The Ombudsman's final decision:
Summary: Mrs F has complained about a Trust and Council in relation to a child protection case involving her niece, Miss G’s child. I found fault with the Trust in obtaining an x-ray report from an unsuitably qualified radiologist. However, this fault did not lead to the injustice Mrs F has claimed and the Trust is making service improvements. In addition, I do not find fault with the Council’s actions.
- Mrs F complains about the treatment of her niece, Miss G’s child, H, at Warrington & Halton Hospitals NHS Foundation Trust (the Trust). Mrs F says doctors misdiagnosed a fracture of H’s leg and she is unhappy the Trust did not refer to paediatric radiology specialists at Alder Hey Hospital (Alder Hey) before starting child protection procedures. Mrs F says the courts later ordered medical reports which confirmed the Trust’s misdiagnosis.
- Mrs F also says Cheshire West & Chester Council (the Council) removed H from the family due to the incorrect diagnosis. Mrs F says her niece and her family have suffered distress and they are concerned H may have long term attachment issues.
- Mrs F complains the Council’s actions after receiving a referral were disproportionate. She says her niece never had any previous involvement with social services and the Council should never have removed H from the family.
- In addition, Mrs F complains the Council did not offer her niece the option of legal advice before signing section 20 of the Children Act papers.
- Mrs F said the Council did not make enquiries to the child’s health visitor or GP before taking the actions it did. In addition, the Council did not properly document matters and too much communication was done over the phone leading to confusion.
- As a result of the complaint Mrs F would like an apology from the Trust, and a systematic review of its paediatric department and child protection procedures.
- Mrs F also wants improvements in the Council’s service so that no other family suffers what her family has.
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 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 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)
- The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)
- The events complained about in this case go back to July 2019. Mrs F raised her complaint with the Ombudsmen in February 2021 and so the case is outside our time limit. However, Mrs F originally complained to the Parliamentary and Health Service Ombudsman in March 2020 and so was in time. We sent the case back to the Council in December 2020 to get a response which it provided in February 2021 and Mrs F then promptly came back to us that same month. For these reasons we have set aside the time limit as Mrs F was pursuing local resolution of her complaint and there was no unnecessary delay on her part.
How I considered this complaint
- To investigate this complaint, I considered evidence from Mrs F, the Council and the Trust. I also took advice from an independent clinical adviser.
- I considered Mrs F’s comments on my draft decision before making this final decision.
What I found
- Anyone who is concerned a child is suffering or at risk of harm should inform the Council. Health bodies should be alert to the possibility that children may be at risk of harm and refer their concerns to the local authority for assessment.
- Under section 47 of the Children Act 1989, councils have a duty to investigate if there is reasonable cause to suspect that a child in their area is suffering, or is likely to suffer, significant harm. They must decide whether they should take any action to safeguard or promote the child's welfare. This may involve an initial assessment and a 'core' assessment (a more in-depth assessment).
- Assessments are intended, for example, to analyse a child's needs and the risk of harm to the child. Councils may also convene a Child Protection Conference. The Conference will decide whether any action is necessary to protect the child from harm.
- Under Section 20 of the Children Act 1989, a child or young person may be accommodated by the local authority where there is agreement to this arrangement by those with parental responsibility. The child becomes looked after under a Section 20 arrangement but is not in care.
- In July 2019, H was nine months old and suffering a pain in their leg. Miss G took them to hospital and staff carried out an x-ray which found an injury to H’s left tibia (shinbone). The Trust had concerns and contacted the Council who started a s.47 safeguarding enquiry.
- In July 2019 the Council decided to place H with extended family members while it investigated the concerns. The courts returned H to their parents in January 2020 after deciding it was safe for H to return.
- Mrs F complained to the Trust in January 2020 and followed the complaint process as outlined above before returning to us in February 2021.
- Mrs F said the Trust wrongly diagnosed a Salter Harris Type 2 fracture. A Salter Harris fracture is an injury to the growth plate area of a child’s bone. The growth plate is a soft area of cartilage at the ends of long bones that turns to bone as a child grows older. Mrs F said two later court appointed doctors’ reports contradicted the Trust’s assessment of the injury. Mrs F also took issue with the Trust’s conclusion the injury could only have been caused by force.
