19. 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 Miss I to understand the reasons why she could not do so. We have also considered the time the Trust has taken to respond to Miss I.
20. We understand Miss I is yet to have arm surgery although she is now on a waiting list at a different Trust.
21. We are sorry to learn of what has happened, how this has affected Miss I’s treatment options and how she worries she lost an opportunity for a better clinical outcome. We are also sorry to hear Miss I continues to be in pain and how these events have affected her finances and daily life.
Conservative treatment and no clinic correspondence
22. Given the circumstances of the conservative treatment and appointments, we consider it may have not been immediately obvious to Miss I she had a reason to complain. We think Miss I could have realised she had a reason to complain about the conservative treatment only after starting to experience its alleged impact.
23. We note Miss I had consultations on 16 May (minor injuries unit), 19 May, 2 June, 7 July and 13 October (fracture clinic), and 2 November 2017 (upper arm specialist).
24. Miss I tells us a physiotherapist spotted her fracture was healing incorrectly in June 2017. The Trust says she complained of pain and restricted movement for the first time in October 2017. As such, we consider she was aware she had a reason to complain about this in October 2017 at the latest.
25. Similarly, Miss I may not have noticed she was not receiving the clinic correspondence in May 2017 as she had several appointments between then and July 2017. Such correspondence is often not typed on the day of the appointment. We consider Miss I would have known she was not receiving clinic letters by the October 2017 appointment at the latest.
Wait for surgery, no tests or referrals, and no cardiology input
26. Considering the wait for the surgery and preparation for it, we recognise it may not have been immediately obvious to Miss I she had a reason to complain. This is because of her complex medical history and the number of appointments.
27. Miss I discussed the surgery option with an upper limb specialist for the first time on 2 November 2017. The specialist noted their concerns about potential osteoporosis (a condition which weakens bones, making them fragile and more likely to break). The specialist decided to review Miss I again following the results of investigations for osteoporosis.
28. The upper limb specialist saw Miss I again on 11 and 31 January 2018. They expressed their concerns about the possible failure of surgery because of confirmed osteoporosis. But, on 19 February 2018, the Trust told Miss I she would go on the list for surgery. This was subject to a preoperative assessment and investigation into her known heart issues.
29. On 22 August 2018, a consultant in anaesthesia (a specialist in medicines used during tests and surgical operations to numb sensation in certain areas of the body or to induce sleep) and pain medicine reviewed Miss I’s bone scan results and referred her to the rheumatology department (which specialises in disorders and diseases of the joints and surrounding tissues) for osteoporosis treatment. The Trust decided the surgery should be postponed to allow the investigation and treatment of the osteoporosis.
30. Miss I saw a consultant rheumatologist on 28 September 2018 and started her treatment on 15 November 2018. She went to the preoperative assessment clinic on 19 November 2018, where the Trust noted she had heart failure (when the heart does not pump blood around the body properly), had had a previous valve replacement (surgery to replace a damaged heart valve which helps maintain blood flow) and had a pacemaker (a small device which sends electrical pulses to the heart to keep it beating regularly and not too slowly).
31. On 28 November 2018, a consultant anaesthetist reviewed Miss I’s notes and said the surgery could go ahead subject to the results of pacemaker test beforehand. The Trust asked for pacing advice from a different Trust (which gave cardiology care to Miss I) and received it on 27 December 2018.
32. The Trust says Miss I did not attend an appointment with a consultant in anaesthesia and pain on 24 December 2018 and they discharged her from the pain clinic.
33. On 17 January 2019, a consultant rheumatologist reviewed Miss I and planned to repeat her osteoporosis treatment in November 2019. On 28 February 2019, the Trust said Miss I should be reviewed by the upper limb specialist rather than be given a date for surgery. It says it is unclear from the notes why the surgery was cancelled in February.
34. On 25 March 2019, Miss I saw the upper limb specialist who placed her on the waiting list for surgery again. A preoperative nurse reviewed Miss I on 31 July 2019, referring to up-to-date information from Miss I’s cardiologist. A consultant anaesthetist reviewed the notes on 19 September 2019. Again, they recognised Miss I’s complex heart issues and noted her last cardiology review had been in September 2018. The Trust also noted Miss I had a raised HbA1C level (a blood test showing the average blood sugar level over the previous two to three months), which is a sign of diabetes.
35. On 27 September 2019, the Trust noted Miss I was under review from the diabetic nurse at the GP surgery and she was controlling her diabetes through diet rather than medication. Miss I was due to have a pacemaker check on 30 September 2019. The Trust gave Miss I a surgery date for March 2020 as she passed the preoperative assessment. This was subject to a final review once a surgery date was known.
36. On 28 October 2019, the consultant rheumatologist spoke to Miss I who did not want more osteoporosis treatment in November and cancelled it. Miss I saw the upper limb specialist on 12 December 2019. They explained to Miss I the surgery had a high risk of failure, a risk of infection and a risk of the need for further surgery.
