Sheriffdom of
Under the Fatal Accidents and Sudden Deaths
Inquiry (
(Hereinafter referred to as "the Act")
Determination
by
Joyce Powrie, Advocate
Sheriff of
in the
Fatal Accident Inquiry
regarding
Mary Smith Devine
The Sheriff determines:-
(1) In terms of Section 6(1)(a) of the Act
that Mary Smith Devine residing formally at Greenbank Nursing Home, 24 Wellhall
Road, Hamilton died at Wishaw General Hospital at 05:45 on 27th May
2005.
(2) In terms of Section 6(1)(b) of the Act
that the cause of death was (a) bronchopneumonia due to (b) fracture of cervical
spine due to (c) fall at said Greenbank Nursing Home on 18th May
2005.
(3) In terms of Section 6(1)(c) of the Act
that reasonable precautions whereby the death and the accident resulting in the
death might have been avoided were:-
(i) Primarily, the use of appropriately
fitted foot rests to the wheelchair in which Mrs
Devine was being carried; and
(ii) Secondarily, the fitting and use of a
seat belt or lap belt restraint in the
wheelchair
but only when used in conjunction with the above reasonable precaution.
(4) In terms of Section 6(1)(d) of the Act
defects in the system of working which contributed to the accident resulting in
the death were:-
(i) The lack of any clear formalised
training of staff in Greenbank Nursing Home as
to the safe transporting of residents within the care home in wheelchairs.
(ii) The lack of clear training for staff
within Greenbank Nursing Home as to the
need
to use foot rests on wheelchairs at all times when transporting residents.
(iii) The lack of clear direction to staff
within Greenbank Nursing Home as to the
additional
benefits of using seat belts or lap restraints in wheelchairs within the residential home when transporting residents
and using footrests on wheelchairs.
(iv) The lack of any clear personalised risk
assessment in respect of each resident when
being transported in a wheelchair including the recording of the views of the resident, and/or relatives, and the
addition risks involved in the use of pressure
cushions in wheelchairs.
All
the above defects have now been addressed by Greenbank Nursing Home.
(5) That the facts relevant to the
circumstances of death in terms of Section 6(1)(e) are set out fully in the
note appended to this determination.
Sheriff
NOTE
A preliminary hearing into the circumstances of the
death of Mary Smith Devine (hereinafter referred to as "Mrs Devine") was held
before me on
Evidence was led before me on 18th, 19th
and 20th June 2008. The late
Mrs Devine's two sons and two daughters were in court for the vast majority of
the proceedings. In the course of
proceedings, it became clear that one son, namely Mr Thomas Devine, normally
resident in
I would also like to acknowledge Mr Devine's public
announcement that he did not wish to apportion personal blame to Miss Lees, the
care worker who was pushing Mrs Devine's wheelchair at the time of the
accident. Further, Mr Wilson the
Director of the Nursing Home also tendered his apologies to the family for
their loss. The court trusts that this
is of some comfort to all involved.
In this respect, there are two preliminary matters
worth mentioning and these are:-
Firstly, an Inquiry of this nature is not determining
any question of civil fault or liability (Black
v Scott Lithgow Limited 1990 SLT 612) and of course a determination cannot
be founded upon in any subsequent proceedings (Section 6(3)). Despite the
wording of Section 6(1)(c) therefore the Sheriff does not have power to make
findings of fault or to apportion blame.
Secondly, in terms of Section 4(7) the rules of
evidence shall be as nearly as possible those applicable in an ordinary civil
cause brought before the Sheriff. The
standard of proof is the balance of probabilities and the facts and
circumstances can be established without the necessity of corroboration.
The duties and powers of the Sheriff in respect of her
determination are contained in Section 6 of the Act. This section provides as follows:-
"(1) At the conclusion of the evidence and any
submissions thereon, or as soon as possible thereafter, the Sheriff shall make
a determination setting out the following circumstances of the death so far as
they have been established to his satisfaction:-
(a) where and when the death and any
accident resulting in
death
took place;
(b) the cause or causes of such death and
any accident resulting
in
the death;
(c) the reasonable precautions, if any,
whereby the death and any
accident
resulting in the death might have been avoided;
(d) the defects, if any, in any system of
working which
contributed
to the death or any accident resulting in the
death; and
(e) any other facts which are relevant to
the circumstances of the
death."
Summary of Events
Mrs Devine was aged 89 at the time of her death. She had been suffering from ill health for a
number of years and had been cared for at home for some 12 or 13 years by her
two daughters. In March 2002 her health
was such that her daughters despite their obvious care and attention, could no
longer care for her at home and she was admitted to Greenbank Nursing Home. Her two daughters continued to visit her on
alternate days.
Mrs Devine's medical history included congestive
cardiac failure, high blood pressure, diverticular disease, recurrent urinary
tract infections, Parkinson's Disease and dementia. She was wheelchair bound.
