Northern Care Alliance NHS Foundation Trust (23 002 530b)

Category : Health > Community hospital services

Decision : Not upheld

Decision date : 21 Apr 2024

The Ombudsman's final decision:

Summary: We investigated a complaint about the care provided to Mrs A’s late brother, Mr B. We found fault with the Integrated Care Board who did not respond to Mrs A’s complaints in a timely manner, made a derogatory comment about her and interpreted her words rather than seeking clarification. We recommended and the ICB agreed to apologise to Mrs A to remedy the injustice. We found no fault with the actions of the Council, Park Hills Care Home and the Trust.

The complaint

  1. Mrs A complains about the care and treatment provided to her brother, Mr B, before his death. The organisations involved were Oldham Council (the Council), Northern Care Alliance NHS Foundation Trust (the Trust), NHS Greater Manchester Integrated Care Board (the ICB) (previously NHS Oldham Clinical Commissioning Group (CCG)) and Park Hills Home Care Ltd (hereafter Park Hills).
  2. Specifically, Mrs A complains;
    • The ICB took several years to investigate her concerns.
    • A subject access request (SAR) to the ICB revealed a derogatory comment about Mrs A which she feels is unprofessional.
    • The ICB and the Council commissioned Park Hills to provide care to Mr B but the staff were not trained to provide the care he needed. Neither the Council nor the ICB explained why they felt Park Hills was the best company to care for Mr B. Neither the Council nor the ICB has taken accountability for supporting Park Hills despite the problems the family faced.
    • Mrs A wants to know why 42 hours of home care over a week was the most the ICB would commission for Mr B.
    • The ICB has repeated many times Mrs A asked for 24/7 at home care, but this is not true. She agrees she asked for more than 42 hours a week, but not 24/7 as she already knew this was not possible.
  3. Mrs A says her brother did not receive enough care in his last days. She had to take time off work to care for Mr B. She feels the ICB’s complaint response, and the time taken to investigate the complaint is disrespectful to her and Mr B. It has caused her distress and left her unable to grieve. She has received no reassurances positive change has occurred and she is worried other people, who do not have support such as her brother did, are vulnerable.
  4. Mrs A wants answers and explanations to the parts of her complaint local investigation has not provided. She wants an apology, service improvements and reassurance change has happened and no one else will suffer as her brother did.

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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 a single team has considered these complaints acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, 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), as amended)
  3. 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 acts to stop the same mistakes happening again.
  4. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  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 considered the complaint Mrs A made to the Ombudsmen and information she provided by email. I also considered the information the Council, the Trust, the ICB and Park Hills provided in response to my enquiries.
  2. I shared a confidential draft with Mrs A, the Council, the Trust, the ICB and Park Hills to explain my provisional findings and invited their comments on them. I considered the comments I received before making a final decision.

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What I found

Background

  1. Park Hills was providing care to Mr B which was paid for by the Council and the ICB. The Trust were also involved in Mr B’s care as he was an outpatient after a tongue removal operation.
  2. Mr B received care at home.

