An independent provider in the City of Brighton and Hove area

5. Mrs S complains:

• in November 2023 the Trust made a referral to a private provider (Hospital A), for knee revision surgery. The referral was incorrect because the specific surgery was not included in the Trust’s contract with Hospital A

• in June 2024 Hospital A told Mrs S the operation was not funded under the contract. The Trust delayed making a new referral to a hospital that would be able to do the surgery.

6. Mrs S says her operation was not done until 30 January 2025 and was delayed by 64 weeks. This caused a significant impact on daily life, and she was caused mental anguish and stress because she had to sort the referral out herself. She was in considerable pain in the period before the operation and her knee deteriorated significantly during that time. She says the pain could have been avoided if the operation had been done earlier.

7. Mrs S wants service improvements and financial remedy.

8. Mrs S had a partial left knee replacement in 2002.

9. On 2 November 2023 Mrs S had an appointment with an Advanced Physiotherapy Practitioner (APP) from the Trust. Following the appointment, the APP wrote to Mrs S on 9 November and said she had left knee osteoarthritis lateral compartment. This means the cartilage is wearing away on the outer side of the knee joint. The APP said the treatment plan was to make a referral to Hospital A for an opinion on a total left knee replacement.

10. Hospital A is part of an independent hospital group. Under the NHS patient choice scheme, the NHS funds certain treatments carried out by Hospital A.

11. Mrs S attended an appointment with a consultant orthopaedic surgeon from Hospital A on 24 November. The orthopaedic surgeon wrote to the APP on 5 December and said they had waitlisted Mrs S for a left revision of a partial to total knee replacement.

12. On 18 June 2024 a Hospital A pre-assessment manager called Mrs S and told her the surgery scheduled for 24 July could not be done at Hospital A because revision surgery was not included under its contract with the Trust.

13. Mrs S wrote to the consultant orthopaedic surgeon on 23 September in their capacity as a surgeon at Hospital B which is part of a different Trust. She asked if they could liaise with their secretary to contact the Trust to arrange the referral.

14. Mrs S was listed for surgery at Hospital B. Hospital B later outsourced the operation to Hospital C and it was done on 30 January 2025.

Referral in November 2023

17. Mrs S complains the Trust made a referral to Hospital A in November 2023 for revision knee surgery. She says the referral should not have been made because Hospital A was not contracted to do revision knee surgery.

18. The NHS Patient Choice framework says patients in England can choose where to have their medical treatment, including having NHS treatment in a private hospital. These choices apply at the point of referral to providers that have an NHS contract to provide the service the patient needs.

19. Hospital A provides NHS services to the Trust through this framework. We have seen a copy of the Trust’s contract with Hospital A for the period 1 April 2023 to 30 September 2024. It says:

the Trust will: • carry out the initial assessment • transfer care to another provider

the provider will: • carry out new patient assessment • request investigations as appropriate • offer intervention as appropriate.

20. The contract also says: • the provider will deliver secondary care expertise for referred patients with hip and knee conditions • specialised commissioned services are out of scope • condition and treatment exclusions include those services or treatments commissioned by NHS England under the heading of specialised commissioning.

21. The Prescribed Services Manual says all knee revision joint replacements come under specialised commissioning.

22. Mrs S attended an appointment with an APP at the Trust’s community knee clinic on 2 November. The APP recorded Mrs S said her left knee had deteriorated following a fall about four months ago. An X-ray showed Mrs S had severe left knee osteoarthritis lateral compartment. The lateral compartment is the outer side of the knee joint between the thigh bone and shin bone, and osteoarthritis happens when the cartilage that lines the joints is worn down and the bones rub against each other. Mrs S also told the APP:

• she had a left knee replacement in 2002 • her knee had gradually got worse over time • her walking was limited to about half a mile, and she had pain when she crossed her legs and with prolonged standing • her knee gave way frequently with associated pain • the pain woke her twice a night • she was taking naproxen, which is an anti-inflammatory drug used to relieve symptoms of arthritis, including osteoarthritis.

The APP examined Mrs S and noted the movement in her left knee was limited, and she felt pain when her knee was pressed. They said Mrs S was keen to proceed with a total knee replacement and had chosen to be referred to Hospital A for a further opinion.

23. We can see Mrs S had in fact already had primary knee replacement surgery in 2002. This means the surgery she was being referred for was revision knee surgery. We explained earlier that revision knee surgery comes under specialised commissioning and is not NHS funded under the Trust’s contract with Hospital A.

24. The Trust referred Mrs S to Hospital A through e-RS the same day for ‘an opinion on a total knee replacement’.

25. e-RS is an online referral and booking tool which is used by referrers to create and send an electronic referral to provider clinicians (such as consultants) in secondary care. e-RS guidance says service providers are responsible for describing and publishing in e-RS all services which accept referrals from primary care clinicians. This enables referrers to search for appropriate services for their patients. Information should contain enough detail to enable the referring clinician to select appropriate services for their patients. When a referrer clicks on the service name, information such as the conditions treated, procedures performed, and exclusions is displayed on screen.