37. On 12 February 2020, a consultant anaesthetist reviewed Miss I’s case and decided to postpone the surgery which had been planned for 17 March. This is because Miss I was due to have a cardiology review on 30 March and a pacemaker check on 30 April. This was explained to Miss I in a phone call and by the consultant during an appointment. We understand this is when Miss I decided to make a complaint.
38. We appreciate there is some uncertainty about when Miss I should have been aware she had a reason to complain. We understand the Trust put her on a waiting list in February 2018 and then made the first decision to postpone the surgery in August 2018. We note the Trust cancelled surgery in February 2019 for no clear reason.
39. We consider Miss I should have known she had a reason to complain approximately one year after being put on the waiting list at the latest, so February 2019. This is because although the Trust was arranging appointments in preparation for the surgery, it cancelled the surgery in February 2019 for no clear reason. We consider this a long enough delay to complain about. We also think, at that stage, Miss I would have known the Trust had not referred her or arranged tests and had not contacted her cardiologist.
Time consideration
40. Miss I phoned us on 4 January 2021 and we received her complaint form along with the supporting documentation on 18 February 2021. We advised Miss I we could not consider her complaint yet and she raised further issues with the Trust on 7 March 2021. The Trust responded on 17 March and Miss I gave us its final response on 23 March 2021.
41. As Miss I did not complain to us until March 2021, her complaint about the conservative treatment and lack of clinic correspondence is outside our time limit by three years and five months. Her complaint about the wait for surgery, the lack of tests and referrals, and no cardiology input is outside our time limit by two years and one month. We have discussed with Miss I the reasons for the delays in her bringing the complaint to us.
42. Miss I explains she did not complain sooner because she expected the Trust to address and fix the problem. She says she could not have anticipated in 2017 what would happen. She says she verbally complained to the Trust sometime in 2019 but only put her complaint in writing in February 2020.
43. Miss I says how much pain she was and continues to be in, and how she has depression. Miss I has told us about her poor physical health and many comorbidities. Lastly, she has told us she does not understand how we were not able to get in touch with her before we closed her complaint in May 2021. She says we reopened her complaint for only one organisation she is complaining about and this complaint remains unresolved.
44. We accept Miss I’s explanation and we are very sorry to hear of her circumstances. We are also sorry for not reopening this complaint in a timely manner. When reaching a view about whether we should extend our time limit, we have not included the delay in us reopening the case.
45. We have reviewed what happened during the complaint process. We recognise Miss I told us she complained to the Trust in June 2017 on her complaint form. Miss I also told us she verbally complained sometime in 2019 during our phone call conversation.
46. While we accept what Miss I has told us, we have not seen any compelling evidence of this. For example, if Miss I had complained in 2017, we would have expected to see either a response or evidence she had been chasing a response. We consider 24 February 2020 as the date of complaint in line with the evidence we have seen so far.
47. We recognise the Trust responded on 22 April 2020, approximately two months after Miss I complained. We note the Trust referred Miss I to us although it told her we were currently not accepting any complaints because of the COVID-19 pandemic. This information was correct as we paused our service between 26 March and 30 June 2020.
48. We consider this did not cause a delay in Miss I approaching us. This is because although the Trust did not tell Miss I when we would start accepting complaints again, this information was available on our website. We also recognise the changing COVID-19 situation. By August 2020, the first lockdown was lifting and society was starting to reopen. But Miss I waited until January 2021, when the third lockdown was in effect, to contact us.
49. In February 2021, after Miss I contacted us, we recommended she return to the Trust to ask it to address issues it had not responded to. Miss I contacted the Trust again in March 2021. The Trust responded ten days after receiving Miss I’s her correspondence.
50. We are sorry to hear of the problems Miss I has experienced with the Trust. We agree it is reasonable to allow time for the Trust to act and fix the problem. But we also need to consider how long it is reasonable to wait for it to do this before making a complaint.
51. Miss I waited approximately three years and five months after she became aware of her concerns about the treatment and the lack of clinic correspondence. She also waited two years and one month in relation to the other issues before contacting us. We consider this is more than a reasonable amount of time to wait and she should have complained to us sooner.
52. We also recognise and are sorry to hear of Miss I’s poor physical and mental health. We understand Miss I was having, and continues to have, a difficult time. We note she was able to approach the Trust on her own in February 2020, almost three years after she broke her arm.
53. We note Miss I gave us a final response on 23 March 2021. We tried to contact her on 23 April, 5, 19 May and twice on 28 May asking her to get in touch to discuss her complaint, but we received no response. We closed her complaint on 28 May as we had not been able to get in touch with her.
54. Miss I later contacted us to say we had not been able contact her because she was ‘overwhelmed by wildlife treatment and other voluntary work, as well as having a very big increase in atrial fibrillation [a heart condition that causes an irregular and often abnormally fast heart rate] which makes [her] very tired’.
55. Miss I exchanged a few emails with our caseworker and we created a new case file on 23 June 2021. The new case referred to a complaint about a GP Practice only, not the Trust. We have not seen any evidence the caseworker and Miss I discussed the complaint about the Trust at that stage.