On
On the morning of 19th May following review
of her X-rays by
A Post Mortem was carried out on
Section
6(1)(a) Where and When Death Took Place
Mary Smith Devine died at
Section
6(1)(b) The Cause or Causes of Death
Doctor John Clark spoke to his Post Mortem Report (Production
2). He spoke to finding a large number
of fading bruises on Mrs Devine's face, arms and legs which he considered to be
consistent with a substantial fall. He
spoke to the Post Mortem Photographs which were taken (Production 3). He was also referred to the photographs taken
a
Although Doctor Clark could not confirm from his Post
Mortem Examination that there was a cervical fracture, he was of the opinion
that this had been adequately demonstrated in the hospital. He also confirmed that the pattern of
injuries would fit with Mrs Devine having fallen from her wheelchair as
described, striking her forehead on the ground and landing also on her left
wrist and knee. He also stated that
despite her fairly lengthy medical history there was remarkably little else to
find at Post Mortem, other than coronary artery disease and ageing changes in
the brain. He thus found that the cause
of death was as previously stated. The
family had been advised that Mrs Devine was suffering from MRSA. Doctor Clark stated that MRSA was a type of
bacterial infection but was not significant in the cause of death of Mrs
Devine. He stated that she had a high
risk of developing pneumonia standing that she was elderly, had suffered a
broken neck and already had other illnesses.
He said that a urinary tract infection was very common in elderly people
but did not lead to pneumonia. He said
that a urinary tract infection was not obvious in his Post Mortem
Examination. He accepted however that
this could affect the balance of the person infected and this could lead to
dizziness. Further, anyone with such an
infection would not be "themselves" and could be drowsy and confused. Doctor Clark further stated that he was of
the opinion that the broken vertebrae was significant in the cause of
death. He was of the opinion that if Mrs
Devine had simply fallen out of her wheelchair without having suffered such a
break it may not have led to her death.
By and large all of the above was confirmed by Doctor
McSween. He confirmed that when he was
advised that Mrs Devine had suffered a fracture to her cervical spine, the
prognosis was not good for her recovery.
He took advice from the Southern General Hospital regarding her future
treatment. Surgery was not recommended
and soft items were used to support her neck.
A surgical collar could not be used as this would have further
restricted her breathing. He confirmed
that this was a difficult case clinically because of all Mrs Devine's
pre-existing medical condition. He said
that the major problem was maintaining her breathing and nutrition. He did not consider that MRSA or a urinary
tract infection in any way contributed to her death. Antibiotics given to treat the chest
infection from which she subsequently died, would also have been effective in
dealing with any urinary tract infection also.
I was satisfied that the Nursing Home and Wishaw
General Hospital had taken every possible step to care for Mrs Devine after her
fall from the wheelchair. From the
evidence led before me, I was satisfied on the balance of probabilities that
the cause of the death was bronchopneumonia due to a fracture of the cervical
spine due to a fall from a wheelchair.
The family of Mrs Devine raised the question as to
whether MRSA or a urinary tract infection had contributed to Mrs Devine's
death. This was ruled out by both Doctor
Clark and Doctor McSween. I accept their
evidence. There was nothing to
contradict their opinion. Accordingly,
on the balance of probabilities, I do not consider that any such infections
contributed to the death of Mrs Devine.
Section 6(1)(c) Reasonable Precautions
whereby the Death and the Accident Resulting in the Death might have been
avoided
It appears to me that many of the factors regarding
what reasonable precautions could have been taken whereby the accident could
have been prevented, and the examination of the system of work in place overlap. Further, in terms of Section 6(1)(e) ie.
looking at other relevant factors, again there is some overlap.
There was evidence that Mrs Devine's needs had been
assessed when she was admitted to the Nursing Home and reviewed every three to
six months to see if there was any change needed. (See Production 4 being Mrs Devine's Care
Plan). This clearly showed that Mrs
Devine was immobile and required the use of a wheelchair when she first came
into the Nursing Home. It was stated at
page 2 of said Production dated
Mobility/Mobilising
"Mary remains immobile but is able to take her weight when transferring. 3 monthly moving and handling assessment carried
out refuses to use standaid hoister".
At page 3 of said
report under the heading "History/Risk
of Falls" it was stated:-
"Poor
weightbearing capacity could lead to falls please ensure appropriate moving and
handling techniques adopted.
Cot
sides in situ potential for falling out of bed due to partial sight".
Under the heading "Personal Safety and Risk" it was stated:-
"Cot
sides in situ due to risk of falling out of bed overnight permission sought
from both Mary and family".
Production 4 showed further risk assessments relating
to Mrs Devine which had been carried out by the Nursing Home. Page 36 showed the position prior to Mrs
Devine's accident on
In evidence, which was not disputed, I was advised
that the heading "Transfers"
referred to moving Mrs Devine from a chair to a wheelchair or from a
chair/wheelchair to bed and did not refer to transporting her in a wheelchair
within the Nursing Home.
All the relevant witnesses accepted that there was
nothing in Mrs Devine's Care Plan prior to her accident as to how she should be
transported in a wheelchair and that no risk assessment had been carried out in
this respect. Further, her wishes with
regard to the conditions of her being transported in a wheelchair had never
been recorded nor had the views of her family been canvassed. The evidence from Mrs Hunter, the Manager of
the Nursing Home, and Mrs Cassels, a staff nurse at the Nursing Home, was that
following upon Mrs Devine's accident, they recognised that there was a risk
factor of her falling out of a wheelchair and this was appropriately recorded
although not actioned as Mrs Devine did not return from Wishaw General
Hospital.
A wheelchair provided by the Nursing Home was lodged
as a Production in this Inquiry. I was
told that the Nursing Home had a pool of wheelchairs which were used by the
residents. Mrs Devine used the type
lodged in court which was of the wider variety.
