being provided in accordance with the standing order.  Dr D's expert advisor confirmed that it would not be usual practice for a GP to review the nursing notes and consequently he would not be aware of Mrs E's entries concerning Jevity volumes.

In terms of reviewing Mr A's general condition, I accept the advice of Dr Isbell that "in a residential situation, the contracted doctor is usually reliant on the nursing staff to supply a list of patients who need to be seen at each visit".  I am satisfied that Dr D did medically review Mr A for illnesses as they occurred and that without specific information about changes in his feeding regime and weight, Dr D would not have been alerted to the need for a review of Mr A's dietary needs.

In summary, based on the advice of Dr Isbell and Dr's D's expert advisor, I am satisfied that in general, Dr D's actions were reasonable in the circumstances, and he did not breach the Code.  However, I have some concerns regarding his involvement in Mr A's care, and draw these to his attention as follows.

Team approach

As noted above, a team-care approach was critical to effectively managing Mr A's care. Dr D had a significant role in that team. It is therefore concerning that, as Dr Isbell observed, he was "not given an overview of the nursing situation, and the management and feeding of Mr A, by the nursing staff". I am also concerned that the level of interaction between Dr I and Dr D was insufficient. The comment made by Dr's D's expert advisor regarding transfer of responsibility by the hospital dietitian, and Dr D's advice that when he first saw Mr A on 2 August 2000, he was not aware that Dr I had recently approved a reduction in Mr A's Jevity, raise the question whether handover of responsibility for Mr A's medical reviews in July/August 2000 was appropriately managed and understood.

Weight loss

Dr D was aware of Mr A's weight loss, and attributed it to his general ill health and age. Mrs C perceived her father's weight loss the same way, and stated that because a bag of Jevity was always in place during her visits, it did not occur to her that his feeding regime was insufficient.

Dr D stated that he did not "discuss numbers" with the RN during his medical reviews and assumed that the rest home staff were aware of the importance of providing the correct daily quantities of Jevity and fluids. He explained that during all his visits to Mr A he enquired about the administration of his feeds and whether there were any problems, and expected that he would be contacted if any changes were to be made to the regime.  Regrettably, insufficient or inaccurate information regarding trends in Mr A's weight and details of his daily feeding regime was being relayed to Dr D. In such circumstances, his assumptions that the correct volume of Jevity and fluids was being administered, and that Mr A's weight loss was caused by his general poor health, were reasonable. In general terms, it may have been prudent for Dr D to have taken steps to investigate insufficient diet as a possible cause of Mr A's weight loss.  However, I accept that it was appropriate for Dr D to have relied on what the nursing staff told him.

Blood tests

On 27 September 2000, Dr D ordered blood tests for Mr A. They were not taken. Dr D's expert advisor commented that the value of blood tests for patients on Jevity is of uncertain merit and suggested that only with the benefit of hindsight could it be said that Dr D should have followed up on the test results. Conversely, Dr Isbell advised that Dr D should have discovered that the tests had not been taken, and re-ordered them. Dr D has provided no information explaining why he ordered the tests, or why he did not check whether they had been done. I consider that irrespective of any debate as to their clinical value, as Dr D had deemed blood tests necessary during his visit on 27 September, it would have been prudent for him to have followed up the results. In hindsight it is evident that they may have indicated that Mr A was receiving insufficient nutrition.

Similarly, given that pressure sores can be an indicator of dehydration and malnutrition, when Dr D noticed Mr A's sores in October 2001, it would have been helpful to have further discussed his feeding regime and any identified weight fluctuations, and to have considered whether blood tests were necessary. Had Dr D confirmed whether a dietitian's advice had recently been sought (as was required of Mrs E and her team in the case of continuing weight loss), appropriate multidisciplinary discussions could have been arranged. 

Prescriptions

Dr Isbell advised that in theory, "the doctor is responsible for all aspects of the patient's care. But if Mr A's feeding records were not seen by Dr D, and he was not notified of the change in feeding regime, he would assume that Mr A's dietary needs were still being met."  The 2 August 2000 visit was in fact the only occasion when Dr D saw Mr A receiving his agreed (ie, correct) daily amount of Jevity. One month later, Mrs E set in train the events that were to lead to Mr A's feeding regime being managed on the basis of an unchecked administrative and clinical error for over twelve months. One of the factors contributing to this ongoing error seems to have been Dr D's mistaken assumption (based on Mrs E's advice) that the rest home's  previously available stocks of Jevity were supplementing those that he approved for order on prescription.

