The Ombudsman's final decision:
Summary: Mid Essex Hospital Services NHS Trust and Royal National Orthopaedic Hospital NHS Trust caused Mr Y frustration while he waited for hip surgery. Essex County Council made Mr Y aware of the charges for a care home before making him a temporary resident. Also, the Council correctly charged Mr Y. The Council and Mid Essex’s joint complaint response was unnecessarily drawn out, which caused further distress to Mr Y and Mr X time and trouble.
- Mr X complains on behalf of his uncle, Mr Y, about the actions of Essex County Council (the Council), and Mid Essex Hospital Services NHS Trust (Mid Essex) and Royal National Orthopaedic Hospital NHS Trust’s (Royal Orthopaedic) care and treatment.
- Mr X says that Mid Essex prematurely discharged Mr Y in September 2015, as he was still suffering with a skin infection.
- Mr X says Mid Essex and Royal Orthopaedic jointly took two years to operate on Mr Y’s hip after September 2015. There were six cancelled operations, and those delays were unnecessary.
- Mr X says that when Mid Essex discharged Mr Y to a care home (Valentine House) the Council did not provide information about charges. Mr X is also unhappy that when Mr Y’s funds fell below the threshold, the Council depleted his savings.
- Mr X says all three organisations’ complaint handling was flawed. They took too long to respond to his complaints and their responses were inaccurate.
- Mr X says that Mr Y has suffered distress, pain and having to live away from home since September 2015. Mr X says that delays by the Royal Orthopaedic meant Mr Y had to stay at Valentine House for much longer than necessary. Therefore, the Council should not charge Mr Y.
- Mr X says he has personally suffered the time and trouble dealing with all three organisations.
- Mr X says Mid Essex should pay for Mr Y’s care costs as it placed him in Valentine House on a ‘temporary basis’. Also, he would like all organisations to apologise to Mr Y for the impact their actions have had on him.
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.
- We normally name care homes in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home. (Local Government Act 1974, section 34H(8), 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 and Mr Y have provided to me. I have asked the Council, Mid Essex and Royal Orthopaedic to comment on the complaint and provide supporting documentation. I have taken the relevant law and guidance into account before coming to a view. I have also spoken to two independent orthopaedic surgeons and a nurse.
- I have written to Mr X, Mr Y, the Council, Mid Essex and Royal Orthopaedic with two draft decisions and considered their comments.
What I found
- The Nursing and Midwifery Council say that staff should always practice in line with the best available evidence, and keep accurate and clear records. (The code: professional standards for nurses and midwives, 2015)
- The European Pressure Ulcer Advisory Panel, National Pressure Ulcer Advisory Panel and Pan Pacific Pressure Injury Alliance jointly produced a guide for wound classification, and how to prevent and treat pressure ulcers. (Prevention and Treatment of Pressure Ulcers: Quick Reference Guide, 2014).
- The Girdlestone surgical procedure is used to treat an infected artificial hip. It involves removing part of the ball of the thigh bone. This allows it to fuse with the hip socket into the straight leg position. Alternatively, a two-stage revision involves removing the artificial hip and eradicating infection (first stage), and replacing the hip (second stage).
- A scientific study concluded that: “…the Girdlestone is being reserved for an increasingly elderly population with multiple co-morbidities. This study confirms that for such a group of patients the procedure can still offer acceptable functional outcomes and can be a worthwhile surgical option when employed appropriately”. (Basu, I., Howes, M., Jowett, C. Levack, B. Girdlestones excision arthroplasty: Current update. International Journal of Surgery 9 (2011) 301-313).
NHS Continuing Healthcare
- NHS Continuing Healthcare (CHC) is a package of care arranged and funded solely by the NHS. It can be provided in any setting. In October 2007 the Department of Health issued the National Framework for NHS Continuing Healthcare (the National Framework). It was revised in December 2009 and again in November 2012. In March 2010, the Department of Health published its Practice Guidance to support professionals responsible for fulfilling the National Framework.
- Eligibility for CHC does not depend on a diagnoses or conditions. Rather, it rests on whether a person has a ‘primary health need’. This is where a person’s overall needs go beyond the limits of a local authority’s responsibilities.
- Usually the first step in the assessment process is a screening stage. A professional evaluates a person’s needs using a Checklist tool. This can lead to a full assessment if the Checklist suggests the individual may have enough needs to quality for CHC.
- Councils can make charges for care and support services they provide or arrange. Charges only cover the cost the council incurs. (Care Act 2014, section 14)
- Intermediate care and reablement support services are for people after they have left hospital or when they are at risk of having to go into hospital. They are time limited and aim to help a person to preserve or regain the ability to live independently. Regulations say local authorities must not charge for the first six weeks of intermediate care or reablement services. They may make a charge where services are provided beyond the first six weeks. (Reg 4, Care and Support (Preventing Needs for Care and Support) Regulations 2014)
- A temporary resident is someone admitted to a care or nursing home where the agreed plan is for it to last for a limited period, such as respite care, or there is doubt that permanent admission is required. The Care and Support (Charging and Assessment of Resources) Regulations 2014 and the Care and Support Statutory Guidance 2014 set out charging rules for temporary residential care. When the Council arranges a temporary care home placement, it has to follow these rules when undertaking a financial assessment to determine how much a person has to pay towards the costs of this stay. The rules state that people who have over the upper capital limit are expected to pay for the full cost of their residential care home fees. However, once their capital has reduced to less than the upper capital limit, they only have to pay an assessed contribution towards their fees. The council must assess the means of people who have less than the upper capital limit, to decide how much they can contribute towards the cost of the care home fees.
- Councils must assess a person’s finances to decide what contribution he or she should make to a personal budget for care. The Council can take a person’s capital and savings into account subject to certain conditions. (Care Act 2014 Department for Health, ‘Fairer Charging Guidance’ 2013, and ‘Fairer Contributions Guidance’ 2010)
- 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.
- In November 2014, Mr Y fell and damaged his artificial hip joint. Mid Essex admitted Mr Y and later discharged him in January 2015. Mid Essex readmitted Mr Y in February with the same issue and he remained there until September. During that period, Royal Orthopaedic agreed to carry out a two-stage revision, but Mr Y’s skin needed to settle.
- In September 2015, Mid Essex discharged Mr Y to a care home called Valentine House. Mr Y remained at Valentine House for nearly two years. This was initially an interim placement for six weeks, free of charge, while Mr Y waited for surgery. The Council then made Mr Y a temporary resident in November 2015. The Council completed a financial assessment of Mr Y, which included the following: “I confirm that I have fully explained the Essex County Council’s charging policies and that the customer is aware that they may be liable to pay a contribution towards the cost of their services”. The Council then made Mr Y a permanent resident in January 2017 because he did not want to return home.
- There were delays in having the two-stage revision surgery, due to Mr Y’s health problems and other illnesses. Also, there were delays completing dermatology and cardiac reviews, and a specialist MRI scan at Mid Essex.
- In February 2017, Mr Y stopped paying for his care at Valentine House, as his savings fell below the capital threshold. In June, the Council explained that his savings were never considered towards the payment of his care, that it had only used his pensions and superannuation to calculate what he should pay and therefore he should continue to pay his care home fees.
- In August 2017, Mr Y had the first stage of the two-stage revision. He later had the second stage in September 2017. After the surgeries, Royal Orthopaedic noted Mr Y did not have any rehabilitation potential. In October, it discharged him to a different care home called Park View.
- Royal Orthopaedic considered a Girdlestone procedure in April 2018, but decided against this. Instead it recommended physiotherapy to help improve Mr Y’s limited mobility.
- Mr Y’s MP raised a complaint with the Council in July 2016. The Council decided to carry out a joint investigation with Mid Essex.
- Mid Essex completed the investigation report on 29 November 2016, which said:
- Mr Y needed specialist surgery which Mid Essex could not carry out
- Valentine House was the best option for Mr Y as an interim placement, so his care needs could be managed while waiting for surgery.
- It understood he would have the surgery within the six weeks period
- There were delays once he needed further tests before surgery due to his multiple illnesses. However, this was not their responsibility.
- It was sorry for the delay in responding to his complaint. This was due to delays by Mid Essex and staff absence due to illness.
- The interim placement at Valentine House was the best option for Mr Y.
- In October 2015, Mr Y agreed for his care to become chargeable.
- In November 2016 Mr Y told the Council he did not want to return home, so his care has remained chargeable.
- It also attached Mid Essex’s investigation findings separately
- Mr X had not been present at Mr Y’s consultations, so would not be aware of his multiple illnesses. These have caused the delay for his surgery, not its own actions.
- Mid Essex delayed addressing Mr X’s medical concerns between November 2016 and March 2017
Mid Essex prematurely discharged Mr Y in September 2015
- When Mid Essex discharged Mr Y, his skin was in a good condition to make it a safe discharge. He had chronic issues with his skin and ulcers, and these could have been managed in the community with help from district nurses.
- The tissue viability nurse’s treatment included:
- Daily washing of both legs with a mixture of water and an anti-bacterial emollient to soften and smooth Mr Y’s inflamed, and shedding skin.
