The Ombudsman's final decision:
Summary: The Ombudsmen find no fault in the care a Hospital Trust, Council-funded Care Home and GP Surgery provided to an older patient following hip surgery. The patient’s hip became dislocated but, in view of the wider situation, there is no indication this was missed because of poor care.
- Ms G and Mr X complain about the care arranged and provided for their aunt, Mrs R, between October and December 2017. Ms G and Mr X complain:
- Torbay and South Devon NHS Foundation Trust (the Trust) and Torbay Council (the Council) should not have discharged Mrs R from hospital to Pendennis Residential Care Home (the Care Home) in mid-November 2017. Ms G and Mr X said Mrs R’s needs warranted a nursing home placement.
- Staff from the Care Home, the Trust and Corner Place Surgery (the Surgery) failed to identify that Mrs R had a dislocated hip. They said it was not diagnosed until a routine post-surgery scan showed it at the end of November 2017. Ms G and Mr X said it remains unclear whether Mrs R had this injury before she left hospital. Further, they complain that Mrs R’s symptoms should have prompted more urgent action from the professionals involved in her care.
- Ms G and Mr X said failings in Mrs R’s care led to an avoidable and rapid deterioration in her physical and mental health. They said this culminated in her premature death and an unnecessarily painful and traumatic end to her life. Ms G and Mr X said this, in turn, left the family deeply upset.
- In bringing their complaint to the Ombudsmen Ms G and Mr X would like:
- To know whether the care Mrs R received was appropriate, and if the deterioration in her condition could have been prevented
- The staff involved to learn from this experience to prevent this from happening to others in future
- The money paid as contributions to the cost of Mrs R’s stay at the Care Home to be refunded to her estate.
The Ombudsmen’s role and powers
- 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 on behalf of 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 considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- 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))
- The Ombudsmen may investigate, and question the merits of, action taken in the exercise of clinical judgement.
- 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 read the correspondence Ms G and Mr X sent to the Ombudsmen and spoke to them on the telephone. 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 and took advice from a practicing GP with relevant experience and no conflicts of interest.
- I shared a confidential copy of my draft decision with Ms G and Mr X and the organisations under investigation to explain my provisional findings. I invited their comments and considered those I received in response.
What I found
- In October 2017 Mrs R lived alone in her own flat. She could move around on her own with a walking frame. In 2015 she had undergone a left total hip replacement. She had previously had a heart attack. In addition, Mrs R had osteoporosis, arthritis, high blood pressure and dementia.
- In the middle of the month Mrs R fell at home and broke her leg. Mrs R went to hospital and surgeons completed a revision of her total hip replacement. They instructed that she should not do more than touch-weight-bear for the next six weeks. Mrs R was in a lot of pain in the days following the operation. An X-ray found her hip was still in joint. Mrs R continued to complain of pain over the following weeks and medical staff prescribed additional pain relief. Physiotherapists reviewed Mrs R but she had difficulty doing the recommended exercises.
- At the end of October a physiotherapist spoke to Mrs R. They noted it would not be safe for Mrs R to go home and recommended she go to a temporary placement when she left hospital. The family agreed it would not be safe for Mrs R to go home. The hospital referred Mrs R to the Council.
- In the middle of November a social worker met with Mrs R, a member of the family and a friend of Mrs R. The social worker completed an assessment of Mrs R’s needs. Following the assessment the social worker planned to arrange a temporary residential care placement for Mrs R. Staff from the Care Home visited Mrs R on the ward and concluded the Care Home would be able to meet her needs. The Council agreed a six-week stay.
- Mrs R left hospital and went to the Care Home the next day. The hospital made a follow-up appointment for Mrs R at its fracture clinic in two weeks’ time.
- Mrs R stayed in the Care Home for the next two weeks. During this time community nurses visited daily to give Mrs R an injection of fragmin (a drug used to help stop blood clots forming). Two GPs from the Surgery saw Mrs R during these two weeks. A GP also spoke to Care Home staff about Mrs R the day before the second visit.
- At the end of November Mrs R went to hospital for her scheduled appointment at the fracture clinic. During this appointment a surgeon found Mrs R’s hip was dislocated. They admitted her to hospital and completed surgery a couple of days later.
- Mrs R remained in hospital until the second half of December and then went to a nursing home. She stayed there until she sadly died in early January 2018.
Safeguarding and complaints process
- Following Mrs R’s readmission to hospital at the end of November, the Trust raised a safeguarding alert in relation to Mrs R’s dislocated hip. It noted that members of the family had raised concerns that no one from the Care Home or Surgery had identified this. The family also raised the question of whether the hospital may have discharged Mrs R with a dislocated hip.
- The author of the alert noted they had spoken to a ward physician assistant who said Mrs R had been checked for dislocation three times before discharge. They said Mrs R did not have a dislocated hip when she was discharged. The author also spoke to a physician. The physician said Mrs R had experienced a lot of pain after her operation and this had caused her to have a contracted position in bed. They said this meant she had been at high risk of dislocation.
