The physiotherapist failed to move Ms H with the assistance of two people
15. The law that sets out our powers and role is the Health Service Commissioners Act 1993 (the law). It says, at section 3(2), ‘In determining whether to initiate, continue or discontinue an investigation under this Act, the Commissioner shall act in accordance with his own discretion.’ This means the law allows us to use our judgement to decide which complaints we investigate.
16. Our Service Model Guidance gives more detail about how we reach those decisions. It says, at section 3.10: ‘There will be occasions when we decide that there are other reasons why we should not investigate a complaint made to us.’ One of these reasons is ‘that an investigation would not be practical, would not reach a satisfactory conclusion and there would be no value in providing that response through an investigation.’
17. Mr L told us his mother had made improvements with her walking prior to the day of the fall. On 25 November, the physiotherapist attended alone. Ms H’s carer happened to be present at the same time and this had not been planned or co-ordinated.
18. Ms H’s records on this day state the physiotherapist carried out an ELITE assessment. This is a risk assessment for moving and handling. The notes state the carer was present to assist with mobility if required.
19. The notes indicate the physiotherapist mobilised Ms H alone, with a rollator frame and a commode behind her. The notes state she was trialled for 2.5 metres and then wheeled back to her bed. The notes state Ms H had a fear of falling. There is no documentation of a fall. The notes stated Ms H would require the assistance of two people to mobilise for her next session.
20. As part of the complaint response, the Trust interviewed the physiotherapist. She explained she reviewed Ms H’s previous case notes and considered the moving and handling issues on the day. She made an assessment that it was safe to proceed with just her as one person assisting Ms H on that day.
21. We can establish from the records and the video evidence discussed below, that Ms H was moved with the assistance of one person, and this was based on the risk assessment carried out on the day.
22. The HCPC standards state at section 4.2, registrant physiotherapists must ‘be able to make reasoned decisions to initiate, continue, modify or cease techniques or procedures, and record the decisions and reasoning appropriately’.
23. Based on the records, it appears the physiotherapist carried out an assessment and mobilised Ms H in line with this.
24. We appreciate Mr L will be concerned about the accuracy of the assessment carried out, given the issues dealt with in paragraphs 27 to 31 of this statement, which we understand and accept. In view of this, it is not possible for us to determine if the assessment was carried out accurately or not, due to a lack of further evidence.
25. Based on the evidence we have seen, the physiotherapist carried out a risk assessment, and attempted to mobilise Ms H alone. Unfortunately, Ms H did fall, but we do not have sufficient evidence to determine if this was a result of a failing in the physiotherapist’s assessment, or an accident.
26. We do not consider a detailed investigation will allow us to access any further information to reach a satisfactory conclusion. This is a reason we should not investigate in line with our Service Model. Therefore, we have decided not to investigate this point further.
The physiotherapist lied about the fall
27. Mr L told us after the fall his mother complained of knee pain. He spoke to the physiotherapist on the telephone two weeks after the incident and provided us with a recording of this conversation.
28. In this conversation, the physiotherapist described the events of the fall. She said the carer was in front of Ms H with the frame, and that she fell backwards into the commode after feeling unstable on her legs. The physiotherapist described Ms H’s hands touching the floor, but not her knees.
29. Mr L had a video camera set up in the next room, so that he could ensure his mother’s safety. In this video, the carer can be seen in the next room on the telephone. From the bedroom, the front of the rollator frame is visible, and Ms H can be heard calling out. The carer then goes into the room to assist.
30. We consider this video footage shows the carer was not in front of the frame as described on the telephone call. This directly contradicts the physiotherapist’s verbal account of what happened. The physiotherapists’ verbal account is also not in keeping with the medical records which do not mention the carer’s assistance.
31. Based on the evidence available, we consider the physiotherapist did not tell Mr L the truth about how Ms H fell.
32. Mr L told us the impact of the inaccurate account, was that he did not know to get his mother checked for any injuries. Ms H was admitted to hospital ten days later.
33. We understand how distressing it must have been for Mr L to see his mother in pain and unable to walk again after the fall. We have considered the impact of the lack of accuracy in the physiotherapist’s account. We consider this led to a lack of clarity about what happened, so that Mr L could ensure his mother’s pain was investigated.
34. Our NHS Complaint standards state organisations should ‘give fair and accountable responses that: • set out what happened and whether mistakes were made • fairly reflect the experiences of everyone involved • clearly set out how the organisation is accountable • give colleagues the confidence and freedom to offer fair remedies to put things right • take action to make sure any learning is identified and used to improve services.’
35. Our Service Model Guidance says at section 7.93: ‘We would normally only recommend compensation for non-financial loss for the family members of the deceased if they have suffered a specific injustice themselves. We take this approach on the basis that, if someone has died, we cannot remedy the fact that they suffered distress or inconvenience.’
36. To assist us in considering an appropriate level of financial remedy, as well as casework policy and guidance, we use our severity of injustice scale (our scale). We also review similar cases where the person has experienced similar injustice.
37. Level two of our scale covers distress and worry which does not impact on the affected person’s ability to live a normal life, from a period of one to two weeks to about six months. This also covers single instances of mores serious injustices where the impact was of short duration.
38. Level two of our scale covers figures from £120 to £550. We consider Mr L experienced distress over a period of months due to not having the fair and accountable response on this issue. We have taken into account Mr L told us the impact was much more significant. However, we do not consider we can say the impact affected his ability to lead a normal life.
39. In line with this, we approached the Trust to ask if it would consider providing a resolution for Mr L, in view of the findings the physiotherapist had not been honest and Mr L had received contradictory evidence. The Trust agreed to provide a letter of apology and acknowledgement of what happened. It agreed to provide a financial remedy of £500, in keeping with the top of level two on our scale.
40. Section 3.60 of our service model guidance says ‘It is for us, and not the person bringing the complaint to us, to decide whether the actions taken have resolved the complaint.’
41. We understand Mr L feels our assessment of financial remedy to be insufficient. From our consideration of the complaint, we believe this action by the Trust provides a satisfactory resolution to the wrongdoing we found and the impact this has for Mr L.
Conclusion
42. We are sorry to hear of the circumstances leading to Mr L’s complaint. We do not underestimate how distressing it was for Mr L to see his mother in pain and unable to walk.
43. We are unable to reach a conclusion on whether Ms H’s fall was a result of a failing, and so we cannot investigate this aspect of his complaint further. We see indications the Trust was not honest with Mr L about what happened, and we asked the Trust to take action to resolve this, which it has agreed to do. We believe this is fair and proportionate to put right the injustice he has suffered. We thank Mr L for bringing his complaint to us.