22. Before we decide if we should investigate a complaint, we look at whether there are signs the organisation concerned has got something wrong. We do this by comparing what should have happened with what did happen. If what happened fell far short of what should have happened, we call this a failing. When we see indications of a failing, we next look at whether that failing had a negative impact on the person in question. If we think it did, we will go on to consider what, if anything, the organisation has done to try to put things right.
23. Having done this, we saw no indication that the CCG did anything wrong when it declined Mrs R’s Individual Funding Request, based on the information it received at that time. Nor did we see any indication the Trust did anything wrong in providing care to Mrs R, in telling the CCG that it could provide that care in the community, or that it discriminated against Mrs R due to her size. The concerns about Mrs R’s inpatient stay were outside our time limit.
CCG – Individual Funding Request
24. The CCG’s policy defines an Individual Funding Request (IFR) as ‘a request received from a clinician providing care to a patient, for a specific treatment that is not covered by existing policy or for a service which is not commissioned by ENHCCG (an Individual Case). It also applies where the CCG is responsible for commissioning the service/treatment in question and/or a local policy is in place, but the patient does not meet the criteria and is deemed to be clinically exceptional (an exceptional case). In either case there is a basis for considering that the requested intervention is likely to be clinically effective for the patient and is considered to be a good use of NHS resources’.
25. In January 2019 Mrs R’s GP submitted an IFR for an inpatient stay at a local stroke rehabilitation centre. Mr R spoke to the CCG and explained that Mrs R had not had the opportunity to properly complete the initial rehabilitation programme offered by the Trust as sessions were cut short or abandoned due to lack of equipment. Although this IFR is not the subject of the complaint, the events inform the second IFR.
26. The CCG declined this application after commissioning a report from the Trust, which set out how Mrs R’s needs could be met locally. The CCG elaborated in its response that it had looked for and found no grounds of exceptionality – that is, that Mrs R’s case was not exceptional compared to other patients of the same category. Although the CCG declined the application, the Trust was able to admit Mrs R to its neurological rehabilitation unit in line with its own policy.
27. In August 2020 the GP submitted a second IFR. This time the request said Mr R would like ‘for extra rehabilitation and would like regular physiotherapy’. The type, location or quantity of sessions was not specified in the request. The GP added that Mrs R was, at that time, receiving weekly physiotherapy from the Trust. She was also doing two hours per week at home with her husband and attending private physiotherapy twice a week. Within a week the CCG responded to remind the GP that it had previously told her that she would need to demonstrate Mrs R’s exceptionality and it did not identify anything in the request which would do this.
28. In order to be considered an exceptional case, the GP would need to ‘demonstrate that their patient is in a different clinical condition when compared to the typical patient population with the same condition and (if relevant) at the same stage of progression, and because of that difference their patient is likely to receive material additional clinical benefit from treatment that would not be plausible for any typical patient.
29. The GP did not explain how Mrs R was in a different clinical condition compared to the typical patient population or that she would receive material additional benefit compared to a typical patient. We consider that no rationale was presented to the CCG which would enable it to approve the IFR, and therefore we did not see that anything went wrong in its decision making.
30. We recognise that this was disappointing to Mr R, as he felt his wife would gain significant benefit from the proposed extra therapy.
Community physiotherapy
31. Mr R told us that the physiotherapy Mrs R received in the community setting following her 2019 inpatient stay was not sufficiently intense and she did not progress as quickly as she could have. He said, as a result of this, she is still unable to walk or transfer to her bed unaided. He said that his wife should receive therapy at a local centre which is able to give her the opportunity to walk supported by bars, a therapy she had previously received on a private basis. He added that the Trust discharged her from therapy in November 2020 because she couldn’t weight bear on her right leg.
Decision to provide physio in the community
32. The Trust wrote to Mrs R’s MP in March 2020 and said ‘we remain of the clinical opinion that Mrs R does not meet the criteria for an admission to an inpatient neurological bed but does fit the criteria for community therapy’.
33. We considered what should have happened following Mrs R’s inpatient stay, which is set out in the Trust’s Integrated Community Team and Neurological Therapy Pathway and also in NICE Clinical Guideline CG162, Stroke rehabilitation in adults. We also got advice from a physiotherapist.
34. CG162 1.1.11 says ‘before transfer from hospital to home or to a care setting, discuss and agree a health and social care plan with the person with stroke and their family or carer (as appropriate)’.