ICB complaint investigation

Timeliness

  1. Mrs A complains the ICB took several years to investigate her concerns. Mrs A made three complaints to the ICB between 2020 and 2021. The ICB responded to these in two letters, the first on 9 January 2022 and the second on 26 June 2023. The ICB explained it could not look at the latter two complaints until after it had completed the first investigation.
  2. Mrs A chased the ICB and raised concerns with the Parliamentary and Health Service Ombudsman (PHSO) about the time it was taking to investigate her complaint. The PHSO spoke to the ICB in November 2022 and the ICB said it was still investigating Mrs A’s complaint. The PHSO decided Mrs A should wait to receive a final response to all her complaints before it could look at them.
  3. As part of my investigation, I asked the ICB to explain why it had taken so long to investigate Mrs A’s complaint. It said it had a backlog of historic cases when it went from the CCG to the ICB, Mrs A’s complaint was one of these. It explained this was in part because of service pressures caused by the COVID-19 pandemic. It accepts both responses to Mrs A’s complaints were significantly outside the expected timescales and recognises the impact this would have had on Mrs A. The ICB apologised to Mrs A for the time taken when it sent the final responses.
  4. The NHS Constitution says complainants “have the right to discuss the manner in which the complaint is to be handled, and to know the period within which the investigation is likely to be completed”.
  5. The Local Authority Social Services and National Health Services Complaints (England) Regulations 2009 set out guidance for NHS organisations to follow. Complaints follow a statutory complaints procedure governed by law and the process can take a maximum of six months to complete from the date of receipt. The regulations say “14 (1) A responsible body to which a complaint is made must - (a) investigate the complaint in a manner appropriate to resolve it speedily and efficiently”.
  6. The PHSO’s ‘Principles of Good Complaint Handling’ say organisations should “deal with complaints promptly, avoiding unnecessary delay, and in line with published service standards where appropriate.”
  7. The ICB’s customer service policy, which includes complaint handling says it will “endeavour to respond as quickly and effectively as possible to resolve complaints.”
  8. The time it took the ICB to respond frustrated Mrs A. She says this left her unable to move on as she did not understand what happened with her brother’s care. The ICB did not update Mrs A so she contacted the PHSO to find out if the investigation was ongoing. This is not in line with guidance. The ICB issued both responses to Mrs A’s complaints outside the statutory timescales. This is fault which caused an avoidable injustice to Mrs A.
  9. While the ICB has already apologised to Mrs A for the delay in sending the final response, it has not apologised for not keeping her updated or acknowledged the additional distress this would have caused.

Derogatory comment

  1. Mrs A made a SAR to the ICB to try to understand what happened with her brother’s care. An email dated 11 September 2020 had the comment “I would be grateful for the chance to chat this case through as I don’t think it will go away”. Mrs A feels this is unprofessional and also that the ICB were not taking her concerns seriously, instead seeing her as a problem.
  2. The ICB has not investigated this complaint locally. The Ombudsmen exercised its discretion to look at this because Mrs A had already waited over two years for a response to her other complaints and she has lost faith in the ICB to investigate her concerns properly.
  3. During this investigation, I asked the ICB for its comments. The ICB explained the staff member who made the comment no longer works at the ICB so it could not interview them. However, the Clinical Lead said “all record keeping needs to be defensible and [they feel] this comment is not.” They added “the comment was inappropriately phrased and Complex Care Team within the former CCG and within the current Integrated Care Board would expect a higher level of professionalism to the contents and phrasing of all emails”.
  4. The PHSO’s ‘Principles of Good Administration’ says organisations “should manage records in line with recognised standards to ensure that they can be retrieved and that they are kept as long as there is a statutory duty or business need.”
  5. The Records Management Code of Practice for Health and Social Care 2016 says the ICB should keep complaint records for 10 years. The ICB’s customer service policy which was in place at the time says, “keeping clear and accurate records of complaints is important and these should be retained in line with the CCG’s retentions policy and for a minimum period of ten years.”
  6. The ICB has confirmed the CCG had a code of conduct which all staff sign when they start employment. It covers data handling, retention, and disclosure.
  7. The NHS Constitution says all NHS organisations should aspire to the highest standards of excellence and professionalism. It adds “respect, dignity, compassion and care should be at the core of how patients and staff are treated.”
  8. The comment revealed in the SAR was unprofessional and did not show the level of respect outlined in guidance. This is fault. This caused Mrs A to question the impartiality of the ICB and she felt she could no raise this with it directly, so she had no choice but to come to the Ombudsmen for resolution. This caused an avoidable injustice to Mrs A.

Commissioning of care

Choice of Park Hills

  1. The Council and ICB commissioned Park Hills to care for Mr B. Mrs A complains neither has explained why it felt Park Hills was the best company to meet Mr B’s needs.
  2. The Council said it was aware of Mr B since 2018 and fully funded his care at home until the ICB took over in September 2020. The Council worked with Mr B and Mrs A throughout and they actively input into what Mr B’s his care looked like.
  3. The Council found and commissioned Park Hills from August 2020. It completed an assessment and provided Park Hills with the proposed care and support plan so it could assess if it could meet Mr B’s needs.
  4. Park Hills had a meeting with Mr B and Mrs A to discuss the care he needed. It explained what care the Council and then the ICB was commissioning and explained it could meet Mr B’s needs. All parties agreed Park Hills could provide the home care Mr B needed.
  5. The ICB took over funding for Mr B’s care in September 2020. The ICB explained it has commissioned Park Hills for many years and has no record of other complaints about the standard of care and support it provided. The Council assured the ICB Park Hills has been through its sourcing checks, and it had suitably trained staff to provide the care Mr B needed. Park Hills was already caring for Mr B and there was no suggestion of dissatisfaction with the care up to that point. The ICB therefore considered Park Hills best placed to ensure continuity of care for Mr B.
  6. I understand there were later issues with the care Park Hills provided, but these were looked at by the ICB during its complaint investigation. I find no fault with the actions of the Council or ICB in commissioning Park Hills to care for Mr B.