The wheelchairs were stored in the sluice room and taken to the resident
as and when required. The wheelchairs
were generally stored in the folded-up position. At the time of Mrs Devine's accident,
footplates were not generally attached to the wheelchairs when they were so
stored. There was a box adjacent to the
wheelchairs which contained the requisite footplates. I heard evidence which I accepted, that the
footplates were easily removed and fitted from the wheelchair. Accordingly, there was, in my opinion, no
reason for staff not fitting footplates when required.
Staff Nurse Jean Cassels was clearly of the view that her
practice and good practice would have been to use footplates on wheelchairs
when transporting residents including Mrs Devine. She stated that she had heard from carers
that Mrs Devine did not want footplates.
However, she said that this would not have affected her own personal
practice, and even if a carer had told her that Mrs Devine did not want
footplates, she would have tried to persuade her that they should be used as
she thought this was good practice.
Mrs Hunter, the Nursing Home Manager, also knew that
Mrs Devine did not like footrests on her wheelchair but allowed her to have the
choice not to use them although it was not included in her Care Plan. She considered that Mrs Devine was "small"
and accordingly her feet did not reach the bottom of the wheelchair and thus it
was decided that they would not insist upon her using footplates although this
was said to be against the general policy of the Care Home. However, Mrs Hunter said that an instruction
to use footplates on wheelchairs had only been given verbally to staff and had
never been put in writing at the time of the accident.
Miss Margaret Devine (Mrs Devine's daughter) stated
that she never saw footplates being used on any wheelchair. In particular, she never saw footplates being
used on her mother's wheelchair. Miss
Nicola Lees spoke to not using footplates on Mrs Devine's wheelchair as she did
not like them. It appeared to me from
the other evidence led from Nursing Home Staff that this was a generally
perceived view. Thus, on the balance of
probabilities, I conclude that footplates were seldom used when transporting
Mrs Devine in a wheelchair.
On the balance of probabilities, I conclude that
footrests were not being used when Mrs Devine was being transported from the
dining room in the Nursing Home to her room when she sustained the fall from
her wheelchair on
On the balance of probabilities I also conclude that
footplates were seldom used on wheelchairs when transporting other
residents. I reached this conclusion
standing that the general practice seemed to be that footrests were stored in a
box adjacent to the wheelchairs rather than them being stored on the
wheelchairs. It appeared to me from
seeing the operation of the wheelchair being folded and stored as shown in
court that there was nothing to preclude the footrests being stored on the
wheelchairs as wheelchairs could fold readily when footrests were
attached. There may have been a slight
problem with footrests falling off when being stored but it did not appear to
me to be an insurmountable problem to simply reattach them rather than store
them in the adjacent box.
Miss Devine also spoke to her mother being frightened
of sitting in the wheelchair although Mrs Devine never gave any explanation to
her as to why this was. On the balance
of probabilities, I did not accept the evidence that Mrs Devine was scared when
sitting in the wheelchair. There was no
other evidence to substantiate this claim.
On the contrary, Mrs Devine clearly used a wheelchair on a daily basis
to be transported to and from the dining room and the toilet. Further, she continued to sit in the
wheelchair when eating meals and never voiced any disquiet to Nursing Home
Staff. There was no evidence that Miss
Devine had ever raised this matter with Nursing Home Staff or the rest of the
family.
The Use of
Pressure Cushions and their Impact on Stability of Wheelchair Users
A pressure cushion was used in Mrs Devine's
wheelchair. It was not disputed that the
use of such a cushion was totally appropriate given Mrs Devine's
condition. However, evidence was led
from Ms Joanne Booth a Senior Research Fellow in Gerontolagical Nursing at
Glasgow Caledonian University, Doctor Okunribido, Ergonomics Section of the
Health and Safety Laboratory Buxton and Mr Alasdair MacInnes, a Nurse Lecturer
at the West of Scotland University Hamilton who all agreed that the use of a
pressure cushion in a wheelchair was a contributory factor in the overall
stability of Mrs Devine on the day of her accident. This was compounded by the fact that Mrs
Devine was said to be tired on the day in question and was slumping forward in
her wheelchair at the time of the accident.
All the above witnesses were well versed in the
possible effects of the stability of wheelchair users when a pressure cushion
was used. I was particularly referred to
Ms Booth's Report being Production 5 and Doctor Okunribido's Report Production
36. Production 36 was a report prepared
following upon a detailed assessment of the whole circumstances relating to Mrs
Devine's death. This involved a large
number of tests being carried out both in the Nursing Home and in laboratory
conditions. Tests were carried out using
mannequins and test subjects using the wheelchair both in the Nursing Home and
in the laboratory. The author of the
report also studied various authenticated research papers on matters pertinent
to this Inquiry, which assisted him in reaching his conclusions.
Doctor Okunribido stated inter alia at pages 17 and 18 of his report that:-
"When
the occupant sat on the home pad (ie. pressure cushion) with feet unsupported,
it was compressed considerably at the front edge due to the weight of the
legs. The occupant's knees were moved to
a lower position than when occurred when they sat on the regular cushion. Thus there is a greater risk of a fall
forward when sitting on the pressure cushion."
However, all the above witnesses considered that such
a risk could and would have been countered by the use of appropriate footrests
on the wheelchair being used by Mrs Devine.
Mr MacInnes in particular confirmed that the use of a pressure cushion
would have raised Mrs Devine's sense of gravity thus making her less stable in
the wheelchair. All the above witnesses
were of the opinion that the use of footrests in themselves were a reasonable
precaution whereby the accident leading to the death of Mrs Devine could have
been avoided.
The Fitting
and Use of Footrests
On the balance of probabilities, I concluded that a
reasonable precaution whereby the death and the accident resulting in the death
might have been avoided was primarily the use of appropriately fitted footrests
on the wheelchair in which Mrs Devine was being carried. This was very clearly confirmed by the three
witnesses previously referred to. It was
also clear that Miss Cassels was also of the view that the accident could have
been avoided by the use of footrests.
In particular Doctor Okunribido confirmed in his
technical report how the lack of footrests would have left Mrs Devine's feet
"dangling" or if she was leaning forward with her feet close to the floor, this
would have led to the accident. In
particular his report at page 18, (under reference to Photograph 9) states:-
"Supporting
the feet on footplates causes the whole leg to be raised from the floor and the
prise (hip) to be more flexed toward the back of the chair. As a result the extent to which the trunk can
be flexed forward from the backrest is thereby reduced. Thus there is a lower risk, that an occupant
may fall forward out of the wheelchair when the feet are supported on the
footplate than when they are unsupported."
His evidence in court supplemented this report by
explaining that the weight of the footrests acted as a counterforce by lifting
the feet considerably of the ground which throws back the centre of gravity
when the feet are raised by the legs being flexed, and bent closer to the
body. It was explained that this reduces
the amount a person can lean forward and forces the back towards the backrest
of the chair. On the balance of
probabilities I accepted this evidence as it was supported by the evidence from
Mr MacInnes and Ms Booth.
The Fitting
and Use of Seatbelt and Lapbelt Restraints
The evidence showed that in general the wheelchairs
used in the pool at the Nursing Home were not fitted with seatbelts at the time
of the accident. This practice has since
been changed by the Nursing Home but I will deal with this later in my note.
The main evidence in this respect came from the
witnesses previously referred to. In
particular Ms Booth was quite clear in her view that a seatbelt alone as a
preventative measure could not in fact have prevented the accident. She was of the opinion that had Mrs Devine
been strapped into her wheelchair without the use of a footrest this could have
in fact had the potential for the whole chair and the occupant to have been
tumbled forward. She said that she had
seen one such occurrence and that such an accident would have come about as a
result of a pivoting motion which would have gathered momentum and taken the
chair and the occupant forward resulting in an accident to the occupant.
Doctor Okunribido thought that there were recognised
safety benefits from using a seatbelt particularly when transporting residents
around the Home. However, he did not
envisage the problem identified by Ms Booth and thought that there would have
to be a very steep gradient or leaning forward by the occupant of the
wheelchair for a safety belt on its own without footrests to cause a topple
forward and falling out of the wheelchair.
Even in such a scenario, he considered that a carer would be able to
hold back the force of the toppling movement.
He was of the opinion that if he had to choose only one of the two options,
namely the use of footrests alone or the use of seatbelts alone, he would
choose the former.
In addition Mr MacInnes also thought that the use of
seatbelts was a secondary precaution when used in conjunction with
footrests. He considered that seatbelts
if fitted were suitable and advisable for use when the wheelchair was in
motion.
Mr Wilson, the Director of the Nursing Home stated
that in his view this accident would have been prevented if seatbelts had been
fitted to Mrs Devine's wheelchair and used at the time of the accident. He further stated that his major change in
policy since the accident had not been to use footplates, but to use
seatbelts. I did not agree with Mr
Wilson's view. On the other evidence
available to me, I considered upon the balance of probability that seatbelts
alone would not have been a reasonable precaution whereby the death and the
accident resulting in the death of Mrs Devine might have been avoided. However, I did decide upon the balance of
probabilities that a secondary reasonable precaution whereby the death and the
accident resulting in the death might have been avoided would have been the
fitting and use of a seatbelt or lapbelt restraint in the wheelchair when
appropriately fitted footrests to the wheelchair in which Mrs Devine was being
carried were used.
Defects in the System of Working which Contributed
to the Accident Resulting in the Death in terms of Section 6(1)(d) of the Act
My Determination as set out in sub-paragraphs (i),
(ii) and (iii) relate to the training of staff in the safe transporting of
residents in wheelchairs and the use of footrests and seatbelts or lap
restraints. There was clear evidence
from Nursing Home management and staff that the moving and handling training of
staff prior to Mrs Devine's accident did not include the safe transporting of
residents in wheelchairs and the use of footrests and seatbelts or lap
restraints. I accepted the evidence of
Mr Wilson, Mrs Hunter and Mrs Cassels that it was the general policy of the
Nursing Home that footrests should have been used on wheelchairs at all
times. However, in my opinion, this
policy was not adequately conveyed to all members of staff particularly care
assistants such as Nicola Lees. The
training that Miss Lees received prior to Mrs Devine's accident clearly did not
show that she was trained in how to properly convey a resident in a wheelchair
and the necessary safety factors. Miss
Lees was obviously not aware of the safety implications in using a wheelchair
and the benefits of using footrests and seatbelts.
From the evidence before me it did appeared that
management and qualified nursing staff were aware of the safety benefits of
using footrests on wheelchairs prior Mrs Devine's accident. There was nothing in writing to alert other
less qualified staff as to these benefits prior to Mrs Devine's accident. Footrests were not routinely kept on the pool
of wheelchairs in my opinion but were
rather stored in a separate adjacent box, and were not used on a regular basis
on wheelchairs. This was known by
management. In these circumstances, it
appeared to me that there was at best a "blind eye" being turned by management
of the Nursing Home as to the manner in which residents were being transported
in wheelchairs. In particular, Mrs
Hunter knew of Mrs Devine's aversion to the use of footrests but took no steps
to redress this problem. She justified
this by saying that Mrs Devine was "allowed to have her choice" and further,
Mrs Devine was "small" and accordingly her feet did not reach the bottom of the
wheelchair. I did not accept this as
acceptable, standing she knew the risks involved in not using footrests.
It was clear from the evidence of Mr Wilson, Mr
Hunter, Nicola Lees and Mr MacInnes that since the accident a new training
regime had been set up whereby all the previous defects in training regarding
the proper use of wheelchairs had been addressed. It was confirmed by Mr MacInnes that this had
been done without any additional cost to the Nursing Home. Upon the balance of probabilities, it
appeared to me that this previous lack of training had not been due to any
monetary factor but rather a lack of understanding for the need to provide
training in the safe transportation of residents in wheelchairs. I considered that although nursing staff were
aware of the problems potentially involved in transporting residents in
wheelchairs, this had not been adequately conveyed to other members of staff
such as Nicola Lees prior to Mrs Devine's accident. This, however, has now in my opinion, on the
balance of probabilities been adequately addressed by the Nursing Home.
The Health and Safety Executive and the Care
Commission were actively involved at all times in supervising the management of
the Nursing Home. At all times the Nursing
Home complied with their policies and enquiries. Following upon Mrs Devine's accident the
Nursing Home produced a document Production 10 whereby it was stated that the
policy of the Nursing Home was that the Nursing Home would use footrests and
seatbelts on all wheelchairs when transporting residents.
Restraint
In relation to Section 6(1)(c), (d) and (e) of the
Act, a question raised in respect of the use of seatbelts in wheelchairs related
to whether or not such use amounted to "restraint". In this respect I heard evidence from the
Nursing Home staff, Mr MacInnes, Ms Booth and Miss Brimelow of the Care
Commission. Evidence was also led from
Ms Edgar who had looked at the evidence from an independent point of view.
At the time of Mrs Devine's accident I considered on
the balance of probabilities that residential homes and Greenbank Nursing Home
in particular, were extremely reluctant to use safety belts in wheelchairs as
this could be considered a form of restraint which would have been against the
residents' human rights.
Greenbank Nursing Home thought that before they could
use a seatbelt in transporting Mrs Devine this could only be done after calling
a multi disciplinary meeting and recording in her Care Plan special measures
for the use of a seatbelt. It was felt
at the time of Mrs Devine's accident that there was no need for such a meeting
or use of such a measure. This, in
retrospect, had been found to be incorrect and has been addressed by the
Nursing Home.
There was evidence before me, which I accepted upon
the balance of probabilities, that it was a "grey area" as to whether the use
of seatbelts in a wheelchair was a restraint or a safety measure. The guidance provided by various agencies
such as the Care Commission did not clearly define what was "restraint" and
what was a safety measure. In my opinion
at the time of Mrs Devine's accident, such use of a seatbelt when transporting
a resident, may have been considered as a "restraint" with justification
standing the above. However, in view of
the position which has moved forward since that time, I consider that the
additional use of a seatbelt when transporting a resident would not be a
"restraint" but rather a safety measure in appropriate circumstances. I consider that this is a matter which
individual Nursing Homes would have to assess when carrying out individual risk
assessments of residents. However, on
the balance of probabilities, I consider that at the time of Mrs Devine's
accident, the Nursing Home did not adequately assess the additional benefits of
using a safety belt in conjunction with footrests when transporting residents
in wheelchairs. In terms of the new
policy, this has on the balance of probabilities been adequately addressed by
the Residential Nursing Home in terms of their amended policy in the use of
seatbelts.
The Lack of any Clear Personalised Risk
Assessment in Respect of Mrs Devine being Transported in a Wheelchair
I have previously summarised the risk assessment
(Production 4) which showed a basic need assessment in respect of Mrs Devine's
poor mobility. Therein it is identified
that there was a risk of falls and the use of appropriate moving and handling
techniques. However, there is no
specific mention of a risk of falls from a wheelchair at any time. Such a risk was not considered until after
Mrs Devine's fall from the wheelchair resulting in her death.
In the moving and handling risk assessment (at pages
36/37) Mrs Devine's use of a wheelchair is recorded but is not risk
assessed. This in my opinion, is
surprising given that the risk involved in her otherwise falling is
recorded.
There was clear evidence which I accepted, that the Care
Plan had been prepared by an experienced nurse and thereafter supervised by
experienced staff. Ms Booth indicated
that in her experience this was a Care Plan which was similar to those prepared
by other Nursing Homes. She described it
as "adequate". However, it was
significant that the experienced nurse, Miss Cassels, who gave evidence was
alert to risks from falling from a wheelchair.
Her notes, post accident, is evidence of the fact that she had noticed
the risk of Mrs Devine falling from a wheelchair on the day it happened. This was with a view to subsequently
reviewing Mrs Devine's Care Plan. This was in addition to assessing her risks
of falling out of bed which had previously been identified.
The Procurator Fiscal Depute submitted that there was
a possible argument that had staff in the Nursing Home followed the then verbal
instructions regarding the use of footrests then it was not at all foreseeable
that Mrs Devine could have fallen out of her wheelchair. This was based upon the premise that
management and qualified nursing staff of the Nursing Home were fully
conversant with the need to use footrests on wheelchairs and the reasons
therefore and assumed staff would carry out verbal directions. As previously stated, I considered that this
was a totally misplaced assumption, as lack of training had not made other
staff aware of the safety implications. Accordingly,
I concluded that no personal risk assessment in respect of Mrs Devine when
being transported in a wheelchair had been carried out. However it was, in my opinion, clear that
this would have been done following upon Mrs Devine's accident if she had returned to the Nursing Home.
However, in my opinion, there was clear evidence to
suggest that the risk assessment and Care Plan should have recorded the views
of Mrs Devine and/or her relatives as to the use by Mrs Devine of the
wheelchair. As previously stated there
were conflicting views as to Mrs Devine's preference for the use of
footrests. Standing that the Nursing
Home was well aware that footrests should have been used, this is a matter I
consider should have been fully canvassed
with Mrs Devine and her relatives who were obviously in attendance on a regular
basis. The question could have been
clearly resolved if the views of Mrs Devine and/or relatives and staff had been
clearly canvassed and recorded in her Care Plan. On the balance of probabilities I considered
that if this had been recorded in Mrs Devine's Care Plan it would have
indicated that she did not wish foot restraints to be used when she was
transported in her wheelchair. However,
I also consider on the balance of probabilities attempts should have been made
to persuade Mrs Devine from this view and that footrests should have been used
on her wheelchair when she was being transported within the Nursing Home. There was no evidence in my opinion to
suggest there were any attempts made to persuade her that footrests were an
important safety measure. As such what
should have been a matter of choice for Mrs Devine was not clearly explained to
her. Miss Cassels in particular
considered that she would have tried to persuade Mrs Devine that the use of
footrests was important. However, there
was no evidence at all that she had ever tried to do this. In short I do not consider that the Nursing
Home ever considered the risks of Mrs Devine falling out of her wheelchair
until after her accident.
However it is quite clear that the policy of the
Nursing Home is now that footrests are used in all wheelchairs when residents
are being transported and further that a seatbelt or lap restraint is also used
when residents are being transported.
The Nursing Home have, in my opinion, clearly reviewed their position as
to what amounts to "restraint" in that now footrests and seatbelts are now used
routinely when transporting patients in the Nursing Home. Accordingly, I consider that all defects in
the system of working which contributed to the accident resulting in the death
of Mrs Devine have now been addressed. I
consider on the balance of probabilities, that if such a consultation had been
undertaken, possible defects in the system of working could have avoided the
accident resulting in the death of Mrs Devine.
However, I must restate my opinion that the relatives of Mrs Devine did
not raise any relevant concerns to the staff of the Nursing Home regarding her
transportation in a wheelchair. In my
opinion, Mrs Devine's relatives were obviously very caring for her wellbeing
and could easily have raised any concerns for her care with the Nursing Home
Management. This was never done until
after her death. Obviously, this does
not absolve the Nursing Home of their primary duties and responsibilities.
In evidence Miss Brimelow from the Health Care
Commission stated that they received a complaint from a named person who wished
to remain anonymous regarding concerns about the services that Greenbank
Nursing Home was providing to users using wheelchairs and staff not using
laptop restraints and footrests when transporting users in wheelchairs between
the original building and the extension.
She stated that they treated such complaints very seriously and were
sufficiently concerned, although busy, to investigate this complaint. Her inspectors accordingly made an
unannounced visit to the Nursing Home on
There was no other suggestion of any other complaints
against the Nursing Home. On the
contrary, both the Health and Safety Executive and the Care Commission
confirmed that the Nursing Home had complied fully with them at all times and
had not been subject to any enforcement action.
As a result of the foregoing inspection all transportation of residents
was found to be in order. Accordingly,
it was deemed that there was no irregularities in the Nursing Home's
procedures. I have no doubt at all that
the Care Commission investigated a full investigation of this complaint and
that there was no subsistence in it whatsoever.
Indeed, I cannot see why such a complaint in May 2007 was ever made
standing that Mrs Devine died in 2005 and so far as I could ascertain the
family of Mrs Devine had had no contact with the residential home since that
time.
