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Leeds Community Healthcare NHS Trust (20 001 761a)

Category : Health > Community hospital services

Decision : Upheld

Decision date : 02 Feb 2021

The Ombudsman's final decision:

Summary: The Ombudsmen find a Trust did not respond to a request for a change of physiotherapist appropriately. There is evidence that staff were trying to meet the patient’s needs but this fault has left uncertainty about whether a further review could and should have happened. The Trust has agreed to provide an apology and to take steps to learn from the complaint.

The complaint

  1. Ms X’s daughter’s, Ms Y’s, Education Health and Care Plan (EHCP) includes a requirement for physiotherapy. Leeds City Council (the Council) is responsible for the EHCP. Ms Y attended a physiotherapy session with a physiotherapist, Ms A, from Leeds Community Healthcare NHS Trust (the Trust) in March 2019. Ms X complains that:
      1. Ms A did not engage with her or communicate effectively afterwards. Ms X said, instead, Ms A tried to dictate Ms Y’s care to her and tried to take away her parental responsibility. Ms X said this caused a breakdown in the relationship with Ms A.
      2. Ms A and other Trust physiotherapists failed to work with her, or other key professionals and did not devise a program for her daughter after that time.
      3. She asked for a different physiotherapist in September 2019 but this was not acted on until the end of November 2019.
      4. The replacement physiotherapist, Ms B, failed to attend an EHCP Review in December 2019.
  2. Ms X said Ms Y missed physiotherapy after these issues arose in March 2019. She said this, in turn, led to a deterioration in Ms Y’s physical ability and strength. In addition, Ms X said she was extremely upset by these events as her care of her daughter was being questioned in a bullying manner.
  3. Ms X also said she was forced to pay for a private physiotherapy assessment. She said she had no choice but to arrange this as the Trust physiotherapists asked her inappropriate questions about goal-setting which she was not equipped to answer. Ms X said she also had to obtain the private assessment to demonstrate the impact of the missed NHS physiotherapy sessions.
  4. Ms X also complains that she said had to endlessly chase the Trust’s Patient Experience Team for a response to her complaint. Ms X said her emails and phone calls were not responded to and, in the end, she asked the Ombudsman to intervene. Further, Ms X said the Trust’s complaint response defended and explained its actions with false, inaccurate information. Ms X said this process was avoidably extremely tiring.
  5. In bringing her complaint to the Ombudsmen Ms X said she would like:
  • An apology from all concerned for the avoidable stress and upset she has experienced.
  • Compensation for missed physiotherapy programme, to be used to fund a block of private physiotherapy sessions.
  • The costs of a private physiotherapy assessment to be refunded.
  • Physiotherapists to attend future EHCP reviews and improve their communication and engagement with all professionals and families.
  • The Trust to change its policies and improve its communication.

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The Ombudsmen’s role and powers

  1. 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 on behalf of both Ombudsmen (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA).
  2. 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)).
  3. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  4. 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. 
  5. 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).

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How I considered this complaint

  1. I read the correspondence Ms X sent to the Ombudsmen and corresponded with her via email. I wrote to the organisations to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
  2. I shared a confidential copy of my draft decision with Ms X and the organisations under investigation to explain my provisional findings. I invited their comments and considered those I received in response, along with additional information provided to me.

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What I found

Background

  1. Ms Y has complex needs and receives support from a range of health professionals including physiotherapy, orthopaedics and orthotic services. Due to concerns over poor care in the past Ms X arranged for specialists in other parts of the country to manage Ms Y’s orthopaedic and orthotic care.
  2. Children who have special educational needs may have an EHCP. This sets out the child’s special educational needs and the provision needed to meet them. Local authorities have a duty to secure the special educational provision set out in an EHCP unless the parent or young person has made suitable alternative arrangements. (Children and Families Act 2014 section 42)
  3. Ms Y has an EHCP. This includes, in part F, requirements for:

Physiotherapy advice and support provided on a termly basis with the recommendations from the treating therapist implemented throughout Ms Y’s daily curriculum,

and,

Daily input to work on a programme of motor skills recommended by a qualified physiotherapist…This will be delivered [by school staff] throughout Ms Y’s curriculum.