- Using special dressings on Mr Y’s wound on his big toe on the right foot, and for a deep ulcer on his left heel, to cleans and treats them.
- Taken reasonable steps to assess Mr Y for CHC before giving notice of Mr Y’s case to the Council; or
- Provided interim services until it assessed Mr Y’s eligibility for CHC
Mid Essex and Royal Orthopaedic jointly took two years to operate on Mr Y’s hip after September 2015
- In September 2015, the Council and Mid Essex were under the impression Mr Y’s surgery would be on 12 October 2015. However, this was not the case. That was a pre-surgery review with the surgeon at Royal Orthopaedic, not a date for surgery. As we know, surgery was later arranged for 30 November 2015.
- After the anaesthetist required Mr Y’s GP to urgently refer Mr Y to Mid Essex for potential cardiac issues, Mid Essex took two months to complete the cardiac investigations. Mr Y’s GP made a routine referral to Mid Essex (which it received on 10 December). However, the referral should have been urgent, rather than routine. This explains why it took Mid Essex seven weeks before a cardiologist reviewed Mr Y. This is in line with the maximum waiting time for routine NHS referrals (18 weeks). If the GP had urgently referred Mr Y, he would have most likely been seen within two weeks of 10 December. I cannot attribute this fault to Mid Essex. It was the GP’s incorrect referral which caused the delay, and they are not subject to this investigation.
- The cardiologist confirmed the results of the consultation in a letter sent back to the GP. Therefore, any further delay in Royal Orthopaedic receiving the results was again the fault of the GP. Therefore, I will not take any further action.
- In March 2016, the Royal Orthopaedic surgeon told Mr Y he asked Mr Y to obtain dermatology input in October 2015. This is not reflected in the consultation letter, and I have not seen any other evidence this was the case. I see on 6 July the surgeon noted he would like an “update from dermatologists” before proceeding with surgery. However, this was completed before 31 July.
- I am not satisfied the surgeon made his second request for dermatology input clear to Mr Y, his GP or Mid Essex. I consider this was fault. I will consider the impact of this fault on Mr Y later in the decision statement.
- Between June and August 2016 Mr Y was waiting to be seen by the surgeon at Royal Orthopaedic, to make sure he was fit for surgery. He was seen on 15 August and the surgeon was satisfied he was fit to have the surgery, pending no issues in his pre-operative assessment.
- It was later discovered that Mr Y was suffering with jaundice. I agree with Royal Orthopaedics’ decision to put surgery on hold until he had recovered. However, I have found evidence of other unnecessary delays caused by Mid Essex.
- On 25 November 2016, the gastroenterologist ordered an urgent MRI scan, which should have been completed within two weeks. Instead it took nearly 10 weeks. Mid Essex said this was due losing the paper referral. This was fault. I will consider the impact of this fault later in the decision statement.
- Between March 2017 and July, Mr Y was suffering with cellulitis. I agree with the anaesthetist’s and the surgeon’s decision that this needed to clear before they could perform the surgery. I do not consider this delay was fault. Once Mr Y had recovered, the surgeon carried out the two-stage revision of his hip in August and September.
- Because of the fault identified above, Mr Y suffered frustration at having to wait longer than expected for a dermatology review and the MRI scan. However, the fault did not mean the surgery would have been completed sooner.
- I have not seen any evidence that Royal Orthopaedic or Mid Essex has recognised the fault during its own investigations or remedied the injustice that Mr Y suffered.
- Mid Essex has explained it no longer uses paper referrals. Instead, referrals are all managed electronically, so they should not get lost in the system the same way as happened in Mr Y’s case. I am satisfied that similar fault will not happen to others in future.
- Both organisations still need to remedy the injustice to Mr Y. I have made recommendations later in the statement to address this.
The decision to carry out the two-stage revision
- I consider Royal Orthopaedics’ decision to proceed with the two-stage revision, without properly considering whether the Girdlestone procedure was more appropriate, and discussing this with Mr Y, was fault. I will explain why.
- In July 2015, Royal Orthopaedic recognised Mr Y was an extremely high surgical risk due to his illnesses. It correctly identified that further assessment was required. I also consider that Mr Y was properly involved in the treatment plan. He said that he was “desperately keen” to have the reconstruction (two-stage revision) of his hip.
- After July 2015, Mr Y suffered significant medical and anaesthetic concerns. I have not seen any evidence that Royal Orthopaedic discussed these concerns with Mr Y in relation to the treatment plan. I consider these factors warranted a robust discussion with Mr Y about the Girdlestone procedure in June 2016. This would ensure Mr Y was aware of the alternative procedures and could provide formal and fully informed consent to his treatment plan.