Amount of care

  1. Mrs A complains the ICB has repeated many times in its complaint response she was asking for 24/7 at home care and would not consider alternatives. Mrs A explains this is not true. She agrees she asked for more, but not 24/7 as she already knew this was not possible.
  2. Mrs A also wants to know why 42 hours of home care a week was the most the ICB would commission for Mr B.
  3. I asked the ICB to comment on this part of Mrs A’s complaint and provide evidence of where Mrs A had asked for 24/7 at home care which it had relied on its complaint response.
  4. The ICB said it could find no written record of Mrs A asking for 24/7 at home care, but it assumed this based on many meetings and the fact Mr B said he did not want to move to a nursing home.
  5. The PHSO Principles of Good Complaint Handling says organisations “should give clear, evidence-based explanations, and reasons for their decisions.”
  6. I understand this was a difficult time for Mrs A and her priority was ensuring Mr B was receiving the care he needed. The ICB has interpreted what Mrs A and Mr B were asking for and repeated this in its complaint response. I understand why this caused frustration to Mrs A, especially when she had to wait a long time for the response and then had to raise the same issue with the Ombudsmen.
  7. It is my view the ICB should have considered its wording more carefully and relied on evidence rather than interpretation when responding to Mrs A’s complaint. This is fault.
  8. Mrs A has also asked why the ICB would only commission 42 hours of at home care a week for Mr B.
  9. In its complaint response of 9 January 2022, the ICB explained it discussed the care Mr B needed in a multi-disciplinary team meeting. It added “should a patient’s needs be that acute that they require 24-hour care, it is generally safer and more appropriate for this care to be provided in a care home setting rather than at home.” It also added “the foremost issue is providing the safest care in the most appropriate setting as per the guidance set out in the National Framework for NHS Continuing Healthcare and NHS funded nursing care.”
  10. The ICB explained it could offer 24/7 care in a nursing home to Mrs A and Mr B when his health worsened.
  11. ICBs have a duty to provide people with the care and support they need. They also have responsibilities to use their funding efficiently, effectively and sustainably and in the best interests of the entire community they serve.
  12. The principles of the NHS Constitution include a commitment to providing value for taxpayers’ money, and being accountable to the public, communities and patients it serves. The Health and Care Act 2022 introduced a ‘triple aim’ of three common duties for all NHS commissioners. This includes the duty to consider the effects of their decisions on the sustainable and efficient use of resources. The NHS Commissioning Board’s ‘Ethical Framework’ 2013 also reinforces the need to show clinical effectiveness and value for money. These considerations are vital to all commissioning decisions.
  13. The ICB decided not to commission more than 42 hours a week home care for Mr B because above this, his needs could be better met in a nursing home. Mr B wanted to stay at home, so the ICB respected this decision and offered the maximum funding it could to support him.
  14. Mrs A wanted her brother to remain at home as was his wish. However, I am satisfied the ICB decided not to commission further care because it was safer for Mr B to move to a nursing home. I find no fault with the ICB’s actions.

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Agreed actions

  1. The Ombudsmen made and the ICB agreed to the following actions.
  2. Within one month of the date of the final decision, the ICB should
    • Apologise to Mrs A for the frustration caused by interpreting her words rather than relying on recorded facts.
    • Apologise to Mrs A for not keeping her updated during the local complaint investigation process, acknowledging the undue distress and frustration this caused her.
    • Apologise to Mrs A for the derogatory comment which was revealed in the SAR and explain what steps the ICB has taken to ensure such an incident does not occur again.
  3. The ICB should provide the Ombudsmen with evidence it has complied with the above actions.

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Final decision

  1. I partly uphold the complaint. I found fault by the ICB which caused an avoidable injustice to Mrs A. I have found no fault with Park Hills, the Council or the Trust. I close the investigation on the basis the agreed actions provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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