  1. The 2018 EHCP also noted that ‘Ms Y is seen by an NHS physiotherapist once a term. She also has a private physiotherapy programme which Ms Y does twice a week at school with a 1:1 member of staff’. Ms X advised me that a private physiotherapist had begun working with Ms Y in 2007.
  2. Ms A reviewed Ms Y in school in October 2018. She liaised with the private physiotherapist before and after the review and they shared their respective reports. An EHCP review took place at the end of 2018. Ms A was unable to attend and asked the meeting to consider her report of her review in October 2018. The private physiotherapist attended the EHCP review. The review did not lead to any changes in the stated physiotherapy requirements.
  3. Ms A and the private physiotherapist jointly reviewed Ms Y in school, with school staff, in early March 2019. During the review the professionals noted concerns about Ms Y’s foot posture and what they considered to be a poorly fitting ankle foot orthosis (an AFO; a brace that encompasses the ankle and foot to control the position and movement of the ankle).
  4. On the following day the private physiotherapist emailed Ms X and copied Ms A in. The private physiotherapist said all in attendance at the review had agreed there were concerns about Ms Y’s foot posture deteriorating. She asked if Ms X had seen the orthopaedic surgeon recently about possible surgery. The private physiotherapist also queried whether there was a reason why Ms X went to another city to see this speciality.
  5. In addition, the private physiotherapist noted Ms Y’s AFO was rubbing Ms Y’s foot and they all felt she would need one for her other foot. The private physiotherapist said she felt it would be useful for Ms X to reconsider attending orthotic appointments in the local area so the AFO could be adjusted in a more timely manner. The private physiotherapist asked Ms X to let her know her thoughts about the orthopaedic and orthotic issues. The private physiotherapist also noted they had reviewed the exercises school staff helped Ms Y with and did not think anything needed to be amended.
  6. Ms A emailed Ms X later the same day, noting she was following on from the private physiotherapist’s email. Ms A queried whether Ms X would want to explore a local NHS orthotic service. She asked for Ms X’s thoughts on ways they might be able to move the orthotic issue forward. In addition, Ms A said she wanted to echo the private physiotherapist’s suggestion about considering surgery and asked Ms X if she’d had any thoughts about this, or had any plans for it.
  7. Ms X emailed Ms A several days later and noted she had emailed the private physiotherapist separately. Ms X noted she was unhappy with the directness of the emails they had both sent and said she felt under attack. She said there were valid reasons – which she had repeatedly explained before – why she used the orthopaedic and orthotic services in different cities. Ms X said they could not rush into surgery because of the complexities of Ms Y’s needs. She said it would happen when the specialists felt it was the right time, taking account of the full context of her care and wellbeing. Further, Ms X said the orthotic specialist was pleased with the AFO Ms Y had.
  8. Just under four weeks later Ms A wrote a letter to Ms X. Ms A reiterated the concerns that had been raised during the joint review in March 2019. She recommended an orthotic service review Ms Y to check the fit of the current AFO and to consider whether one was required for the other foot. Ms A noted Ms X used a service in another city but said she ‘wanted to let you know again this can be offered more locally in Leeds if you would prefer’. In addition, Ms A recommended Ms X explore with Ms Y’s orthopaedic consultant the longer-term management of Ms Y’s deteriorating foot posture. Ms A asked to be included in any correspondence about this.
  9. Later in the month Ms X exchanged emails with another Trust physiotherapist, Ms B. Ms X noted her concerns about: what Ms A said in her email and letter; how Ms A had communicated these views; and, a lack of contact from Ms A since Ms X raised her concerns. In response Ms B said she felt it would be useful to have a joint clinic consultation with Ms A, Ms B and a paediatrician present along with Ms X and Ms Y. She said this would be about Ms Y’s ongoing care.
  10. Ms X replied to Ms B a couple of days later and said she could not make the suggested time. She also queried the purpose of the proposed meeting and said she had nothing to discuss, for the reasons previously stated in her responses to Ms A’s email and letter. The Trust did not make any further attempts to arrange a meeting.