- Mrs F said that this misdiagnosis would not have occurred if the Trust had sought the advice of a paediatric radiologist at Alder Hey which specialises in care and treatment of children. She said the two court appointed doctors’ reports both recommended this action. She also pointed out that one of these doctors (Doctor A) said the injury was an “incomplete fracture, a so called greenstick fracture” and that there was insufficient evidence it would extend into the growth plate.
- The Trust said H had a Salter Harris Type 2 fracture and the x-ray images were not deemed inconclusive by any of the clinicians who reviewed them. Following receipt of the complaint the Trust asked a consultant paediatric radiologist (the Consultant) at Alder Hey to review the images. The Consultant agreed the injury was a Salter Harris Type 2 fracture and also said that only injury images on which clinicians disagreed should be sent to Alder Hey.
- In response to our enquiries, the Trust said although Doctor A said it could be a greenstick fracture, Doctor A also said the treatment and management of both types of fractures would be the same.
- The Trust said that given the nature of both injuries was the same, it is unlikely, even if there had been the error of diagnosis Mrs F claimed, this would have affected the outcome due to the likelihood it was an injury caused by force. It said the decision to remove a child is not made on radiology alone. The Trust concluded by saying this was an injury in a non-mobile child that required significant force and was not reasonably explained.
- The relevant guidance in this matter is Radiological Investigation of Suspected Physical Abuse in Children (revised November 2018). This guidance states:
'two radiologists with at least six months of specialist paediatric radiology training including experience of suspected physical abuse in children, should provide a consensus report within 24 hours.'
- In this case, the x-rays were not looked at by two radiologists with six months of paediatric radiology training. This was a fault on the part of the Trust.
- However, the action taken by the Trust would have been the same whether the injury was a Salter Harris Type 2 fracture or a greenstick fracture and our independent clinical adviser agreed with this course of action. Therefore, although there was a fault in the Trust not obtaining suitably qualified radiologists, this did not alter the outcome of the case as the Trust took appropriate action.
- Furthermore, the Trust commissioned a suitably qualified radiologist at Alder Hey and they agreed with the Trust’s actions. In addition, the Trust has confirmed to the Ombudsmen it now has three suitably qualified paediatric radiologists and is working towards bringing its practice in line with the guidelines above. For these reasons I do not propose any further action from the Trust on this aspect of the complaint.
Removal of H
- The Council held a strategy meeting attended by the Police, health and social care staff who all contributed to the discussion. Information from the health visitor and GP was discussed at the meeting. The meeting decided to carry out a police investigation and assess family members for suitability for caring for H if necessary. I have not found any fault with the way the Council carried out this meeting and there is evidence the health visitor and GP provided information.
- The Council carried out an assessment of H in August 2019. This assessment involved interviews with H's parents and family members as well as information from the police and medical records. The Council decided, due to the unexplained nature of the injury, to continue care proceedings. As I have not found any fault with how the Council carried out its s.47 investigation, I do not find fault with its decision to continue care proceedings
- In addition, I have seen evidence that the Council advised Miss G of her right to legal advice before signing the s.20 papers and so I have not found fault with this aspect of the complaint.
- Regarding communication, the Council has told the Ombudsmen it prefers verbal communication with families to enable and support building relationships, developing trust and to support open and transparent discussions.
- The Council felt in this case there was a balance of telephone calls, face to face visits and correspondence. It said in the early stages of this investigation a high number of telephone calls were made to professionals and the family to seek basic information to identify a family member who it could assess as being able to care for H.
- I accept this explanation because of the need in the early stages of the case to speak urgently to the relevant people involved and family members over the phone and in person rather than in writing. In addition, I have not seen evidence the Council failed to communicate in writing when necessary.
- I found fault with the Trust in not having two suitably experienced radiologists looking at H’s x-rays. However, this did not lead to the injustice Mrs F has claimed and the Trust are carrying out service improvements. Furthermore, I do not find fault with the Council’s actions.
Investigator's decision on behalf of the Ombudsman