The Ombudsman's final decision:
Summary: I consider Cornwall Council (the Council) was at fault when it sent contradictory information to Mr X saying it would not issue an education, health and care (EHC) plan for Miss Y, and then saying it would issue one. Due to Miss Y’s age, Mr X has lost the opportunity to appeal the Council’s decision. Cornwall Partnership NHS Foundation Trust (the Trust) delayed carrying out blood tests and an ECG. This caused uncertainty to Mr X. Also, the Trust used the wrong sized feeding tube for Miss Y. This caused pain to Miss Y and distress to Mr X. Smile Together Dental CIC (the Dental Service) did not provide Miss Y with an appointment since September 2016. This caused frustration to Mr X. Also, the Council and Kernow Clinical Commissioning Group (the CCG) delayed providing responses to Mr X’s complaints, and did not keep him updated during the complaint handling process. This compounded the distress he had already suffered. The Ombudsmen made recommendations to remedy the injustices.
- Mr X complains on behalf of his daughter, Miss Y, about Cornwall Council (the Council), Kernow Clinical Commissioning Group (the CCG), Cornwall Partnership NHS Foundation Trust (the Trust), NHS England (NHSE), Smile Together Dental CIC (the Dental Service) and Lostwithiel Medical Practice (the Practice). Specifically, he says:
- He is unhappy with the way the Council transferred Miss Y’s education package to the CCG in March 2016.
- In April 2016, a GP at the Practice did not arrange an alternative solution to provide blood tests and an electrocardiogram. Mr X says these are still outstanding as the Trust and Practice could not agree who should complete the tests.
- In May 2016 the Trust caused pain and distress to his daughter when it inserted the wrong feeding tube into her stomach. Mr X added he was not satisfied the Trust has learnt from this.
- It took three months to get an appointment for Miss Y with a dentist after seeking one in June 2016. Mr X says that his daughter has since been waiting for a follow up appointment.
- Mr X says the Council and the Trust have not been able to clearly explain who is responsible for maintaining and repairing Miss Y’s specialist equipment.
- Miss Y’s sensory learning package is poor quality and there is no care plan to say what her learning objectives should be.
- In 2012 the Council decided to put a disabled facilities grant in his name, rather than Miss Y’s. That means he will be charged £10,000 when he moves property.
- Their responses were defensive
- They delayed providing responses
- The Council ignored his letter dated 2 March 2017, and nobody has addressed the four points in his conclusion.
What I have investigated
- I have investigated Mr X’s complaints above against the CCG, the Trust, the Dental Service, the Practice and NHSE. I have also investigated Mr X’s complaints about the Council’s education package, maintenance of equipment and complaint handling. The final section of this statement contains my reason for not investigating the rest of the complaint.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
- SEND is a tribunal that considers special educational needs. (The Special Educational Needs and Disability Tribunal (‘SEND’))
- We cannot investigate complaints about what happens in schools. (Local Government Act 1974, Schedule 5, paragraph 5(b), as amended)
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I have considered the complaint information Mr X has provided to me. I have asked the Council, the CCG, the Trust, the Dental Service, the Practice and NHSE to comment on the complaint, and provide supporting documentation. I have also taken the relevant law and guidance into account.
- I have written to Mr X, the Council, the CCG, the Trust, the Dental Service, the Practice and NHSE with two draft decisions and considered their comments.
What I found
- There is statutory guidance which details how transfer reviews should be conducted in Special educational needs and disability: managing the September 2014 changes to the system (Department for Education, 2016). Specifically, to conclude a transfer review, a local authority must notify the child’s parents or young person of its decision that it is not necessary for special educational provision to be made in accordance with an EHC plan. It should propose to cease to maintain the statement of SEN for the child or young person. This should be done within 14 weeks of starting the transfer review. The statement of SEN will not be ceased until the end of the period that a parent or child can register an appeal with the tribunal.