35. Broadly speaking, the Trust’s guidance says that patients without complex needs should be cared for by the Integrated Community Team (ICT). A non-complex patient with simple remaining goals following a hospital stay – such as Mrs R - should be referred into the ICT for their ongoing rehabilitation needs.
36. Following Mrs R’s inpatient stay, staff at the Trust drew up a care plan which set out what she had achieved during the stay and what she still wanted to achieve. There were three remaining goals for Mrs R to work towards:
· transfer with supervision using only a walking frame · explore getting out in her garden · to lose more weight.
37. The care plan specified that the ICT would work with Mrs R on the step transfer for a further six sessions at home. Our adviser considered Mrs R’s care plan and noted that goals relevant to the inpatient stay had been met. It was, therefore, appropriate and in line with guidance to offer Mrs R community-based rehabilitation.
Amount of therapy
38. Mr R was concerned about the amount of physiotherapy his wife received. In particular he felt that more than one session per week could have been provided, or the sessions could have been longer. He felt that some sessions ended earlier due to his wife becoming short of breath. He also said that staff did not consider it safe for his wife to practise walking with bars, even though she had previously done this when she had private physiotherapy.
39. CG162 1.9.3 says ‘treatment for people with movement difficulties after stroke should continue until the person is able to maintain or progress function either independently or with assistance from others (for example, rehabilitation assistants, family members, carers or fitness instructors’. No frequency is specified for therapy sessions in this guideline or in the Trust’s guidance, except for immediately after the initial acute diagnosis of stroke.
40. During the sessions, physiotherapists should work to the standards laid out in the Chartered Society of Physiotherapy Quality Assurance Standards (CSP standards) for physiotherapy service delivery.
41. Mrs R received community support following her discharge in June 2019 until she had an unrelated fall in August. She was discharged from ICT pending the outcome of scans, but Mr R was told she could be referred back into the service by either Mr and Mrs R, or their GP.
42. Following intervention by Mr and Mrs R’s MP, Mrs R was assessed again, and community rehabilitation began again on 26 February 2020. Mrs R received three weekly sessions until the coronavirus pandemic restrictions caused a suspension of community therapy until 30 July. She then had eight weekly sessions until it was agreed between the physiotherapists and Mr and Mrs R that they should wait for her new orthotic to arrive before they continued. The orthotic was intended to stabilise Mrs R’s ankle and it was hoped this would help with her physiotherapy.
43. We considered Mrs R’s community notes for 2019 and 2020. We can see that therapy sessions lasted between 60 and 120 minutes and shortness of breath on exertion (SOBOE) is frequently noted.
44. Our adviser explained that the following CSP standards should be followed here:
· 8.5 Appropriate treatment options are identified based on the best available evidence, in order to deliver effective care.
· 8.6 The plan for intervention is constantly evaluated to ensure that it is effective and relevant to the service user’s changing circumstances and health status.
45. The Trust agreed to more than the initially planned six sessions at Mr R’s request. It also allowed for the orthotic to be obtained and altered before continuing sessions. The adviser noted that SOBOE, fatigue and emotional upset were all factors that the physiotherapists should be considering. Given this, they said, there may have been no benefit to Mrs R in longer sessions, and the physiotherapists were acting in line with CSP standards 8.5 and 8.6.
46. Our adviser also considered the frequency of sessions, which is not set out in the relevant guidance and is at the discretion of the clinicians. They explained that after a session the patient needs time to recover and practise any set regimes and, as such, the frequency of sessions appeared appropriate.
47. To conclude, it appears staff worked to the applicable standards. Although we know this did not feel like enough from Mr R’s perspective, when deciding what to do, staff had to consider how Mrs R responded to therapy, and any changing factors, and it seems they did this appropriately.
Walking with bars
48. Mr R explained that he often asked during sessions whether his wife could attend a local centre to practise walking supported by bars, as she was already doing this on a private basis. This is documented in Mrs R’s record, which also shows the physiotherapists did not think that Mrs R was ready for this, but that when appropriate there was a possibility of her having sessions in the parallel bars at the outpatient gym.
49. We asked our adviser whether the physiotherapist’s response was reasonable and what the physiotherapists would need to consider. They said that Trust’s plus size policy as well as the following CSP standards all applied:
· 2.2 Physiotherapy staffing and skill mix is sufficient to support the services being provided · 2.3 Physiotherapy services are delivered in a safe environment · 2.4 There is a systematic, proactive and responsive approach to risk management that follows the organisation’s overall strategy.
50. The Trust applies its plus size policy when it is treating any patient weighing in excess of 125kg or with a BMI of 30 or more. Mrs R weighed 134kg in June 2019, so it follows that this policy applied. Sections 6.1 to 6.4 set out the need to conduct a detailed risk assessment before undertaking treatment, especially considering that obese older adults are at greater risk of falls. Although there is no formal risk assessment form, the physiotherapists’ rationale is documented in the community record, which is noted as being discussed with Mr and Mrs R during a visit on 1 September.
51. The physiotherapists acknowledged Mrs R had ‘improvement in strength in some of her right lower limb muscles, but not others, and that this improvement needed to translate into function’. She had ‘not managed weight transfer from one leg to the other in standing… at times, on standing, right lower limb goes into external rotation at the hip resulting in foot turning outward, and with the knee in genuvalgus position and foot in pronation… this right lower limb position is not safe for patient’s weight to go through in standing as it could result into knee dislocation and other injuries; plus the risk of the patient falling and possibly fracturing some bones’.
52. On 18 November 2020 Mrs R was discharged by the community team following her session. The team wrote to Mrs R with a summary of her therapy: ‘Your goal was to be able to mobilise with the frame to the toilet with or without the supervision of your husband. You have worked very hard during the physiotherapy sessions with the therapists and your husband. The weight transfer into one leg required to allow you to lift the opposite leg up and take a step was not well tolerated by your right ankle, which was painful both with and without the ankle brace... You had waited for the ankle brace for a while and unfortunately, when you finally got it, you found it was not comfortable. This is when you let the therapists know that you did not want to have the therapy sessions anymore.’
53. The Trust and Mr R have agreed Mrs R was having difficulty with her orthotic and with weight transfer. We consider that the physiotherapists were acting in line with the relevant guidance when they said it was not safe – at that point – for Mrs R to practise walking in bars.
54. Mrs R was also, for a time, practising walking in bars during private physiotherapy sessions. It is clear that this physiotherapist came to a different decision about whether it was safe for Mrs R to do so. While we cannot say how this decision was reached, we know that in reaching a decision a decision maker applies their own professional experience, which naturally varies from person to person. Additionally, the private physiotherapist would not have had to apply the Trust’s plus size policy, although they may have similar guidance. Given this, we cannot say that the Trust staff reached the wrong decision about the safety of walking in bars simply because she was doing so elsewhere.
Decision to discharge
55. We note that Mr R recalled that the decision to stop the physiotherapy sessions was made by the Trust rather than Mrs R. The Trust’s discharge summary to Mrs R that her husband was keen for her to have more therapy in the future, including walking in bars, once her right ankle could tolerate weight transfer. There is not enough evidence to say either way why Mrs R was discharged from community therapy. Even though the sessions had ended, Mr and Mrs R were informed about how they could refer back into the service. We understand that they have since done so and Mrs R is receiving physiotherapy in the home once more.
Trust Report to the CCG
56. Our Principles of Good Administration say that organisations should be open and truthful when accounting for their decisions and actions.
57. Mr R told us that the Trust had neither the capacity, nor the correct equipment, to look after his wife in the community. He explained that historically some sessions were cancelled, or shorter than expected. He said when the Trust reported that it could care for her in community, in August 2020, this was untrue and caused his wife’s IFR to be declined.
58. We have already considered what her GP said in the IFR application they made to the CCG in August 2020.
59. We can see that, as part of the IFR process, the CCG had sight of a brief email from the Trust to the GP. This explained that the community therapist had visited Mrs R in her home the previous day and identified that she would like to work on a step around transfer. It said that this goal could be managed in a home setting.
60. It went on to say they did discuss Mrs R walking again, however this may not be achievable, and an inpatient stay was unlikely to resolve this. If she improved more than anticipated, the Trust would reassess to see if an inpatient stay would be appropriate.
61. Although we saw that occasional sessions were postponed or rearranged, the majority were carried out as planned and we saw no indication the Trust did not have the capacity to care for Mrs R in the community. Mrs R’s agreed goals did not require any equipment which was not available.
62. We also note that the CCG commissioned a more detailed report from the Trust in 2019, following the earlier IFR application which is not considered here. Following this application Mrs R was admitted for inpatient treatment, so we can see why Mr R may have felt this earlier report was wrong when it said Mrs R could be looked after in the community. However, the CCG was not considering this report - it was no longer up to date due to the passage of time.
63. We have already considered the Trust’s provision of community therapy, which appears to be in line with guidance. Given this, we saw no indication the view it gave Mrs R’s GP was not reasonable and or that it did anything wrong here.
Size-based discrimination
64. Mr R told us that he believed the Trust discriminated against his wife due to her size when it did not provide the treatments he had asked for or believe that she would walk again. We can see that he complained to the Trust about this in August 2020 in an email sent via his daughter.
65. Although the Trust has not explicitly addressed this point, it believes it offered Mrs R an appropriate rehabilitation package.
66. We asked our adviser whether size is a clinical factor in making decisions about treatment. They told us that it is one of the relevant factors. This is highlighted in the Trust’s plus-size policy, sections 6.1 to 6.3. In this, the Trust recognises that plus size patients present special risk factors and challenges to healthcare staff; that older patients (such as Mrs R) with obesity have a higher prevalence of falls; and that a meticulous risk assessment should be carried out when planning the care of plus-size patients.
67. Mrs R was treated under the plus size policy. This means that there may be – as Mr R felt - differences in treatment for another patient who, other than for size, has a similar condition to Mrs R.
68. Section 7 of the plus-size policy deals with attitudes towards obesity. It reminds staff that they should treat patients equally irrespective of their weight and appearance. Section 18 concerns management of patients at home. It states that any specialist equipment required can be ordered as necessary. Outpatient treatment is considered in section 19, and this says that if space, equipment, or resources are not available, this can be reported to the Trust’s estates team.
69. The Trust appears to have taken steps to ensure that its larger patients have the opportunity to receive treatments available to other patients, as far as it can. In fact, we can see that the Trust undertook an equality analysis of the policy and concluded that ‘implementation of this policy is intended to have a positive impact on older people who are defined as plus-size as defined in the criteria outlined in section 4 of this policy. The policy will assist in supporting older people by reviewing their potential for rehabilitation and mobility along with equipment to use to meet the physical and psychological health needs’.
70. We cannot know whether Mrs R’s treatment would have been different if she had weighed less. When we considered Mrs R’s treatment in the community and why she was not offered walking in bars, we did not see any indication that decisions were made without a clinical rationale or due to a groundless assumption about Mrs R’s capabilities. We saw no indication that anything went wrong here.
2019 Inpatient stay
71. The law says a person needs to make their complaint to us within a year of becoming aware of the problem. We cannot investigate complaints brought to us after one year, unless we consider there is a good reason to do so. We have discussed this with Mr R to understand the reasons why he could not complain sooner. We have also considered the time the Trust has taken to respond to Mr R.
72. Mr R first raised concerns that the inpatient stay was insufficient via his MP, in November 2019, although the complaint was subtly different. At that time the MP did not say that the amount of physiotherapy included in the stay was too little. She passed on Mr R’s concern that the duration of Mrs R’s stay was too short and that six months would be more appropriate.
73. The Trust responded to this concern within a week saying that the Trust’s policy was for a four-week stay and suggesting that Mrs R’s GP referred her into the service again, for assessment of what could be offered. Mr R escalated the complaint and, on 9 January 2020 the Trust responded. His MP escalated the complaint to the Chief Executive of the Trust on 18 February and the final response was issued on 6 March.
74. The MP’s office provided a timeline following the final response. They explained that they were unable to help Mr R prepare his complaint for us before we stopped accepting NHS complaints on 26 March.
75. In the meantime, Mrs R’s Individual Funding Request was declined by the CCG in August 2020 and resubmitted. When this was declined again in October, the MP’s office encouraged Mr R to bring his complaint to us if he was still unhappy. The MP and Mr R both explained he had technical difficulties accessing and completing the form. He was able to bring the complaint to us in January 2021 with the assistance of his MP.
76. Due to the coronavirus pandemic we stopped accepting NHS complaints between 26 March and 30 June. It is clear that the complaint would have been on time if it had been brought to us shortly after the final response on 6 March. We can accept that the complaint was not submitted by 26 March. Mr R was using his MP for support and could not reasonably have anticipated our pause on accepting NHS complaints.
77. Mr R did not bring the complaint to us until January, although it appears he was trying to do so after October. This means there was a four-month delay from the date we started accepting complaints again to the date he started to try to bring the complaint to us. Although Mr R was pursuing the IFR at this time, this would not stop him from also continuing the complaint process. In addition to this, his initial concerns were not raised until five months after the event.
78. We did not see a strong enough reason to set the time limit aside and consider this point of the complaint.