- A Council safeguarding officer spoke to the manager of the Care Home and a GP from the Surgery. The Council closed the safeguarding enquiry in late December 2017 on the basis that no further action was required. The enquiry said it was not possible to say when Mrs R dislocated her hip, but did not find the actions of the professionals involved in her care had put her at risk.
- In late January 2018 Mr X complained to the Trust about Mrs R’s discharge from hospital. The Trust did not identify any failings.
- Mr X complained to the Care Home at the end of March 2018. It said it could not explain how Mrs R dislocated her hip, but did not find any failings in its care.
- The Surgery did not receive a complaint about these events. Given the history of the case, including the safeguarding enquiries which had involved the Surgery, the Ombudsmen chose to exercise their discretion and investigate the case. After the investigation began the Surgery arranged a Significant Event review, for its clinical staff to consider the case and whether anything could be learned from it.
- The Surgery found its GPs had acted on the assumption that Mrs R’s issues related to her recent admission, rather than treat it as an assessment of a new clinical problem. It said that, in future, the GPs would be mindful to keep an open mind about the possible causes of a patient’s problems.
Discharge from hospital
Relevant legislation and guidance
- Leaving hospital after an inpatient stay is part of a process and not an isolated event. Planning should start at the earliest opportunity and it should involve health and social care staff in the hospital and community working together. The process should lead to a personalised plan for each patient who is leaving hospital. Good discharge planning should help patients leave hospital safely, without delay and with suitable support ready in the community. Key guidance about this is the Department of Health’s Ready to go? Planning the discharge and transfer of patients from hospital and intermediate care, published in 2010. I’ll refer to this as the Discharge Guidance.
- This has been added to by a guideline from the National Institute for Health and Social Care Excellence (NICE) in 2015: Transition between inpatient hospital settings and community or care home settings for adults with social care needs. I’ll refer to this as the Transition Guidance. This echoes the Discharge Guidance in recommending close working and regular contact between health and social care staff, to make sure moves from hospital are well coordinated and everything is in place. It also repeats the Discharge Guidance that assessing a person’s needs should start straight away and should address a range of factors including the need for assessments of eligibility for health or social care funding. This should result in a plan that includes any arrangements for ongoing health and social care.
- As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe. (The Care Act 2014, Schedule 3; and, The Care and Support (Discharge of Hospital Patients) Regulations 2014)
- Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. (Care Act 2014, Sections 9 and 10) When the council gets an ‘assessment notice’ from a hospital its duty to assess the person’s needs under the Care Act (s9) is triggered.
- There is no set assessment process, but it should be proportionate to the person’s needs. (Section 6.3, Care and Support Statutory Guidance (CSSG)) An assessment must be done ‘before the local authority considers the person’s eligibility for care and support and what types of care and support can help to meet those needs’. (Section 6.10, CSSG)
- The Trust acted appropriately by considering Mrs R’s post-hospital needs early on. It identified that it would not be safe for her to return home and referred her to the Council. This was in line with the Discharge and Transition Guidance.
- Having received this referral it was then for the Council to determine what needs Mrs R had, and how to meet them.
- The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant responsible body (in this case, the Council) has to make. Therefore, my investigation has focused on the way that the body made its decision.
- The records show a social worker met with Mrs R along with a friend and member of the family. They got information about Mrs R’s health before she came into hospital, including about her long‑term conditions. The social worker also noted the surgical team’s instructions about low long Mrs R would need to be ‘off her feet’. There is also evidence to show the social worker had spoken to members of hospital staff about Mrs R’s needs in the hospital.
- There is, therefore, evidence that the Council conducted a proportionate assessment of Mrs R’s needs and obtained relevant information through this process. Having made this assessment of Mrs R’s needs the Council asked the Care Home to complete its own assessment, to confirm if it would be able to meet her needs. The Care Home had been assessed by the Care Quality Commission (the CQC) in March 2016 and given a ‘Good’ rating.
- Overall, I have not identified any shortcomings in the process the Trust and Council followed before discharging Mrs R to the Care Home. As I have not found any fault in the process, it follows that the decision (that Mrs R’s needs could be met in a residential care home) was a professional judgement the Council was entitled to make.
Events during Mrs R’s time in the Care Home
Relevant legislation and guidance
- There are standards for safety and quality care homes need to meet. (The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014) The CQC has written guidance to help care homes meet these standards, known as the Fundamental Standards. (Guidance for providers on meeting the regulations, March 2015) Under these regulations care homes need to make sure people are kept safe from avoidable risk and harm, and from unsafe care and treatment. (Regulation 12)
- In 2013 the General Medical Council (the GMC) issued guidance on good medical practice (Good medical practice, 2013). This said where doctors ‘assess, diagnose or treat patients they must:
- Adequately assess the patient’s condition, taking account of their history (including the symptoms…)…; where necessary, examine the patient
- Promptly provide or arrange suitable advice, investigations or treatment where necessary
- Refer a patient to another practitioner when this serves the patient’s needs.’ (Paragraph 15, Good Medical Practice)
- Hip revision surgery is often more complicated than the original hip replacement surgery. It is a longer, more complex procedure. This added complexity means there is a greater risk of complications. One of the known possible complications is dislocation – when the ball part comes out of the socket because the muscles have not fully healed.