NHS continuing healthcare
- “NHS continuing healthcare (NHS CHC) is a package of care arranged and funded solely by the health service in England for a person aged 18 or over to meet physical or mental health needs that have arisen because of disability, accident, or illness.” (NHS Commissioning Board and Clinical Commissioning Groups (Responsibilities and Standing Rules) Regulations 2012).
Mental capacity assessment
- The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
- An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely effects of making, or not making, this decision?
- Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
- Can the person communicate their decision?
Best interest decision making
- A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests.
- Section 4 of the Act provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. The decision maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
- The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 set out how organisations should handle complaints where bodies co-ordinate a response to complainants. The bodies should decide who will co-ordinate the response, and who should communicate with the complainant. The regulations also say that complainants should receive a timely and appropriate response.
Mr X’s complaints
The transfer from Special Education Needs to an Education, Health and Care Plan
- In March 2016, the Council held a transfer review of Miss Y’s Special Education Needs (SEN). Mr X was present and said he was unhappy with the quality of the education she was receiving.
- In April 2016, the Council decided it would not be issuing an Education, Health and Care plan (EHC plan). It said the CCG would meet Miss Y’s needs in a CHC funded package. The Council told Mr X he had two months to appeal the decision. Three days before the appeal deadline, the Council told Mr X it would be complete an EHC plan for Miss Y. Therefore, Mr X did not appeal the Council’s decision.
- In July 2016, the CCG completed a CHC reassessment for Miss Y. She had been in receipt of CHC for three years previously.
- In August 2016, the CCG agreed to provide funding for Miss Y’s health and social needs, as part of the CHC funding.
- Miss Y returned to college in September 2016.
- The Council’s letter to Mr X on 21 June 2016 led him to believe that his daughter would be transferring to an EHC plan. The Council sent this letter in error, and I am satisfied that on the balance of probabilities, Mr X would have appealed the Council’s decision to not transfer his daughter to an EHC plan. Therefore, I consider the Council’s action was fault. Due to Miss Y’s age, the opportunity to appeal the Council’s decisions has been lost. She will soon be over the age where an EHC plan would be required. We will not know if, an appeal had gone ahead, whether Mr X would have been successful. Also, if he was successful, what additional provision the tribunal would have recommended. This has caused Mr X uncertainty and distress at not knowing if the appeal would have been successful. I will make recommendations later in the statement to address this injustice.
The blood tests and electrocardiogram
- In March 2016, a developmental psychiatrist asked a GP at the Practice to carry out blood tests and an electrocardiogram (ECG). This is a test to monitor the heart, in order to monitor the effects of medication. In response, the GP wrote to the developmental psychiatrist and said Miss Y’s physical condition would not make it possible to carry out those tests. The GP asked how best to carry out those tests. The GP also explained this to Mr X on 1 and 7 April.
- In June 2016, a stroke and gastronomy nurse wrote to the GP and said the tests had not been completed. A learning disability nurse agreed to follow this up.
- During a CHC review in July 2016, the CCG noted Miss Y had not had an ECG.
- On 9 August 2016, a learning disability nurse emailed a nurse at the Practice, and asked why the blood tests had not been carried out. The Practice nurse said there are safety implications, as staff would need to hold Miss Y to do them. Staff did not want to do this. Later that month, a doctor in adult learning disabilities told the GP these blood tests needed to be completed, and the learning disability nurse was looking at ways to do them in the community.
- On 31 August 2016, the learning disability nurse referred Miss Y to the intensive support team (IST) for support with taking the blood tests. The IST provides support to adults with learning disabilities.
- In September 2016, the Practice told Mr X it would be difficult to undertake the blood tests and ECG due to the challenging nature of Miss Y’s disability. The Practice was awaiting the Trust’s response.
- During a meeting with the CCG in November 2016, all partied agreed that blood tests needed to be done in the least distressing way for Miss Y.
- In December 2016, the learning disability nurse carried out a mental capacity assessment about the blood tests. It decided Miss Y lacked capacity to decide to have the blood tests. The learning disability nurse completed a best interests decision for Miss Y. It decided it was in her best interests to have the tests and devised a least restrictive approach to taking the bloods at Bodmin Hospital.