Facts which it was suggested may be Relevant
to the Circumstances of the Death in terms of Section 6(1)(e)
(a) Gradient of the Ramp within the
Nursing Home
I did not find, on the balance of probabilities, that
this was relevant in the circumstances of Mrs Devine's death. I only include reference to the evidence as
it was a major factor in the investigations and the evidence at the
Inquiry. ~Accordingly, I consider it
appropriate to summarise the evidence led before me and my reasons for
rejecting this as being a contributory cause of the accident leading to Mrs
Devine's death. Production 6 was a Book
of Photographs showing the ramp which connected the traditional sandstone part
of the Nursing Home Building with a single storey extension to the rear
accommodating twenty bedrooms. The
dining room was in the main building and Mrs Devine's bedroom was in the
extension. Basically coming from the
main building there is a flat area outside the door to the main building
followed by a downward ramp of 2.3 metres in length. There is then a flat area beside a toilet
followed by a second downward ramp extending 1.9 metres leading to a level area
outside the first bedroom in the extension.
Mr Wilson gave evidence regarding the conversion of
the building. He said that the ramp was
an afterthought as there were problems regarding the difference in height
between the old building and the new extension.
He stated that the Architect designed the ramp to comply with building
regulations and that a building completion certificate was issued in respect of
the work.
Mr Wilson spoke to having a meeting with Miss Edgar of
the Health and Safety Executive in about September 2006 when concerns were
raised by Miss Edgar regarding the gradient of the ramp. He stated that he had suggested that when a
further new extension was built to the Nursing Home the ramp would be
changed. The plan was to extend the ramp
and make the gradient less. However,
this work had not to date been carried out as the Nursing Home had not received
planning permission for the new extension.
However, the main evidence in this respect came from
Doctor Okunribido. I have previously
referred to his very detailed report being Production 36. He carried out extensive tests regarding
wheelchair use on the ramp. I do not
intend to rehearse his findings as to the gradients and all the tests he
carried out as they are somewhat complex and are more specifically set out in
his report. Doctor Okunribido also had
regard to a considerable amount of technical data when making his
assessment. He considered the data in
relation to whether the ramp's gradient was suitable for transit of carer
propelled wheelchairs and self propelled wheelchairs. He found that there was a difference in what
was a safe gradient in respect of the two groups.
Mrs Devine was not capable of propelling her own
wheelchair. She required the assistance
of a carer to push her wheelchair up and down the ramp. In these circumstances the opinion of Doctor
Okunribido was that "the slopes of the two ramps are adequate (not excessively
steep) for the carer and wheelchair pushing/pulling tasks that are
performed".
Thus, Doctor Okunribido was of the opinion that the
gradient of the ramp was not too steep for safe wheelchair use and that Mrs
Devine's fall out from the wheelchair was not due to the ramp's gradient. I found Doctor Okunribido to be an impressive
witness who had clearly carried out a great deal of research into this
case. Accordingly, upon the balance of
probabilities, I concluded that the gradient of the ramp did not in any way
contribute to the accident resulting in the death of Mrs Devine.
My opinion with regard to this matter was further
reinforced by the evidence given by Miss Brimelow regarding the Care
Commission's inspection in May 2007 following upon the complaint I previously
referred to from a named person who wished to remain anonymous. Production 39 was the Care Commission's
response which found no basis for any concern, regarding the safe use of
wheelchairs on the ramp.
One further matter that was raised with regard to the
ramp was whether or not the forces used in bringing Mrs Devine's wheelchair to
a stop at the bottom of the ramp had in any way contributed to the
accident. Doctor Okunribido stated that
in his view the momentum of movement down the ramp would not cause the occupant
of a wheelchair to topple out. He stated
that if the carer was coming to a stop on the level ground and an extra force
was applied to the handles of the wheelchair to bring the chair to a stop then
that could create an impact on the occupant.
However, he opined that the degree of force would have to be a quite
extreme stopping/pulling force to have the effect of making the occupant fall
out of the wheelchair.
The evidence in respect of how Mrs Devine's wheelchair
was brought to a halt prior to the accident came from Miss Lees. Miss Lees said that she had two hands on the
handles of the wheelchair as she was coming down the ramp towards the lower
flat area. She said that she stopped at
the lower area as there were other lady residents walking down the corridor in
front of her and she was aware that she had to stop. She said that she stopped the wheelchair
slowly. I accept that on the balance of
probabilities that this is true and accordingly there was not a sufficient
force on the wheelchair which could have in any way contributed to Mrs Devine's
accident.
(b) The use of Pressure Cushions
I have previously addressed this matter.
(c) Interpretation of "Restraint" in the
Care Home Setting
I have also previously addressed this matter.
(d) Accident Report
I do not consider that this was a fact which was
relevant to the circumstances of Mrs Devine's death. I have only provided a note of the evidence
and my findings thereon as it was a matter pursued in evidence and particularly
referred to by Mr Tom Devine in his closing submissions to me, who appeared to
find this a major concern into the investigation into his mother's death. In this respect, I have previously pointed
out the purposes of a Fatal Accident Inquiry which may not have been totally
understood by Mr Devine. Accordingly, I
do not consider that this is a matter upon which I should make a Determination.
Very shortly after Mrs Devine's accident the Nursing
Home prepared an Internal Accident Report (Production 8). This was an extremely brief document which
gave minimal information regarding the circumstances of the accident.
In evidence this was criticised by Miss Edgar the
Health and Safety Executive (hereinafter referred to as "HSE) who was not
initially involved in the case. Although
the Nursing Home advised the Health and Safety Executive timeously of the
accident as they were required to do, no investigation was carried out immediately
by the HSE for reasons which are unknown.
Miss Edgar was only involved in this investigation in about August 2006 after
investigations were being undertaken by the Procurator Fiscal's Office.