  11. In May 2019 Ms X complained to the Trust about the actions of Ms A and Ms B.
  12. Toward the end of the month Ms X emailed Ms A and asked her to rearrange the termly review which was scheduled for mid-June. Ms A offered a date in late June but this was not convenient for Ms X. Ms A offered three dates in early July. Ms X replied to say she would check her availability for those dates.
  13. The Trust replied to Ms X’s complaint in mid-July 2019. The Trust:
  • Concluded it had been appropriate for Ms A to have raised the concerns she had. However, it acknowledged that it would have been better for Ms A to have spoken to Ms X about the issues being discussed and the outcome of the review. The Trust apologised that this did not happen. It said that if this had happened it might have helped to clarify some of the concerns.
  • Apologised that Ms A had not acknowledged Ms X’s email in March 2019 which detailed her unhappiness with Ms A’s email. It said her letter had been her response but this had not been clear.
  • Said Ms B suggested a meeting with good intentions but it was sorry for a lack of clarity about it. In addition, the Trust apologised that no one replied to Ms X’s email declining the meeting Ms B had suggested.
  1. A few days after the Trust had sent its complaint response Ms A emailed Ms X and offered to arrange a review meeting before the end of the summer term. Ms X declined the offer and said they would wait until Ms Y returned to school in September.
  2. Ms A emailed Ms X again at the start of September 2019 and asked to arrange a date for Ms Y’s next review. Ms A said that if Ms X felt this was not possible they could arrange a telephone conversation and then Ms A could review Ms Y in school afterwards.
  3. Ms X made a follow-up complaint to the Trust about a week later. This reiterated the complaints she made to the Trust in May 2019.
  4. The Trust told me that in the middle of September 2019 the school advised it that Ms Y’s family had asked for a change of therapist. The Trust said it fed back to the school that the family would need to contact the service directly to discuss this.
  5. The Council told me that in the middle of October 2019 Ms X emailed Ms Y’s teacher and asked the school to stop providing physiotherapy on a daily basis.
  6. At the same time, in the middle of October 2019, Ms X emailed the Trust and said she wanted her request for a change of physiotherapist to be implemented urgently. Ms X emailed the Trust again at the end of October 2019 and asked for her request to be actioned as soon as possible.
  7. A new physiotherapist, Ms C, took over Ms Y’s case in the middle of November 2019. She called the school to confirm this and emailed Ms X to introduce herself and to arrange a time to review Ms Y. Ms X replied to note the suggested time was not convenient .
  8. Toward the end of November 2019 another EHCP review took place. Ms C could not attend as she was off work because of sickness. On her return to work, in early December 2019, she emailed Ms X and they arranged for Ms C to review Ms Y in early January 2020.
  9. The Trust responded to Ms X’s follow-up complaint in late December 2019. The Trust:
  • Said that, with hindsight, Ms A should have been more proactive and made enquiries about the orthopaedic surgeon’s details to ensure they could discuss the case and get the surgeon’s opinions. It said the team would work to improve communication with external colleagues.
  • Did not suggest there had been any delay in assigning an alternative physiotherapist to Ms Y’s case. It apologised that Ms C had not been able to attend the EHCP review but said this had been due to sickness.
  • Apologised that its response to Ms X’s complaint had been delayed and said it would review its processes.
  1. Ms X attended Ms Y’s school for the scheduled review in early January 2020. Ms C was off work because of sickness again. A member of the team had advised the school of this the day before but there is no record of anyone having advised Ms X.
  2. Ms X called the Trust and noted her frustration and, several days later, emailed Ms B about a lack of physiotherapy support since September 2019. Ms B took over responsibility for the case and arranged to review Ms Y and attend an EHCP review at the beginning of February 2020. Ms B later acknowledged receipt of two new reports by the private physiotherapist, completed in November 2019 and January 2020.
  3. Ms B attended the EHCP review in early February 2020, as did the private physiotherapist. Ms B noted she agreed she needed to do a reassessment of Ms Y and needed to discuss with school staff the physical activities in Ms Y’s timetable. Around a week later Ms B reviewed Ms Y in school.

Analysis

Ms A’s actions and communication after a review in March 2019

  1. I accept the conclusion the Trust reached during the complaints process – that it was reasonable for Ms A to raise with Ms X the concerns she had following her review of Ms Y in March 2019. From the available evidence it seems that the private physiotherapist and school staff shared the same concerns.
  2. There was fault in the way Ms A raised the concerns, which the Trust has already accepted. The Trust acknowledged that Ms A should have called Ms X to discuss matters and should have made greater efforts to speak to other specialities. I agree with those sentiments. In particular, following Ms X’s email in March 2019 it was poor practice not to provide any response at all for close to a month, and then to provide only a letter. I consider that the content of Ms X’s email (in response to Ms A’s) could and should have led to a two-way collaborative dialogue between the physiotherapy service and Ms X.
  3. On balance, the failure to speak to Ms X – after the review of Ms Y or after Ms X’s email – was a significant factor in Ms X’s loss of trust in Ms A.

Ms A and other Trust physiotherapists failed to work with her, or other key professionals and did not devise a program for her daughter after that time

  1. As noted above, the Trust has accepted that Ms A should have made a greater effort to liaise with other specialities.
  2. There is evidence to show Ms A offered appointments to review Ms Y again in the summer term, and offered to include Ms X in that process in a way that would be convenient for her. Ms X’s responses to Ms A did not reject these offers outright or give the Trust cause to change Ms Y’s therapist at that time. As such, I cannot say that the lack of review in the summer term was due to fault on the part of the Trust.
  3. In addition, while Ms X has clear concerns about Ms B’s offer, in April 2019, of a meeting to discuss Ms Y’s ongoing care, I do not consider this offer was unreasonable. The Trust has accepted that it should have explained the purpose of the meeting better, and should have made it clear that Ms Y would not need to attend. However, based on the evidence I have seen the Trust appears to have offered this meeting with Ms Y’s needs in mind.
  4. Ms A attempted to arrange a review of Ms Y early in September 2019. Again, I have not seen evidence to show the Trust knew Ms X wanted a different therapist by this point. As such, I accept this offer was a reasonable one and is evidence of the Trust attempting to fulfil the duty to review Ms Y’s needs each term.
  5. I will look at Ms X’s concerns about a delay in assigning a different physiotherapist separately below. There is evidence to show Ms C offered an appointment to review Ms Y three weeks after she took over responsibility of Ms Y’s care. However, plans to review Ms Y before the end of the term were derailed by incompatible availability and by Ms C’s absence due to ill health.
  6. Later, in the first term of 2020, the evidence shows Ms B worked collaboratively with Ms X, the private physiotherapist and the EHCP review in order to review Ms Y’s needs during that term.
  7. Overall, I have not found evidence to show the Trust’s physiotherapy team failed to engage in Ms Y’s case after March 2019. As such, I am satisfied that the acknowledgements and apologies the Trust has already provided – about shortcomings in its communication and actions during this time – are a proportionate response to the faults which occurred.

