Hastings & Rother Clinical Commissioning Group (16 017 727a)

Category : Health > Other

Decision : Upheld

Decision date : 04 Dec 2018

The Ombudsman's final decision:

Summary: Ms X complains the Council and CCG’s moving and handling assessment resulted in her daughter’s care package breaking down. The Ombudsmen do not consider there is fault as the assessment was carried out correctly and I do not consider it caused the agency providing care to withdraw.

The complaint

  1. Ms X complains about the Council and CCG’s actions in providing community care services for her daughter, Ms Y. In summary:
    • In February 2016, a Council occupational therapist (OT) completed a moving and handling assessment for Ms Y. This was discussed at a professionals’ meeting the following month to which Ms X was not invited and she disagreed with the new moving and handling plan.
    • Ms X says she was told that, unless she followed the moving and handling plan, the matter may be referred to the Council as a safeguarding concern.
    • To accommodate the new plan, OTs visited the property and moved items of furniture. Ms X says this was unworkable and distressing.
    • Ms X says the Council and CCG’s actions have resulted in a breakdown of the care package and she has been unable to take carer’s breaks.

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What I have investigated

  1. I have investigated the complaints about the moving and handling plan, safeguarding and the care package. I have not investigated the complaint about rearranging the furniture in Ms Y’s room for the reasons outlined at the end of this statement.

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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, 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)
  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 takes action to stop the same mistakes happening again.
  4. 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 has to make. Therefore, my investigation has focused on the way that the body made its decision.
  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 have discussed the complaint with Ms X’s advocate and shared a summary of the complaint with her and Ms X. I have invited comments on the complaint from the Council and CCG and considered these comments with supporting information.
  2. I have issued a draft decision on the complaint and invited comments from all the parties. I have discussed the draft decision with Ms X.

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What I found

  1. Ms Y has learning and physical disabilities. She has epilepsy and experiences frequent seizures. She also has a tracheotomy and osteoporosis.
  2. The CCG arranges Ms Y’s care. However, the OTs involved in this complaint are Council officers. Further, the Council has responsibilities towards Ms X as a carer so I have treated the Council and CCG as jointly responsible for the matters in this complaint.
  3. The Council’s case notes leading up to 2015 show the agency providing care (Agency J) expressed some concerns about how its carers were moving Ms Y, specifically in relation to Ms Y’s toilet transfers.
  4. A Council OT, Ms K, completed a moving and handling assessment for Ms Y in December 2015. The Council’s records show it sent the assessment to Ms X on 18 February 2016. However, the Council has been unable to provide a copy of the assessment.
  5. A professionals meeting took place on 8 March 2016. Mrs X says after the meeting, the CCG threatened her with a safeguarding referral and best interests meeting if she did not comply with the OT’s recommendations.
  6. Ms K produced a new assessment in April 2016 which recommended Ms Y be hoisted for all transfers. However, a different assessor later concluded Ms Y could be manually transferred.