Miss Edgar was extremely critical of the lack of
specification in Production 8 namely the Accident Report Form. She considered it to be totally inadequate in
that it did not give any medical consequences for Mrs Devine and the
description of the event was superficial.
She stated that she would like to see for example:-
1. Was it connected with a work activity?
2. What equipment was involved and the
make of it and the condition of it?
3. Whether or not the equipment ie. the
wheelchair had been maintained and could footplates
have been easily adjustable or were in place?
4. Was the pressure cushion in use and the
type thereof and whether that had slipped during
the course of the accident (although it was conceded that this was unlikely to slip)?
5. The
condition of the premises where the accident had occurred and for example, the
surface type of flooring where the accident occurred.
6. Whether
or not there was a link to the ramp where the accident occurred.
7. The
name of the person supervising Mrs Devine and what training that person had
had.
In other words Miss Edgar suggested that the report
should have captured the evidence regarding the accident at the earliest
possible opportunity and drawn together all relevant factual information. She also suggested that the Care Plan should
have been referred to and in particular whether or not that required to be
reviewed in light of the accident. She
suggested that there should have been a system of work whereby one member of
staff at the Nursing Home dealt with the medical matters relating to the
accident and treating Mrs Devine and someone else dealing with recording the
above details as soon after the accident as possible. She suggested that in this particular case
the wheelchair for example, could have been taken into a side room soon after
the accident so that the relevant details could have been recorded.
I accept that Production 8 was in extremely short
compass. However, I also accept that it
was completed very shortly after Mrs Devine's accident and on the balance of
probabilities I consider that it was an adequate recording of matters taken so
shortly after the accident. However,
again on the balance of probabilities I agree that Miss Edgar's comments are
wellfounded as to how the Nursing Home should have thereafter proceeded in
collating the information she suggested.
On the balance of probabilities I considered that this
has now been addressed by the Nursing Home.
Mr Wilson advised the Health and Safety Executive in Production 8 at .5
of a letter to them dated 22nd November 06 (Production 15) that
nursing staff were to fill in Accident Reports more fully and gather more
appropriate information.
Mr Devine made some closing remarks which he urged me
to consider. He submitted that if the
investigation report prepared by Greenbank Nursing Home had been adequate the
court and the family would be better able to understand why Mrs Devine fell out
of the wheelchair. I accept that the
investigation report which was prepared very shortly after the accident was
very short. However, standing the
evidence led in this three day Inquiry, I am of the opinion that all relevant
facts have now been fully canvassed. Mr
Devine suggested that "no one knows for sure" why his mother tipped
forward. I cannot provide a
Determination which satisfies this criteria as our law only allows me to make
Determinations upon the balance of probabilities.
Mr Devine also suggested that the accident had been
caused by the wheelchair coming to an abrupt halt at the bottom of the ramp
because of people in front. However, as
previously stated I do not consider on the balance of probabilities, that there
was any such abrupt halt. Miss Lees was
clearly in a position to see that there were people in front of her and that
she would require to stop. Mr Devine
suggested that the court had not explored the effect of less extreme
stopping. However, I do not consider
that this was a relevant complaint standing that, upon the balance of
probabilities, I considered that only a controlled stopping of the wheelchair
occurred in this accident, and Doctor Okunribido's evidence that extreme force
would be required to cause Mrs Devine to fall out of the wheelchair.
Mr Devine also seemed to think that lessons still
require to be learned by the Nursing Home Management regarding the proper
training of accident investigation. Again,
on the balance of probabilities I did not agree with his view that this had not
been addressed standing the Nursing Home's Policy (Production 10) and the
observations carried out by the Care Commission Staff following the unnamed
complaint.
Mr Devine also suggested that there should be a "Audit
Programme" set up by the Nursing Home.
This he suggested should be a person or persons trained in "safety
auditing" who would observe people while they worked and for example, report
any person pushing a wheelchair without footplates to a relevant person. It appeared to me that there was no such need
for such a programme standing the clear directions which were now in place in
the Nursing Home. I was further
reinforced in this view standing the observations of the Inspectors from the
Care Commission and the Care Commission's strict inspection rules.
Mr Devine also criticised the Health and Safety
Executive as being amiss for not carrying out an investigation into Mrs
Devine's death shortly after the accident.
The reasons for this were not clear but I do not consider that this is
part of my remit. What was, however,
clear to me from the evidence led, was that the Nursing Home had at all times complied
fully with the Health and Safety Executive and the Care Commission.
It was suggested by the Procurator Fiscal Depute that for
the care community at large, there were important lessons which could be
learned from this accident regarding the use of wheelchairs and the systems in
place for training of staff in their safe use and also risk assessment in the
transporting of residents in wheelchairs.
It was also suggested that this Determination could be of value when the
care community when reporting and investigating accidents. It is now more than three years since this
unfortunate accident occurred. It may be
that many lessons have already been learned.
In particular the Care Commission in my opinion, obviously takes an
extremely full active role in monitoring Nursing and Residential Homes and keeping abreast of best practice,
and advising accordingly. My
Determination may be of assistance in avoiding future accidents involving the
safe transportation of residents in wheelchairs. However, I do not consider my remit in any
way allows me to make any recommendations upon how accidents in Residential
Homes should be reported or investigated.