- On 12 January 2017, Miss Y had the blood tests with the support of the IST. The blood test results later showed that Miss Y was anaemic and later received iron supplements for this.
- The Trust did not complete an ECG.
- Mr X agrees the blood tests and ECG should not be carried out at the Practice. However, he says the GP did not offer any alternatives. When the GP received the referral from the psychiatrist, he should have been directing the care.
- The Practice explained to the Trust in a timely manner why it would not be suitable to carry out the blood tests and ECG. I accept the Practice’s reasons for that decision. After that point, I consider the Trust was responsible for arranging those tests.
- The learning disability nurse correctly carried out a mental capacity assessment, best interest’s decision and devised a robust plan which was successful. All parties agreed with the decision and plan to carry out the blood tests. I do not consider this was fault. However, it took nine months to complete the blood tests. That delay was fault.
- From looking at the Trust’s evidence, the ECG was never completed. The Trust should have simply included the ECG, alongside the blood tests, as part of the mental capacity assessment and best interest’s decision. This was a missed opportunity, and I consider that was fault.
- The delay in diagnosing Miss Y’s anaemia meant that she was at an increased risk of illness and infection. Also, untreated anaemia can potentially lead to complications of the heart or lungs. The lack of an ECG leaves Mr X with a sense of uncertainty as to the impact of anaemia on Miss Y. The Trust needs to remedy the injustice to Mr X.
The wrong sized feeding tube
- On 22 May 2016, a community nurse inserted the wrong sized feeding tube into Miss Y’s stomach. The feeding tube was too short. The next morning Mr X noticed it was too short, Miss Y was in distress and bleeding. Later that day a community nurse changed the feeding tube, however this was also the wrong size. As there were no tubes of the correct size available, a gastronomy nurse moved Miss Y onto balloon gastronomy to provide her with nutrition and fluids until the Trust could find the right tube for Miss Y.
- On 24 May 2016, the Trust’s supplier said the tube Miss Y needed was out of stock. Three days later, the Trust inserted the correct sized tube for Miss Y.
- On 31 May 2016, the Trust visited Miss Y and said there were no issues with her feeding tube.
- In June 2016, the Trust held a gastronomy review of Miss Y. The Trust told Mr X when his daughter transferred from children to adults services, there was no referral to a community gastronomy team. This was when the challenges in Miss Y’s care started, as community nurses did not have the necessary training for gastronomy tubes.
- In August 2016, the Trust carried out training for community nurses about using and replacing feeding tubes. A month later, community nurses routinely changed Miss Y’s feeding tubes.
- In response to Mr X’s complaint, in November 2016 the Trust said:
- It upheld his complaint about inserting the wrong sized feeding tube
- It would refer children to adult services in a timely manner
- It would carry out skills training in gastronomy care for the community nursing team. Monthly gastronomy care update training would also be available.
- It would work with suppliers to ensure people get the correct equipment in a timely manner
- All district nurses receive training about replacing feeding tubes. Also, gastronomy nurses can provide custom-made training to any nurse who request it.
- The Trust should have sourced the correct sized feeding tube for Miss Y when they changed it on 22 May 2016. I consider that was fault. From the Trust’s evidence, this fault did not impact Miss Y’s feeding regime. However, the wrong sized feeding tube and the temporary alternative caused Miss Y distress for five days. Mr X also suffered the distress of witnessing Miss Y in pain.
- The community nurse apologised to Mr X over the phone on 23 May 2016 for the distress caused to Miss Y. Also, the Trust upheld Mr X’s complaints about using the wrong sized feeding tube and the availability of the correct sized ones. I consider the Trust has suitably apologised for the fault, and put into place steps to ensure similar fault does not happen again.
The delays in receiving a dental appointment
- In June 2016 Mr X asked for a dental appointment for Miss Y.
- In August 2016, Mr X complained to NHS England about the Dental Service’s delays in arranging an appointment for Miss Y. Her last one was in 2014.
- In September 2016, Miss Y had an appointment with the Dental Service. There were no concerns about her oral care, and the Dental Service agreed to review Miss Y again in six months time. Mr X later asked the Dental Service to arrange an appointment for March/April 2017.
- In January 2017, NHS England responded to Mr X’s complaint. It said:
- It contracted the Dental Service to provide special care dental service to Cornwall, which included Miss Y.
- It was seeing 40% more patients that it was contracted to see
- It was prioritising patients based on the pain they are suffering
- It apologised there was no communication with Mr X, that Miss Y was not see in a timely manner, and for any discomfort between December 2014 and September 2016.
- The Dental Service face challenges to provide a specialist service, and I consider its decision to prioritise patients based on pain is understandable. However, this has led it to repeatedly cancel Miss Y’s appointments.
- If not for the Dental Service’s challenges, Miss Y would have had an appointment in November 2017, six months after her appointment in May. While I appreciate the difficulties the Dental Service faces, I consider the 14-month delay for Miss Y’s routine appointment was fault. However, I do not consider there was an injustice to Miss Y.
- Mr X was aware in January 2017 that patients were being prioritised due to the pain they are suffering. I have not seen evidence Mr X made the Dental Service aware his daughter was in pain. I understand Mr X says Miss Y has no reliable way of communicating she is pain. I accept the Dental Service’s point that Miss Y is a low risk of dental decay, and understand the challenges it faced to provide a specialist service. I also consider the Dental Service’s significant effort to improve the specialist service.
- However, Miss Y has not had an appointment with the dentist for 14 months. I cannot say if the delay has impacted her oral health. But the delay has caused uncertainty to Mr X. The Dental Service need to remedy the injustice to Mr X.
Maintenance of specialist equipment
- Mr X says the Council and the Trust have not been able to clearly explain who is responsible for maintaining and repairing Miss Y’s specialist equipment. This has caused him inconvenience and it poses a risk to his daughter’s safety and to other service users.
- The Council and the Trust have provided me with evidence to show that it was the Council’s responsibility to maintain equipment. The Council’s records show it made this clear to Mr X. Also, the Trust’s records show that when he asked them to repair equipment, it referred him to the Council.
The CCG’s sensory learning package
- Mr X says the CCG’s sensory learning package is poor quality. He says there is no care plan which says what Miss Y’s learning objectives are at the Centre she attends. The Centre offers a range of services to adults with disabilities. This includes education and a respite centre. The Centre provides the package of social and health care for Miss Y.
- The Council ended Miss Y’s education at the Centre in July 2016. From September 2016, the CCG funded Miss Y’s transport to and from it, and Miss Y’s care package as part of the CHC.
- Miss Y’s December 2017 support plan says that the Centre:
- Provide hydrotherapy (the use of water in the treatment of different conditions), sensory rooms and go on outings.
- Change the water in Miss Y feeding tube balloon (which is why she attends during the holiday).
- Provide a special type of walking frame which she enjoys using and cannot use at home.
- Meet her social needs as she is with peers. Also, she attends events like the prom, which she has enjoyed before.
- The CCG do not commission or fund any education provision for Miss Y at the Centre. This stopped in July 2016. Therefore, she will not have set learning objectives.
- The Centre provides care and support to Miss Y that she cannot have at home. This includes hydrotherapy, the special walker and interaction with others.
- I understand the Centre is a long distance away, but I do not consider the CCG was at fault. There is evidence the Centre provides support for Miss Y’s health and social needs, as detailed in her care plan.
- In August 2016 Mr X complained to all organisations involved in this complaint.
- On 1 September 2016, the Practice provided a response to Mr X’s complaint.
- The CCG took the lead in responding to Mr X’s complaint on behalf of the Council, the Trust and NHS England. The CCG received Mr X’s consent to share information on 30 September 2016.
- Due to the time it may take NHS England to provide the Dental Service’s response, on 22 November 2016, the CCG gave Mr X the choice of:
- Providing responses from the CCG, Council and Trust as soon as they are ready, or:
- Wait for NHS England’s response and send them all together
- Did the Trust respond to the Practice’s April 2016 letter?