Law and guidance

  1. Section 42 of the Care Act 2014 says that a council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk.

Analysis

The moving and handling plan

  1. In 2015, Agency J requested a new moving and handling assessment in relation to transferring Ms Y to and from the toilet. It explained that while the transfer was not problematic ‘nine times out of ten’, there was still a risk of carer injury. Therefore, it needed to ensure its carers were safe while transferring Ms Y. Ms K visited to carry out the assessment in December 2015.
  2. The Council sent Ms X the new moving and handling assessment in February 2016. Ms K’s comments from the case notes were that she considered a professionals meeting was necessary to ‘discuss the assessment and plan how to proceed’.
  3. The meeting was held on 3 March 2016. Present were representatives from the CCG, Agency J and Ms K. The Council’s case notes reflect, in summary:
    • That Ms Y should be transferred by hoist, as a carer from Agency J had sustained an injury doing manual transfers.
    • Ms X would likely oppose hoist transfers.
    • The carers from Agency J would discuss the plan with Ms X on 7 March 2016. Ms K would also discuss the plan with Ms X on 10 March 2016.
    • Ms K was clear Ms Y should be hoisted for all transfers and a physiotherapist should review how safe Ms X was when ‘walking’ Ms Y (Ms X’s method of assisting Ms Y when walking).
  4. It is true that Ms X was absent from this meeting. However, there was no moving and handling plan produced until later, after Ms X and Ms Y had significant input into the assessment. This is outlined below. The Council therefore took appropriate steps to consult with Ms X before completing the moving and handling plan, despite her not being invited to the initial meeting. There is therefore no evidence of fault.
  5. Ms K contacted a physiotherapist on 7 March 2016 and asked her to review Ms Y’s standing, use of a standing frame and whether it was safe for Ms X to continue to assist Ms Y to walk. The notes say the primary issue was around assisting Ms Y with toileting.
  6. Ms X had a discussion with Ms K on 8 March 2016. Ms X explained Agency J had expressed surprise at Ms K’s conclusions. She was also concerned the assessment had been discussed at a professionals meeting without her. Ms X clarified that she had not refused the idea of a hoist but it would not fit through the doorway and there was nowhere to store it.
  7. The notes from the conversation say Ms X intended to continue to move Ms Y manually and she would agree to Agency J withdrawing care if it planned to use a hoist. Ms K explained a physiotherapist would review the situation.
  8. The same day, the Council’s notes say that Agency J contacted Ms K to explain it had told Ms X that its staff would no longer be lifting Ms Y and Ms X was very upset by this. Ms K again explained that a physiotherapist would visit to review Ms Y.
  9. On 10 March 2016, Ms K visited again. Ms X said she would carry out all manual transfers for Ms Y and she disagreed with Ms K’s recommendations to hoist Ms Y. Ms K explained that a moving and handling plan needed to be in place for Ms Y’s carers and in the event Ms X was unable to move Ms Y. Ms K advised she would arrange another visit to review moving and handling for Ms Y.
  10. Ms K spoke to the physiotherapist who had visited Ms X on 21 March 2016. The physiotherapist explained she considered carers would be at risk holding Ms Y in standing position to fit the straps for her standing aid. Therefore, she recommended that the standing aid no longer be used. She explained she would visit to trial standing slings instead.
  11. On 1 April 2016, a moving and handling assessor, Ms L, completed a plan for Ms Y during a home visit. The notes record Ms Y’s bedroom was rearranged to allow for hoisting. The plan concluded Ms Y could be manually transferred from her wheelchair to the toilet with the help of carers but should be hoisted to and from bed. The assessment also concluded Ms Y’s carers needed training to help Ms Y to mobilise.
  12. Ms X contacted Ms K on 4 April 2016 to say Agency J advised its carers were not trained to use a hoist and therefore would not be able to transfer Ms Y to and from bed. A risk assessment Ms K completed dated the same day concluded Ms Y should be hoisted for all transfers, including transfers to and from the toilet. The assessment noted there were high risks of injury to Ms Y and Ms X if Ms X continued with manual toilet transfers.
  13. I consider there is some evidence of fault in that I cannot see that Ms K, in completing her risk assessment, considered Ms L’s moving and handling plan which suggested manual transfers to and from the toilet were possible. However, I do not consider the fault has resulted in an injustice to Ms Y or Ms X. Even though Ms L’s plan said manual transfers were possible, the transfers needed to be completed by carers with specialist training rather than agency carers – as discussed below. I therefore do not consider the injustice claimed – Agency J withdrawing care, can be linked to this fault.
  14. On 25 April 2016 Ms K visited again with a company to quote for a ceiling track for a hoist for Ms Y. The plan was to replace the ‘J-track’ with a straight track directly over Ms Y’s bed. Ms K anticipated that installing the new hoist would eliminate the need to manually transfer Ms Y. The notes from the visit indicated there were no problems when trialling the hoist with Ms Y and that Ms X had ‘no concerns’ about using the sling. Ms Y needed to be rolled on the bed for access to her lower body for toileting hygiene as there was no suitable sling to enable access to Ms Y’s lower body. However, it later became apparent Ms Y could not be rolled on her bed because of a high risk of reflux. Further, if she was hoisted her PEG feed would need to be removed for a long time.
  15. Ms K therefore arranged to visit with Ms L on 20 July 2016. During the visit Ms L observed Ms Y transfer from her wheelchair to the toilet and back. Ms L observed that there were risks and benefits to Ms Y manually transferring. Ms L and Ms K agreed to update the risk assessment and discuss the risks of manual transfers at a ‘higher level’.
  16. Ms L considered that the benefits of manual transfers outweighed the risks. However, she considered there needed to be a contingency plan, that is, a sling that could be used if Ms Y was having a ‘bad day’ and therefore was at a higher risk, for example, of having a seizure.
  17. Ms L produced a new moving and handling assessment on 24 August 2016. She noted that when Ms X helped Ms Y to walk, the technique was ‘very specific’. Ms L commented that any carer would need to be very knowledgeable and confident to complete the procedure safely. Ms L confirmed that Ms X was managing all moving and handling tasks ‘as the care agency are unable to carry out the current moving and handling practices’. The assessment concluded that Ms Y should have a direct payment to enable her to employ ‘highly-trained’ personal assistants. Ms Y would still require a hoist for days when manual transfers were not possible or presented risk.
  18. The initial assessment, completed in April 2016, concluded Ms Y could be transferred manually to and from the toilet. However, the corresponding risk assessment does not appear to have taken this into account. This is fault.
  19. However, Ms L’s August 2016 assessment concluded it was not appropriate for agency carers to continue to transfer Ms Y. Ms L’s assessment, while agreeing manual transfers, recommended highly trained staff, employed using a personal budget. I have seen no indication it was appropriate for agency carers to continue to transfer Ms Y or that Agency J was wrong in refusing to continue with the transfers. I therefore do not consider the fault caused Agency J to withdraw care.

Safeguarding

  1. An officer from Agency J, Ms X says, threatened her with safeguarding action if she failed to follow the moving and handling plan. This occurred during a telephone call on 8 March 2016.
  2. Having discussed the matter with Ms X, she has clarified that a staff member from Agency J had a discussion with the CCG. The staff member then told Ms X the CCG had mentioned safeguarding.
  3. Under the Care Act, Agency J, on behalf of the Council, was obliged to report any safeguarding concerns. It is clear that Ms K considered there was a risk, both to Ms X and Ms Y, if Ms X or carers continued with manual transfers. If Agency J or anyone else involved was considering a safeguarding referral, it was transparent to share this information with Ms X. I therefore do not consider there is evidence of fault.
  4. Ms X says she felt threatened and intimidated by the suggestion of a safeguarding referral. There is nothing in Ms X’s complaint to suggest that Agency J gave her the information in an intentionally threatening manner, although I can appreciate the prospect of a safeguarding referral was unsettling. Indeed, Ms X’s recollection is that Agency J suggested it would be at risk of investigation itself if its carers continued to manually transfer Ms Y. Further, Agency J was relaying the contents of a conversation to which Ms X was not a party. Therefore, while I accept, on balance, that Agency J raised the possibility of a safeguarding referral, I cannot conclude this is evidence of fault. I also note the Council has apologised to Ms X for her experience in this regard.

Carer support

  1. I do not share Ms X’s view that the Council and CCG’s actions caused Agency J to withdraw care. The evidence shows that Agency J expressed concerns about manual transfers. One of its staff was injured carrying out a manual transfer.
  2. Both Ms K and Ms L’s assessments concluded there was a risk involved in completing the transfers manually. The alternative was to use a hoist but Ms X was reluctant to agree with this. I fully appreciate Ms X’s reasoning in that transferring manually and walking has improved Ms Y’s overall mobility. However, this does not change the fact that that there was a risk involved. Ms L’s assessment ultimately concluded that a very specific technique was needed to safely transfer Ms Y and any carer would need to be very knowledgeable. I am not persuaded it was reasonable to expect Agency J to train all its carers in such a specific technique.
  3. Further, Agency J was entitled to decide it did not wish to ask its carers to take the risk. Equally, Ms X was entitled to decline care from Agency J if it involved using a hoist. I cannot conclude that the moving and handling assessments resulted in Agency J withdrawing care and there is no fault.
  4. On 15 July 2016, the Council completed a carers’ assessment for Ms X. It concluded Ms X would apply for a personal health budget. This was to enable Ms X to achieve desired outcomes such as taking part in more outings with her family and engaging in ‘recreational activities’ with Ms Y. The Council paid Ms X a personal budget for carer support of £400 on 22 August 2016 for her to achieve the outcomes set out in her carers’ assessment. I therefore consider the Council and CCG arranged for appropriate carer support and there is no evidence of fault.

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Final decision

  1. I have completed my investigation on the basis there is some fault in the April 2016 risk assessment. However, the fault has not caused an injustice.

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Parts of the complaint that I did not investigate

  1. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe it is unlikely they could add to any previous investigation by the bodies.
  2. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
  3. Ms X explained it was distressing for her and her daughters to move the furniture in Ms Y’s room, only to have it moved back again. She asked for an apology. The Council apologised for the distress Ms K’s actions caused in its complaint response in June 2017. I therefore consider that further investigation into this matter is unlikely to add to the outcome Ms X has already achieved.

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Investigator's decision on behalf of the Ombudsman

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