Delay in assigning a new physiotherapist

  1. From my independent perspective it is difficult to pinpoint when Ms X made this request. I have not seen evidence of the initial request; the emails I have seen from Ms X – in October 2019 – pressed for response to a request she had already made. However, the Trust has advised it knew of a request in mid‑September 2019, having been advised by the school.
  2. In line with the findings about events in March 2019 there should have been better communication with Ms X after the Trust received this information from the school. Rather than effectively using the school as a messenger it seems it would have been more appropriate and customer focused to have contacted Ms X directly to discuss her concerns. I consider this lack of contact with Ms X about her request is fault on the part of the Trust.
  3. If the Trust had contacted Ms X – rather than passing a message back to the school – her request would have bene ‘formalised’ approximately one month sooner. It follows that the Trust would have assigned a new physiotherapist to Ms Y’s case one month sooner. On balance, without the fault there would have been a different therapist in place by mid-October instead of mid-November. This would have allowed more time to have arranged the first term review and may have increased the chances of it taking place, notwithstanding staff absence. Overall, on the balance of probabilities, if this fault had not happened there would have been a review of Ms Y’s physiotherapy needs by the Trust before the end of the term in December 2019.
  4. The Council holds the ultimate responsibility for ensuring Ms Y received the support included in part F of her EHCP. However, the Council had commissioned the Trust to provide this care and had a reasonable expectation this arrangement was continuing. The evidence suggests it was not until January 2020 that the Council knew of Ms X’s concerns about a lack of physiotherapy input. Therefore, I consider the Trust to be responsible for the fault here.
  5. The lack of a review during this term has left uncertainty about whether Ms Y’s programme may have been altered and refined if a review had taken place. This uncertainty alone is an injustice to Ms X.
  6. I cannot link the fault here directly to Ms X’s decision to engage the private physiotherapist during this period. From the papers available to me there is evidence that the private physiotherapist had active involvement in Ms Y’s case prior to March 2019. As such, I cannot discount the possibility that, even without the fault, Ms X would still have sought the advice and input of the private physiotherapist at this time.
  7. Further, even on the balance of probabilities, I cannot link the fault here to any avoidable deterioration in Ms Y’s strength and abilities. There are a range of physical variables in this complex case and a report from the private physiotherapist refers to a deterioration over a much longer period. There are too many unknowns to be able to say whether a review during the September‑to‑December term could have helped to reduce some of this deterioration.
  8. Therefore, the injustice leading from this fault is frustration and a continuing sense of uncertainty about whether there may have been a better outcome had the fault not happened. I have made a recommendation to address this below.

Failure of Ms C to attend an EHCP review in December 2019

  1. This happened due to illness. It is regrettable that this was the case but this is not evidence of fault by the Trust.

Complaint handling

  1. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (the Complaint Regulations) set out the responsibilities of health organisations in dealing with complaints about their service.
  2. The Complaint Regulations do not specify how long an investigation should take. However, section 13 states that the likely timescales for completing the investigation and providing a response should be determined at the start of the process. This can be done in discussion with the complainant. If the complainant does not want a discussion the body must determine these timescales itself and confirm them to the complainant in writing.
  3. Ms A made her initial complaint in May 2019. The Trust acknowledged it and said it aimed to respond by the middle of July 2019. It provided its response close to eight weeks later, inside the deadline it had set.
  4. Ms A made her follow up complaint in early September 2019. The Trust acknowledged Ms A’s email but did not commit to a deadline for responding. The Trust sent its response over 14 weeks later. As Ms X notes, there is evidence of her chasing the Trust on several occasions in the interim. There is no clear evidence to show why this investigation took as long as it did. Further, the Trust’s updates appear to have been reactions to Ms X’s chasers rather than proactively keeping her informed.
  5. The Trust has acknowledged that the response was delayed and apologised. It also noted that it has identified improvements that could reduce the response time for follow-up complaints. I am satisfied this was a reasonable response to the frustration the delayed response caused.

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Agreed actions

  1. Within one month of the final decision the Trust will write to Ms X to acknowledge that it should have contacted Ms X directly after the school advised it of her request for a change of therapist. The Trust should also acknowledge that if it had contacted Ms X directly it could have assigned a different physiotherapist to Ms Y’s case around a month sooner and, had this happened, it is likely Ms Y’s physiotherapy needs would have been reviewed that term. Further, the Trust should apologise to Ms X for the sense of uncertainty this has left about whether Ms Y’s physiotherapy programme could and should have been adjusted during the term.
  2. Within one month of the final decision the Trust will provide feedback to relevant physiotherapy and patient experience staff about the outcome of this investigation. The Trust should note the findings of fault and the impact they had on Ms X, and encourage reflection with the aim of improving service in the future.
  3. The Trust will provide the Ombudsmen with evidence that it has completed both recommendations.

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Decision

  1. I found fault by the Trust which caused Ms X an injustice. I have completed this investigation on the basis that the agreed actions will address this injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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