- Also, I have not seen any evidence Royal Orthopaedic documented Mr Y’s rehabilitation potential during the June 2016 consultation.
- The two-stage revision can provide a better functional outcome than the Girdlestone, in the long-term. However, the Girdlestone has a much‑reduced surgical programme.
- I asked Mr Y, if he was given the option to provide formal consent for the two‑stage revision or the Girdlestone procedure, which option would he have chosen. Mr Y said he would have chosen the option which would have given him the best option for better mobility. Therefore, I consider on the balance of probabilities, Mr Y would have chosen the two-stage revision over the Girdlestone procedure. Therefore, there is no injustice to Mr Y.
The Council did not provide information about charges
- Mr X is unhappy that no one provided his uncle with information about charging when he was discharged from Mid Essex to Valentine House.
- I have not seen evidence the Council provided charging information to Mr X or Mr Y when Mid Essex discharged Mr Y to Valentine House.
- However, I do not consider this was fault. I am satisfied that all parties were aware that Mr Y’s care at Valentine House was free for six weeks, and not chargeable until 30 October 2015.
- When the Council made a financial assessment referral for Mr Y (5 November 2015), it clearly explained the charging policy to him. The Council’s records state: “I confirm that I have fully explained the Essex County Council’s charging policies and that they are aware they may be liable to pay a contribution towards the cost of their services”.
- Mr X was concerned that the Council depleted his uncle’s savings to pay for monthly care costs at Valentine House.
- The Council did not use Mr Y’s savings towards the costs of his care. In October 2015, Mr Y’s savings totalled £14,143.52. This is lower than the lower ‘capital’ limit, which is £14,250. Therefore, the Council disregarded Mr Y’s savings as part of his overall capital. Mr Y’s contribution to his care costs consisted of two retirement pensions and superannuation. This was made clear on the monthly statements the Council sent to Mr Y. These would be considered as Mr Y’s ‘income’ and were rightfully used to pay for his contribution to the care costs.
- Overall, I do not consider the Council’s explanation of charges, or how it charged Mr Y amounted to fault.
- The Council took the lead in the joint investigation with Mid Essex. An Operational Team Manager agreed to lead the investigation.
- Mid Essex initially set themselves a deadline of 22 September. If it had provided its response to the Council by this date, then I would consider this would have been within a timely manner.
- Mid Essex continually extended the deadline to respond to the Council, until it provided its response on 1 December 2016. Mid Essex said the delays were due to the complex nature of this case and delays in obtaining information needed for the investigation.
- While I agree that elements of Mr Y care were complex, the issues Mr X was complaining about were relatively simple:
- Was the discharge in September 2015 the right choice?
- Who referred Mr Y to Royal Orthopaedic?
- Why couldn’t surgery be completed at Mid Essex?
- Why had the surgery been cancelled so many times?
- Was CHC considered?
- Who was responsible for Mr Y’s care?
- I recommend that within four weeks of the final decision, Royal Orthopaedic acknowledges it did not make clear to all parties that Mr Y needed a dermatology review in October 2015, and apologises for the frustration caused to Mr Y.
- I recommend that within four weeks of the final decision, Mid Essex:
- Acknowledges its handling of Mr Y’s urgent MRI referral, and its complaint handling was poor, apologises for the frustration caused to Mr Y;
- Pay £125 to Mr Y in recognition of how its complaint handling caused Mr Y further distress
- Pay £100 to Mr X in recognition of time and trouble
- Acknowledges its complaint handling was poor, and apologises for the frustration caused to Mr Y;
- Pay £125 to Mr Y in recognition of how its complaint handling caused Mr Y further distress
- Pay £100 to Mr X in recognition of time and trouble
- I have found evidence that fault by Mid Essex and Royal Orthopaedic caused Mr Y unnecessary frustration while waiting for surgery.
- Royal Orthopaedics’ decision to carry out the two-stage revision without robustly considering the Girdlestone procedure, and discussing this with Mr Y was fault. However, Mr Y would have more likely than not opted to have the two-stage revision, as it provided the better chance of increased mobility.
- I do not consider the Council’s explanation of charges, or how it charged Mr Y amounted to fault.
- I consider that Mid Essex and the Council’s joint investigation took unnecessarily long, which compounded the distress that Mr Y suffered. Also, Mr X suffered time and trouble making the complaint on Mr Y’s behalf. However, I did not find any fault in Royal Orthopaedics’ investigation in to Mr Y’s complaint.
Investigator's decision on behalf of the Ombudsman