- Why did the Trust take until 31 August 2016 to refer Miss Y to the intensive support team?
- Why did the Trust not refer Miss Y for psychology/occupational therapy after 23 August 2016?
- Who was responsible for Miss Y’s physical health?
- Mr X says all the organisation’s responses were defensive. I have reviewed the responses from each organisation.
- I do not agree with parts of the Council’s response, but I do not consider they were defensive. The Council did not uphold most of Mr X’s complaint. It considered Mr X’s issues and explained clearly why it would not be upholding his complaints.
- The CCG upheld parts of Mr X’s complaint and explained ways it can avoid delays and improve communication. I do not consider any of the CCG’s response to be defensive.
- The Trust completed a robust and detailed response to Mr X’s complaint. I consider it addressed his concerns. Having read the response, I do not consider it was defensive. The Trust provided apologies where necessary, and detailed improvements to its service to avoid similar fault occurring to others. While Mr X did not agree with the outcome, I do not consider the Trust were defensive.
- I do not consider the Practice’s response was defensive. The Practice clearly explained why it did not believe it was the right place to carry out the relevant tests for Miss Y. Its language was open and showed an understanding of the frustration events had caused Mr X.
- The Dental Service was open about the challenges it faces providing specialist dental care in the region. I do not agree their response is defensive.
- Within four weeks the Council should:
- Pay £250 to Mr X for the uncertainty and distress at not knowing if an appeal would have been successful.
- Pay Mr X £250 to acknowledge the impact of fault in the complaint handling process
- Explain what steps it will take to ensure others do not experience similar significant delays during the complaint handling process.
- Pay £200 and £100 to Miss Y and Mr X respectively to address the distress caused by using the wrong sized feeding tube in May 2016.
- Apologise to Mr X for the uncertainty caused by the delays in carrying out Miss Y’s blood tests. And also, for not completing the ECG.
- Develop an action plan to ensure it completes tests quickly when they cannot be completed in the community.
- Apologise and pay £150 to Mr X for the uncertainty caused by significant delays arranging an appointment for Miss Y.
- Apologise to Mr X for the distress caused by the delays and lack of communication during the complaint process.
- Explain what steps it will take to keep complainants updated during the complaint handling process.
- The Council was at fault when it when it sent contradictory information to Mr X saying it would not issue an EHC plan for Miss Y, and then saying it would issue one. This caused Mr X uncertainty and distress at not knowing if an appeal would have been successful.
- The Trust delayed carrying out blood tests and an ECG after the Practice decided it could not carry them out safely. This caused uncertainty to Mr X. Also, the Trust used a wrong sized feeding tube for Miss Y. This caused pain to Miss Y and distress to Mr X.
- The Dental Service was at fault for not providing Miss Y with an appointment since September 2016. This caused frustration to Mr X.
- The CCG and the Council delayed providing responses to Mr X’s complaints, and did not keep him updated during the complaint handling process. This compounded the distress he has already suffered.
Parts of the complaint that I did not investigate
- Mr X says in 2012 the Council decided to put a disabled facilities grant in his name, rather than Miss Y’s. That means he will be charged £10,000 when he moves property. In 2012, Mr X was unhappy with that decision at the time, and said he would reserve judgement to challenge that decision later. This was so he could see if the adaptations were meeting Miss Y’s care and support needs.
- Mr X complained about this issue to the Council in August 2016. The Council said Mr X should have queried that decision back in 2012, and did not uphold his complaint. It added the application should have always been in the property owners name, as per the guidance in the Housing Grants, Construction and Regeneration Act 1996.
- Mr X clearly knew this was an issue in 2012 and could have made a complaint about that decision then. Even though he told the Council he reserved the right to challenge that decision later, it does not mean we should investigate this six years later. I consider this part of Mr X’s complaints is out of time and Mr X has provided no exceptional reasons why we should exercise our discretion and investigate this matter from so long ago.
Investigator's decision on behalf of the Ombudsman