56. The GP Practice complaint was concluded on 31 March 2022. We recognise Miss I would have known we had not discussed her complaint about the Trust at that point. We started a case file for her complaint about the Trust on 12 May 2022.
57. We are sorry for the delay in reopening the file. We appreciate we should have reopened this file in June 2021. We will use this date in considering our time limit as the later delay was caused by our error.
58. We note Miss I has told us she does not know how we were not able to contact her. We made several unsuccessful attempts to contact her. She later told us we were unable to contact her because of her voluntary work and poor health.
59. We have carefully considered the information provided. We understand Miss I waited for the Trust to fix the problem. We also appreciate she was going through a difficult time with her ongoing poor physical and mental health. We note we could not contact Miss I at first and we made an error in not reopening the Trust file in a timely manner. As explained above, we have ignored the time it took us to reopen the case in considering our time limit. We have considered the delays until 28 May 2021 only.
60. Although we recognise Miss I’s reasons for the delay, these alone are not enough to extend our time limit.
Nursing advice
61. Miss I tells us a preoperative assessment nurse told her to stop taking her heart medication a week before surgery. We understand this happened in December 2019. Miss I says, in view of her right-sided heart failure, this advice was wrong. She says if she had followed this advice, she could have had organ failure.
62. We understand Miss I did not take this advice. We can appreciate how upsetting it must have been for Miss I to receive advice which she considered harmful.
63. The Trust says its records do not document advice like this and it would not have advised Miss I to stop taking any of her heart medication. It recognises Miss I would have been advised to stop taking supplements such as glucosamine (which helps to maintain the health of the tissue that cushions joints) a week before surgery. It apologises if there was any misunderstanding at the time.
64. Before we decide if we should investigate a complaint, we look at whether we could get enough information to help us come to a firm conclusion. We have done this and we consider it is unlikely we could make a definite decision about what is more likely to have happened during this preoperative assessment.
65. We accept Miss I’s account of events and do not doubt her memory of the situation. As an independent organisation, we rely on her and the Trust’s account. In this situation, the evidence is conflicting and we are unable to give more weight to either side.
66. As we have conflicting accounts, there is no practical way for us to investigate what was said or what was understood at the time. As such, there is no value in pursuing this investigation.
67. Based on the above, we will not investigate further.
Trust ended all correspondence
68. Miss I tells us the Trust ended all correspondence with her after she made the complaint in February 2020.
69. We understand the Trust offered Miss I an appointment with an anaesthesiologist (a specialist in anaesthesia care, pain management and critical care medicine) in February 2020, before she complained. At this point, the Trust decided to wait for Miss I’s cardiology review on 30 March and pacemaker check on 30 April before surgery. Miss I declined this appointment.
70. We note the Trust corresponded with Miss I about her complaint and gave its response on 22 April 2020. We can see the correspondence did not end completely as Miss I suggests.
71. The Trust says it arranged an appointment with an upper limb specialist as it said in its written response to Miss I’s complaint. It explains this coincided with the height of the COVID-19 pandemic, which meant all elective (care planned in advance) and outpatient activity paused shortly afterwards. It says this is because staff needed to work in other areas.
72. On 12 March 2020, the World Health Organisation declared COVID-19 a pandemic. On 17 March, NHS England advised all NHS trusts postpone all non-urgent elective operations for at least three months from 15 April (at the latest).
73. NHS England gave NHS trusts discretion to wind down their elective activity immediately. This was to ensure hospitals were able to handle the influx of COVID-19 patients and reduce the risk of hospital-acquired infections.
74. On 27 March 2020, the Trust decided to delay all non-clinically urgent operations immediately as it needed its staff ‘to focus on dealing with the pandemic’. Its website also said it ‘will not be offering outpatient appointments except in the most urgent cases’.
75. On 14 May 2020, NHS England set out a roadmap (a detailed plan) for restarting all planned procedures, including surgery. Specialists were advised to prioritise those with the most urgent clinical need.
76. We understand stopping all elective surgery caused a backlog which continued after operations restarted. Trusts were under further pressure during the second wave of COVID-19 in autumn 2020 and the third wave in winter 2020 to 2021.
77. We understand Miss I is now on the waiting list for arm surgery at a different Trust.
78. We understand the Trust had not been in touch with Miss I to advise her about the next steps or delays. We are sorry to hear of this and we recognise this one-year gap in communication added to Miss I’s concerns. We appreciate this is not the standard of communication Miss I would expect.
79. We do not believe these shortcomings in communication amount to a sign of a serious enough failing to investigate this further. This is because this relates to communication issues rather than the care Miss I received. We believe even if the Trust had contacted Miss I, it is likely she would have had to wait for surgery. Given the COVID-19 pressures and the elective nature of her surgery and its associated risks, it is unlikely she would have been prioritised.
80. Given Miss I was not a priority for a surgery, we believe the Trust did not have a reason to correspond with her. We recognise the Trust could have sent a holding letter, but we do not think this would have been a sensible use of resources during the COVID-19 pandemic. We have also not seen any evidence Miss I tried to contact the Trust during this time.
81. As such, we will not look into the communication issue any further.