- It is expected that the patient will feel some pain following the surgery, regardless of whether there are any complications. Pain following surgery can last for a few weeks. It is also common to feel more tired than usual, as the body recovers.
- When a surgeon reviewed Mrs R in clinic at the end of November they noted ‘it is difficult to know how long this hip has been out’. However, they said there were clinical signs ‘suggesting this has been out for some time’.
- Based on the evidence to hand I cannot give a clear answer about when Mrs R’s hip became dislocated, even on the balance of probabilities. This includes whether it may have been even before Mrs R left hospital.
- Medical staff, nursing staff and physiotherapy staff had all been involved in reviewing Mrs R before concluding it would be safe for her to leave hospital. The hospital had prescribed additional pain relief for Mrs R, but being in pain was in keeping with the expected after‑effects of surgery of this kind. The records show staff were mindful of the possibility of a dislocation but did not find this was the case. Overall, there is evidence of appropriate multi-disciplinary involvement in Mrs R’s care before she left hospital.
- The Care Home’s first entry after Mrs R moved in noted ‘Her leg is very painful and not straightening’. Night staff noted the following morning that Mrs R had been awake a lot of the night and ‘she is in a lot of pain’.
- However, over the next two weeks there is evidence this was not constant and Mrs R had a fluctuating level of pain. On one hand:
- Care Home staff asked Mrs R if she was in pain in the early hours of 17 November and she said she was not
- A community nurse completed an assessment of Mrs R the same day. They noted back and shoulder pain, but did not document any pain in her leg
- Care Home staff recorded on 20 November that Mrs R was ‘not in so much pain’
- A GP noted on 22 November that Mrs R was not in any distress when she was at rest
- The family said they visited Mrs R on 23 November and she seemed comfortable and without pain
- The family visited again at lunchtime on 24 November and noted her pain seemed under control.
- However, in contrast:
- A community nurse noted on 17 November that Mrs R was in considerable pain, and asked a GP to visit because of this
- Care Home staff noted on 18 November that Mrs R was in a lot of pain
- Care Home staff telephoned the Surgery on 21 November because they did not feel Mrs R’s current pain relief was adequately meeting her needs. The GP agreed to prescribe further pain relief. On this day a community nurse noted that Mrs R’s ‘hip still causing distress’
- The family visited Mrs R in the evening of 24 November and found she was in obvious pain.
- It was appropriate for Care Home staff to seek medical advice when it felt Mrs R’s pain was not well controlled. It was also reasonable for care staff to respect the professional expertise of medical and nursing staff who reviewed Mrs R. Overall, given the evidence of fluctuating levels of pain I have not found the Care Home failed to escalate matters further.
- The Surgery has reflected on these events at a Significant Event review. It noted that both GPs had Mrs R’s recent hospital admission in the forefront of their mind when they reviewed her. This admission offered an explanation for Mrs R’s pain and general health, and they considered matters in that context. However, the Surgery has noted that, with hindsight, it could have kept a more open mind about the situation. Specifically, it has noted that the GPs ‘could’ have completed a formal examination of Mrs R’s hip.
- While dislocations are a known complication of this type of surgery they are not a problem that is routinely seen in general practice. As the Surgery has noted, Mrs R’s recent hospital did offer an explanation for her pain. The GPs were aware that Mrs R’s pain in hospital had been of a level for the doctors there to have prescribed a fairly high level of pain relief. In addition, the Surgery would have known about the planned fracture clinic appointment at the end of the month. A GP had offered Mrs R a readmission to hospital a couple of days after she entered the Care Home, but Mrs R did not want this. A GP also later prescribed an additional medication for pain relief, which was reasonable. In this situation the Surgery’s main consideration was whether matters were too severe to wait for the fracture clinic appointment, and whether there should be an emergency admission to hospital. The available evidence does not suggest an emergency admission was warranted at this time.
- The Surgery also said that even if it had examined Mrs R the situation would still have been uncertain. It said this is because of the amount of pain it would have expected Mrs R to have been in anyway, due to her recent surgery. This is a reasonable conclusion. If the GPs had tried to examine Mrs R’s hip it is highly likely it would resulted in pain for her. However, on balance, it is unlikely to have been possible to have differentiated this from the pain the GPs had a reasonable expectation that Mrs R would have been in anyway. Therefore, while the Surgery has noted its GPs could have undertaken a hip examination, I do not consider the failure to do so amounts to fault.
- Overall, there is evidence to show the Care Home was aware of Mrs R’s pain and took proportionate steps to get medical advice. Based on the comments of the surgeon who identified the dislocation, it seems probable it was dislocated for at least some of the time when Mrs R was in the Care Home. However, while GPs could have undertaken a more thorough examination, it is not possible to say this would have helped to identify the dislocation earlier.
- The Surgery has reflected on this period of care. It identified an underlying issue which will be applicable for a wide range of consultations, not just those involving patients who have recently undergone replacement hip surgery. This was appropriate and should help ensure that lessons have been learned.
- I have closed this investigation on the basis there is no evidence of fault.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman