The Ombudsman's final decision:
Summary: Mr D complained about the community physiotherapy provided to his late mother by the Trust. He said the Council did not act on reports he made about a homecare agency it commissioned to provide care. Mr D claimed this had a significant impact on his mother’s physical progress and caused him avoidable distress. The Ombudsmen found that the Trust provided an adequate physiotherapy service but failed to keep good records and monitor the care arrangements in place. The Council acted on reports Mr D made but recorded incorrect information about him. It also failed to ensure the homecare agency acted in accordance with the care plan. The Trust and the Council have agreed to the Ombudsmen’s recommendations to apologise in writing to Mr D, review guidelines relating to record keeping and each pay Mr D a financial remedy to acknowledge the avoidable distress and uncertainty he experienced.
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, 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)).
- 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.
- 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:
- information provided by Mr D;
- information provided by the authorities complained about;
- the law and guidance relevant to this complaint;
- clinical advice obtained from a consultant physiotherapist (our clinical advisor); and
- all parties have had an opportunity to respond to a previous draft of this decision and this draft decision.
What I found
- Reablement is a community based short-term service offered by councils which offers intensive support in the person’s home. Reablement helps individuals regain skills, confidence, and independence around their daily living skills, community access, and integration. Reablement service users have a social care need and support services are usually provided for up to six weeks. If a council arranges Reablement in the person’s own home, councils have discretion whether to charge. If necessary, the initial Reablement period after discharge from hospital can be used to ensure that an assessment is completed and any further services are arranged.
- The Social Care Institute for Excellence’ (SCIE) guide called ‘Maximising the Potential of Reablement’ says “Occupational and physiotherapists play a fundamental role in goal-setting. They should either be deployed to carry out this task or train reablement workers to carry it out themselves… Where appropriate, the individual’s family and friends should also be involved in goal-setting. Any conflicting or opposing views about suitable goals must be negotiated sensitively and with professional judgement.
Those referring to and providing reablement must be sensitive to concerns that families may have about the ‘risks’ of this approach. They will need reassurance that their relative is being looked after despite being encouraged to do things independently. At the outset, there should be a frank and sensitive discussion about balancing risk and building independence and this should be reiterated throughout the duration of the service.
If a person is assessed as having ongoing support needs at the end of reablement, it is crucial that subsequent services continue to provide support in a way that maintains the progress that person had made. The implication of this is that independent sector providers of home care need to adapt their own service to support the aims of reablement.”
- The Nursing and Midwifery Council (NMC) issued The Code in 2009. This sets out standards of conduct, performance and ethics for nurses and midwives. It says clear and accurate records should be kept of discussions, assessments, treatment and medicines given, along with how effective these have been.
- The Independent Living Team (ILT) consists of Council and Trust staff integrated into a single team. The team includes a social worker, an occupational therapist, a physiotherapist, care workers and support workers. The team offers a reablement service and aims to help users of the service regain their independence.
- Agency X works with older people and provides home from hospital rehabilitation and reablement in the home or in one of its care homes. Agency X also provides home care which includes personal care and help with medication and domestic tasks.
- 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 organisation must make. Therefore, my investigation has focused on the way the Council and the Trust made decisions.
- Mrs B went into hospital in November 2012 after fracturing her right femur (thigh bone). She had surgery and stayed in hospital until mid-December 2012. She was discharged from hospital but after a few days she was readmitted after her condition deteriorated. She was then discharged from hospital to Mr D’s home in February 2013.
- The ILT arranged and commissioned Agency X to provide care and support to Mrs B at home as a part of a reablement care package. The care package consisted of four support calls daily. Mrs B was discharged from hospital under the care of the Trust’s physiotherapy community services as this formed part of the programme of reablement.
- In April 2013 Mrs B went to stay in a nursing home following further discussion with professionals involved in her care and Mr D. Mr D said Mrs B’s condition had deteriorated during her previous hospital stay. She also had infections which affected her health. The Trust’s ILT continued to visit Mrs B while she was in the nursing home.
- Mrs B returned to live with Mr D in July 2013. Agency X continued to provide support daily and physiotherapy continued as part of reablement. Between August and September Mr D raised concerns to the ILT about the care his mother was receiving from Agency X.
- At the end of September, the ILT’s involvement stopped and the Council’s community adult social care team started to manage the care package. Agency X continued to provide the care and support commissioned by the Council.
- Between September and March 2014 Mr D raised concerns to the Council about the quality of care and communication with Agency X.
- In March Agency X terminated the contract it had to provide care and support to Mrs B. The Council said this was because of deterioration in the relationship between Agency X and Mr D and his dissatisfaction with the service. Mr D said he was shocked when Agency X withdrew the service as nothing had changed in the relationship he or Mrs B had with the care provider.
- A new care agency started providing support in March 2014. Mr D said he was happier with this care agency and the communication from the new care agency was better.
- Mr D said he contacted the Council and Agency X to try and establish facts about what had happened previously with the care package. He said he complained to the Council about its failure. Mr D also complained to the Trust about what he felt was a lack of physiotherapy. Mr D felt the Trust failed to provide adequate physiotherapy to help his mother regain her independence. He said this led to
Mrs B having a feeling of ‘giving up’.
- Mr D said his mother’s general wellbeing had deteriorated because of inadequate care, support and help with mobility/physiotherapy. Mrs B died in November 2014.
Care and supported provided by the Council and the Trust - physiotherapy
- Mrs B was discharged from hospital in February 2013 to the care of Mr D and it is evident he took an active role as his mother’s informal carer. He communicated with the professionals involved when he had concerns about the quality of care provided. There is a noted difference between the standard of care Mr D expected and the standard of care provided. This is not unusual when family members want to ensure relatives receive the best care they think possible.
- The ILT’s role was to provide short-term support at home to promote Mrs B’s independence. Mr D said the ILT did not do enough to support his mother or provide a quality physiotherapy service. He felt the quality of the physiotherapy service provided was inadequate.
- Mrs B was not receiving a standalone physiotherapy service but received reablement which included physiotherapy. The ILT’s physiotherapists and occupational therapists had an active role to deliver part of the reablement service. But paid homecare workers and informal carers would have been expected to contribute to the success of the reablement care and support package.
- There is documentary evidence to show a written plan was put in place as part of discharge planning/reablement to show Mrs B’s physiotherapy programme. However, there are faults in the way the ILT completed documentation. The ILT completed a moving and handling assessment and a document called ‘Adult Rehabilitation Services Patient Goal and Treatment Plan’ dated February 2013. This relates to Mrs B’s goal planning on discharge.
- The document only lists one goal relating to Mrs B’s transfers using a hoist. The document itself is not on headed paper and the date for review and target date are blank. One section of the form states Mrs B is to “work with the POC and therapists to improve”. It is likely that ‘POC’ refers to ‘package of care’ and I have not seen evidence to show Mrs B or Mr D were given a copy of the form. This is an example of poor record keeping and sharing of information.
- There are examples of joint visits by the occupational therapist and the physiotherapist up until the date Mrs B went into the nursing home in April 2013. Therapists visited Mrs B weekly so she could practice transfers with a frame. The notes refer to “help with transfers”. This shows the ILT contributed to the reablement care package.
- Documentary evidence suggests at that time Mrs B felt that therapists were pushing her too hard and the notes refer to her being tired on occasions. This is likely to have impacted on her willingness and ability to complete exercises at times. Mr D told the OT he was willing to take his mother to hospital for physio because he was concerned about her lack of mobility. Mrs B was receiving a community service as part of a reablement package so it is clear why community physiotherapy continued.
- When Mrs B went into short term respite in mid-April the ILT agreed a total of 12 weeks short-term placement. The evidence available suggests she was confused and had reduced coordination. The ILT continued to visit Mrs B when she was in the nursing home. The records show further illustrations of poor record keeping by the ILT while Mrs B was in the nursing home. For example, when discussing concerns with Mr D on the telephone the physiotherapist referred to a “robust rehab plan in place”. However, there is no documentary evidence to show what this plan looked like and how long it would be in place for. There is also reference to a daily exercise routine being issued by the physiotherapist at an out-patients appointment but the Trust has not provided a copy of this.
- However, the ILT provided information to the carers about what they should do to help her with transfer to walking frame and daily exercises. The records describe what exercises therapists completed with Mrs B while she was in the nursing home. These include transfers, seated exercises, knee straightening exercises and sit to stand exercises. The therapists showed the care staff how to complete the exercises and observed a care worker helping Mrs B to complete exercises.
- The ILT also prompted Mrs B with walking and the notes refer to the distance walked, for example, “5 metres followed by a further 8 metres walk after resting”. Except for the poor record keeping the evidence available strongly suggests the ILT provided an adequate physiotherapy service to Mrs B while she was in the nursing home.
- Mrs B contracted shingles in June 2013 and had recurrent urinary tract infections (UTI). The notes state that the UTIs impacted on Mrs B’s mobility. The ILT wanted to refer to Mrs B’s GP for long-term antibiotics to support her discharge home. Our clinical advisor felt these factors would most likely have also impacted on
Mrs B’s overall mobility.
- A physiotherapist went to see Mrs B at the nursing home a few days before she returned home to live with Mr D. The care home staff reported that she was transferring consistently to the walking frame without the patient turning equipment. The physiotherapist noted what Mrs B could achieve and arranged to visit her again once she was discharged home.
- Once Mrs B returned to live with Mr D, homecare and physiotherapy continued as part of the ongoing reablement care package. In early August when therapists went to visit Mrs B they noted “fatigue is an issue but can navigate to use the wheeled frame.” Agency X’s notes show that carers helped Mrs B to use the turning equipment/frame when using the commode.
- The ILT recorded Mrs B should have walking practice daily, on the evening visit, when two carers were present. Agency X’s daily homecare records do not provide sufficient evidence to show carers consistently recorded when they prompted
Mrs B with walking practice. As a result, we cannot know whether carers prompted her to complete the walking practice in line with the ILT’s programme of exercise. The ILT should have had sufficient monitoring in place to check how often Mrs B completed the daily exercises. It does not appear to have done so which is fault.
- Following a review of the social care package which involved Mr D the ILT reduced Mrs B’s care package. A reduction in care package can sometimes be used as a measurement of success when reviewing reablement outcomes.
- The ILT ended its involvement with Mrs B in October and discharged her from the service. The lack of sufficient recording and sharing of information may have contributed to Mr D’s negative view about the physiotherapy his mother received. However, there is not enough evidence to find that the service provided by the ILT was inadequate.
The Trust’s decision to discharge Mrs B from the ILT
- The documents provided include an ‘ILT Evaluation Sheet’ dated
30 September 2013. In the additional comment box the following is recorded about Mrs B “no further rehab potential for transfer to complex care team for review. D.P. Process cancelled. Review in 3 months please.” It is unclear whether the complex care team was part of the Trust, the Council or an integrated team. However, the Council took over the care package from the end of September 2013 so it is likely to be the Council.
- A physiotherapist went to visit Mrs B at home on 10 October 2013. Following this visit the ILT again noted “no further ILT input required”. The physiotherapist wrote to Agency X on 31 October and said Mrs B would “benefit from mobilising with her zimmer frame with assistance of 2 carers… would also benefit from a carer running through [Mrs B’s] seated exercises given by the ILT on a daily basis.
[Mrs B] has a copy of these exercises.” The letter said the exercises should be completed daily subject to Mrs B’s health and feelings of fatigue.
- Mrs B had reached her potential for rehabilitation and therefore the ILT could not achieve any more than it had done. A programme of reablement usually last for about six weeks but in Mrs B’s case the programme was extended. There is no evidence to show the discharge from the ILT was inappropriate and the ILT extended its involvement with Mrs B by two weeks “for further health improvement” and then recorded “no further rehab potential”. The Council took over the care package so therefore Mrs B was not left without care and support arrangements in place.
Referral to physiotherapy
- Mr D said the Trust did not tell him about how to arrange physiotherapy at home once his mother was discharged from the ILT. The Trust accepted it did not do this and apologised to Mr D. The Trust should have ensured it provided better information to Mr D. It is not necessary to make any further recommendations on this point.
The care commissioned by the Council
- When the ILT involvement ended the evidence available supports the view carers should have continued to verbally prompt Mrs B to complete the daily exercise left by the ILT. The ILT had also written to Agency X with advice.
- In response to the Ombudsmen’s enquiries Agency X confirmed it had received the letter from the physiotherapist dated October 2013.
- Agency X said the letter from the ILT which referred prompting Mrs B to complete daily exercises was not transferred to Mrs B’s care plan and as such did not form part of her agreed care package. Agency X also said the physiotherapist “was not the person/organisation commissioning Mrs B’s ongoing care package, and we believe that this was not transferred as a task because it had not been agreed that this was part of [Agency X’s] care package.”
- Agency X was not commissioned to provide any physiotherapy services. The carers working with Mrs B were not qualified to provide physiotherapy services. Carers were there to provide support with personal care, medication dressing, transfers, meals and assistance to bed. It is wrong for Agency X to suggest that because of commissioning arrangements it did not act on the letter received by the physiotherapist. It was crucial for Agency X to provide the ongoing recommendations from the ILT to help maintain Mrs B’s progress.
- There is evidence to show the Council’s social worker wrote an email to Agency X in November 2013 which said “[Agency X] have agreed that at the visits where two carers are present (morning and teatime) care staff can encourage [Mrs B] to walk a bit further… the care plan currently covers this”. This contradicts what Agency X said in response to the Ombudsman. It is likely that the care provider was aware its carers needed to prompt Mrs B to complete daily exercises.
- Agency X could not provide copies of the daily records carers completed at each support call visit with Mrs B. Agency X said it destroyed the documents in line with its document retention policy. There is no fault in this decision. In any case, Mr D provided the Ombudsmen with copies of some of the daily records up to December 2013 which have been considered during this investigation.
- The daily records show carers noted when they helped Mrs B out of bed, when they helped her with personal care and helped her with dressing. Some of the entries refer to carers helping Mrs B walk using her walking frame but this is not recorded daily. There is little evidence recorded in the notes between November and December 2013 to show carers asked Mrs B whether she wanted to complete the seated exercises the physiotherapist said should continue. This is fault by the Council and Agency X.
- There is no documentary evidence to show how Agency X consistently gave
Mrs B verbal prompts to complete the physiotherapy exercises between January and March 2014 due to the unavailability of the daily records.
- Mr D felt the lack of exercise had a significant impact on his mother mobility and general health. The exercises were given to help maintain Mrs B’s strength and mobility so it is understandable why Mr D takes this view. Our clinical advisor said “the frail and elderly population commonly experience a loss of muscle mass because of inactivity. But there are also other factors which contribute such as the effects of ageing and underlying diseases.” Good recording in the care records to show when carers verbally prompted Mrs B would have helped to establish the frequency of exercise, refusals or when she could not complete the exercises.
- Mrs B was sometimes fatigued, unwilling or unable to complete exercises even when prompted. I cannot say whether she would have always completed the exercises if verbal prompts were given and recorded. Therefore, I cannot say what impact any lack of prompting would have had on Mrs B’s mobility or general health or whether she would have completed the exercises even if prompted. It is likely that Mr D is left with uncertainty about whether the lack of evidence to show verbal prompting by carers contributed to decline in his mother’s mobility and general health.
Communication about Mrs B’s placement in the Nursing Home and video recording
- Mr D says the Council lied to him when he was told his mother needed to go into a home. The evidence available strongly suggests Mrs B had other health conditions which contributed to the decision to arrange short term residential care. Mrs B had the mental capacity to contribute to the decision at the time and there is no evidence to show she refused the placement.
- Mr D also complained his mother did not have to go into the nursing home and could have received physiotherapy at home. There is no evidence to suggest
Mrs B went into the nursing home solely to receive physiotherapy. There were other factors such as her recurrent UTIs and overall ability to manage at home which contributed to this decision. The records suggest Mr D was involved in the discussion to place his mother in the home and I can find no evidence within the records to suggest officers fabricated lies. Therefore, I do not find the Council at fault.
- Mr D also referred to the Council telling him he could not video or record officers during visits at his home. An officer wrote to Mr D in June 2014 and said, “please do not video or audio record my interview with you and your mother as my managers are very clear this is inappropriate”.
- Mr D replied to the letter and said, “I fail to see the problem with audio and video recording as it protects everyone, unless of course [Council] staff have something they wish to hide or some hidden agenda.” Mr D’s letter suggests he had lost faith in the Council by this point and it is likely he felt the Council’s view of him was negative. Mr D wanted to protect himself and others.
- Mr D could have chosen to record the meeting covertly without mentioning anything to the Council but he decided to be open about his actions. Therefore, I do not find Mr D acted inappropriately. It is possible the officer felt recording the interview would affect their rights but I cannot say why the officer told Mr D not to record the meeting or to what extent the Council considered it inappropriate. However, the Council’s officer was entitled not to proceed with a meeting if they did not want to be recorded. Therefore, no worthwhile outcome can be achieved by considering this point further.
How the Council dealt with Mr D’s concerns about Agency X
- During the time Mrs B received a service from Agency X, Mr D raised issues about the timing of visits and the conduct of carers, for example, carers not reading the care plan. On one occasion Agency X sent a letter of apology to Mr D relating to a missed support call. Mr D was passionate about his mother’s care and support arrangements and this meant he had regular contact with the Council when he had concerns. On balance, it is likely Mr D’s concerns were justifiable.
- In response, the Council met with Mr D to discuss his concerns and communicated with Agency X. When Agency X gave notice to end support the Council commissioned a different care agency to provide care to Mrs B.
- Mr D also complained to the Council about information it had recorded about him without his knowledge. Mr D did not find out about this information until after he had made a subject access request. When responding to the Ombudsmen the Council accepted it could have dealt with the matter differently. It said, “in hindsight it is agreed it would have been better to talk to [Mr D] at the time”. Because the Council did not do this Mr D lost the opportunity to challenge or respond to information which may have given staff a negative view about him. It is likely Mr D experienced avoidable distress because of the Council’s actions.
- The Council also said it would make the following improvements:
- attach an addendum to its files to correct entries recorded about Mr D. Also, an addendum to state Mr D denies any allegations made about him. If necessary the Council will allow Mr D to provide information he wants to be included in the addendum;
- ensure that all staff review its guidelines on the recording of personal information so they are aware of their responsibility to record accurate information;
- ensure staff review its guidelines on when it is appropriate to challenge allegations and include a review of wording used to record allegations;
- send Mr D a letter to apologise for the impact that reading the record had on him;
- review its safeguarding processes in line with the Care Act 2014;
- The Council and the Trust have agreed to the Ombudsmen recommendations to take the following action within two months of the final decision:
- the Trust will review the findings of this complaint with the ILT reminding team members of the importance of keeping accurate records about patients’ care and treatment relating to physiotherapy; and
- the Trust will write to Mr D and apologise for the uncertainty caused by the lack of monitoring and poor recording keeping by the ILT.
- the Council will complete the improvements set out in its response to the Ombudsmen (paragraph 61). It will provide the Ombudsmen with evidence to show actions have been completed. The Ombudsmen will then inform Mr D;
- the Council will write a joint letter with Agency X to apologise for the uncertainty Mr D experienced because of the failure of Agency X to record when it verbally prompted Mrs B to complete exercises;
- if it has not already done so the Council will apologise in writing for not allowing Mr D the opportunity to challenge information it held about him in its records. The letter will acknowledge the avoidable distress Mr D experienced; and
- the Council will pay Mr D £250 and the Trust will pay Mr D £200 in recognition of the distress and uncertainty he experienced because of the lack of good recording.
- The Council and the Trust have agreed to the Ombudsmen’s recommendations. For the reasons set out in the findings section of this statement I have completed the investigation.
Investigator's decision on behalf of the Ombudsman