26. On e-RS, Hospital A listed its exclusion criteria as:

• any patient under the age of 18 years • any patient who is grossly obese with a body mass index greater than 40 • any patient with an ASA score (a classification system used to assess a patient's overall health before surgery) higher than 3 • a patient who has an unstable mental condition and is receiving psychiatric treatment • no anterior cruciate ligament.

27. We can see Hospital A did not include revision surgery on its exclusion list.

28. e-RS guidance says inappropriate referrals should be redirected to a more appropriate alternative service if one can be identified or rejected back to the referrer where the referral is clinically inappropriate, with clear information as to why it was rejected.

29. Mrs S’s referral was accepted by Hospital A. We explained earlier however that knee revision surgery was not in its contract with the Trust.

30. On 24 November, Mrs S had an appointment with a consultant orthopaedic surgeon from Hospital A. The surgeon wrote to her on 5 December and said their examination showed ‘marked crepitus, effusion and synovitis’ which refers to cracking or popping sounds, fluid build-up and inflammation. They said Mrs S was in a lot of pain and discomfort and they had waitlisted her for a left revision of a partial to total knee replacement.

31. On 18 June 2024 a pre-assessment manager from Hospital A called Mrs S and told her the knee revision surgery scheduled for 24 July could not be done at Hospital A because revision surgery was not included in its contract with the Trust. We will go on to look at events from 18 June in the next section of this report.

32. We asked the Trust if there was any part of the referral process where the referrer would be expected to identify knee revision surgery is not funded under its contract with Hospital A before a referral is made. The Trust told us there is none and it relies on the e-RS exclusion criteria.

33. Hospital A is responsible for the information available to referrers on e-RS. It did not include revision surgery as one of the exclusion criteria even though revision surgery was excluded in its contract with the Trust. This would have stopped the Trust making the referral in the first instance. We can also see the Trust referred Mrs S for an opinion about surgery, rather than surgery itself. We think this means when the consultant orthopaedic surgeon assessed Mrs S on 24 November 2023, Hospital A had a further opportunity to reject the referral at an early stage.

34. Based on the information we have seen, we consider the Trust acted in line with applicable guidelines and standards when it referred Mrs S to Hospital A.

Delay in re-referring

35. Mrs S complains that from 18 June 2024 the Trust delayed re-referring her to a new provider for knee surgery.

36. We explained earlier that inappropriate referrals should be redirected to a more appropriate alternative service if one can be identified, or rejected back to the referrer.

37. We looked at Hospital A’s records during our investigation. We can see it did not refer Mrs S’s case back to the Trust through e-RS on 18 June, when it first realised it could not do her surgery. Mrs S did however send an email to the Trust the same day and asked someone to call her to discuss the situation and what would happen next.

38. A member of staff from the Trust called Mrs S on 19 June and recorded they offered to refer her to East Surrey Hospital or Princess Royal Hospital. Mrs S said although she knew the consultant orthopaedic surgeon from Hospital A worked there, she was not keen on East Surrey Hospital. She said she would think about it and email the Trust as soon as possible so her referral could be redirected.

39. We cannot see that Mrs S contacted the Trust with this information following the call. However, records show she was in ongoing contact with Hospital A who told her it was trying to seek a resolution to the matter. Specifically, it was making enquiries with the NHS commissioning body to see if funding could be agreed for the operation to be done at Hospital A.

40. A clinical practitioner from the Trust called Mrs S on 2 July. Mrs S told them she hoped the commissioning issue would be resolved so the surgery could go ahead at Hospital A. The clinical practitioner said this was not something they could change and told Mrs S they would source somewhere to refer her to and see if they could adjust the timeline to take the delay into account.

41. The clinical practitioner called Mrs S on 9 July. Mrs S said she was still in discussion with Hospital A. The clinical practitioner said they acknowledged this but wanted to ‘support a surgical pathway’. Mrs S asked the clinical practitioner for waiting times of other providers and they said they would try and source this information. They noted however their overall impression was that due to her ongoing discussions with Hospital A, Mrs S was expecting Hospital A to do the surgery.

42. On 15 July the Trust’s Head of Contracts sent an email to Hospital A and said they could not guarantee funding for Mrs S’s surgery. Hospital A had two options, to undertake the surgery at risk or refer it to an alternative provider. They said if Hospital A chose not to undertake the procedure, transfer to an alternative provider would be Hospital A’s responsibility and the referral should not be sent back to the Trust.

43. Despite this email, Hospital A sent an email to the Trust on 18 July and said because Hospital A excluded revision knee surgery for NHS patients it was discharging Mrs S back to the Trust’s care so she could be re-referred to a service that could provide this procedure.