On 21 February 2001, Dr D applied to Health Benefits for ongoing special authority, and signed a prescription for 28,000ml of Jevity. This was a considerable reduction from the previous amount he had ordered (42,000ml). All subsequent prescriptions signed by Dr D were for 28,000ml per month. He accepted Mrs E's explanation that only 28,000ml was required because there were "stockpiles" of Jevity at the rest home(which, if used, would have made up the daily difference of 500ml in order that Mr A would receive 1,500ml per day). I have carefully considered Dr Isbell and Dr D's expert advisor's comments in respect of this issue and accept their advice that it was reasonable for Dr D not to question the amount of Jevity ordered on prescription, in light of Mrs E's advice. However, it seems logical to assume that if the rest home's stores of Jevity were in fact being used in this way, they would have diminished over time, to the point where 28,000ml per month on prescription may no longer have been sufficient. I consider that it would have been sensible for Dr D to have considered or asked, over the course of twelve months, whether this continued to be the case.  

Summary

I accept that Dr D was heavily reliant on Mrs E to provide him with the correct information about Mr A's health, and that she did not give him all the information he needed to make accurate assessments. However, by agreeing to carry out medical reviews for Mr A, Dr D accepted a duty of care for his patient. While I am satisfied that Dr D's actions were reasonable in the circumstances, I encourage him to bear in mind in future that in order to fully discharge that duty in a team care environment, it will on occasion be necessary to satisfy himself, through additional questioning and checking, that matters are in fact as they seem.     

Other comments

Involvement of others

Concern has been expressed by Mrs E and Dr D, their legal representatives, and the experts providing advice, as to the involvement of Dr I and the hospital dietitians in Mr A's overall management. It appears that in February 2000, aspects of Mr A's handover were unclear and, in June 2000, the decision to reduce Mr A's Jevity intake to 1500ml was not well documented. Further exploration of these issues is beyond the scope of this investigation.  However, in light of the events that followed, Dr I will be provided with a copy of this report, and reminded of his obligations under the Code to co-operate with other providers to ensure continuity of care for patients.  The DHB will also receive this report for circulation among its dietitians.

Actions taken

Ms F, General Manager, Operations (the rest home company), advised that as a result of Dr B's complaint, an extensive internal investigation was undertaken at rest home, and "the positions of manager and clinical nurse leader were reviewed and new job descriptions developed to identify clearly the responsibilities of each position". In addition:

• The rest home reviewed its continuous quality improvement framework. This is now reviewed annually internally, and was audited externally during the certification process in March 2004. The rest home management group has a company-wide audit schedule.
• A Quality Co-ordinator has been appointed.
• Systems have been developed for in-service education and staff development.
• Clinical Nurse Leaders now meet monthly as a specialist group to discuss issues, and review clinical/care policies and procedures.
• The rest home has provided a written apology to Mr A's family.

Follow-up actions

• Mrs E will be referred to the Director of Proceedings in accordance with section 45(f) of the Health and Disability Commissioner Act for the purpose of deciding whether any proceedings should be taken.
• A copy of this report will be sent to the Nursing Council of New Zealand with a recommendation that the Council consider whether a review of Mrs E's competence is warranted.
• I recommend that Dr D review his practice in light of these events.
• I recommend that the rest home company circulate a copy of this report to its staff for educational purposes, and continue to review its systems for quality control.
• A copy of this report will be sent to Dr I, Dr B, Ms H, the DHB, the Coroner, the Medical Council of New Zealand, the New Zealand Dietetic Association, HealthPAC, and the Ministry of Health (Licensing Division).
• A copy of this report, with details identifying the parties removed, will be sent to Age Concern, HealthCare Providers New Zealand, and Pharmac, and placed on the Health and Disability Commissioner website, www.hdc.org.nz, for educational purposes, upon completion of the Director of Proceedings' processes.

 

Addendum

The Director of Proceedings issued proceedings before the Health Practitioners Disciplinary Tribunal and, on 2 August 2006, a charge of professional misconduct was upheld. The Tribunal considered that Nurse E failed to meet the high professional standards required of nurses.

The Tribunal considered that the stress and tension caused by the delay in bringing these proceedings, and the time the matter took to be determined, were sufficient punishment, and it saw no need to punish Nurse E further. No fine was imposed.

Costs reflected the fact that the offending was at the lower end of the scale of professional misconduct. Nurse E was censured and ordered to pay 10% of the costs of the Tribunal and the Director of Proceedings, amounting to $10,327.  $6327 is to be paid to the Nursing Council and $4000 to the Health and Disability Commissioner.

The Tribunal was of the opinion that Nurse E should be encouraged to practise again, and therefore has permanent name suppression. The decision will be published in an anonymised form on the Tribunal's website (www.hpdt.org.nz Decision No: 52/Nur05/16D), in Kai Tiaki and the Nursing Council's newsletter.

 

 

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[1] Dr D's expert advisor's qualifications are MBCh.B (1973), MRNZCGP (1983), FRNZCGP (1987); he is a member of the Central Ethics Committee of the New Zealand Medical Association.