44. We can see this contradicted the information in the Trust’s email of 15 July which said Hospital A was responsible for the re-referral. We think on receipt of the email from Hospital A, the Trust should have contacted Hospital A to clarify which organisation was responsible taking the referral forward. We cannot see any record it did.

45. We think that as the most recent communication from Hospital A said it had discharged Mrs S back to the Trust’s care, and in the absence of the Trust clarifying this, the date from which the Trust became responsible for the re-referral is 18 July.

46. We can see the Trust did not take any action to progress a re-referral from 18 July.

47. Hospital A sent a complaint response to Mrs S on 2 August. It said there were missed opportunities when it might have identified the referral was for revision surgery and apologised. It also said Mrs S had told it she had been contacted by the Trust regarding a possible referral to another provider and she was trying to ascertain which provider had the shortest waiting list.

48. We can understand therefore why Mrs S was of the view the Trust would be dealing with her re-referral.

49. On 16 September Mrs S sent an email to the Trust and said she had heard nothing about a re-referral since the call on 9 July. She said Hospital A told her the consultant orthopaedic surgeon could undertake revision knee surgery at Hospital B. It would make sense for the Trust to refer her to Hospital B and ask for it to be escalated.

50. Instead, on 23 September, Mrs S wrote to the consultant orthopaedic surgeon at Hospital B herself. She asked if they could liaise with their secretary to contact the Trust and arrange the referral to Hospital B.

51. A member of staff from the Trust sent an email to Mrs S on 26 September. They said they were trying to contact Hospital A for an update on her referral. They would contact her when they had further news.

52. We explained earlier that Hospital A returned Mrs S’s case to the Trust on 18 July. Its failure to clarify which organisation was responsible for the referral at that time means no re-referral had yet been completed.

53. A member of staff from the Trust called Hospital B on 2 October. Hospital B told them it had waitlisted Mrs S for surgery on 1 October in accordance with her original referral date in 2023.

54. From the evidence we have seen, we think this referral was made as a direct result of Mrs S’s letter of 23 September, rather than a referral made by the Trust.

55. We also think this means from 1 October the responsibility to progress Mrs S’s surgery lay with Hospital B. Hospital B later outsourced the surgery to another provider, Hospital C, and it was done on 30 January 2025. We cannot consider this period because Mrs S has not complained to that Trust and received a response. Any complaint about Hospital B is therefore premature.

56. RTT guidance says patients have a right to start consultant-led treatment within 18 weeks of referral or request an offer of alternative providers that can start their treatment sooner. In line with this guidance this means, if a referral was made to a provider on 15 November which was able to do Mrs S’s surgery, it should have been done by 20 March 2024. The surgery was done on 30 January 2025. This means there is a delay of 45 weeks and two days, the difference between 21 March 2024 and 30 January 2025.

57. We considered this delay in more detail. We explained earlier we do not think the Trust is responsible for the period from 21 March to 18 July 2024 (17 weeks and one day). This is because Hospital A should have rejected the referral in November 2023. We also do not think the Trust is responsible for the period from 3 October to 30 January (17 weeks and one day), because the referral was with Hospital B during this time.

58. We do however consider there is a failing by the Trust. This is because it could have re-referred Mrs S to a new provider as early as 18 July. The referral was made on 1 October which means the Trust is responsible for 11 weeks of the overall delay. We think this part of the overall delay was avoidable. We also think the Trust’s delay put Mrs S into a position where she felt her only option was to pursue a new referral herself.

Impact

59. We can see from the Trust and Hospital A records that in November 2023 Mrs S was suffering pain due to her knee condition, it was affecting her day-to-day life and was severe enough for the consultant orthopaedic surgeon to recommend knee replacement surgery. She was already taking medication in November to help alleviate her symptoms.

60. Mrs S told us while she was waiting for her operation, she was in considerable pain which woke her most nights and needed to take opioid painkillers daily. Her walking was limited and bending her knee was impossible due to swelling, pain and locking. She was unable to make plans, and her life was put on hold. She says her knee deteriorated significantly between November 2023 and January 2025. The severe pain and immobility improved following the surgery.

61. Taking into account the pain and inconvenience her knee was causing in November 2023, we think this would at the very least remain at the same level during the following 14 months until the surgery was completed. Mrs S provided evidence to show the deterioration of her knee and the increase in pain during those months.

62. We also recognise the frustration the Trust caused Mrs S because it did not re-refer her to another provider as she was expecting. We can understand why she felt she needed to take it upon herself to contact Hospital B when the Trust had not made a referral over two months since Hospital A returned her case. We understand the stress and inconvenience this will have caused her.

63. We can see in the Trust’s complaint response it acknowledged there was confusion between it and Hospital A about which organisation was responsible for the re-referral. It said the breakdown in communication led to a delay of three and a half months in Mrs S’s referral being transferred to Hospital B, and she instigated the referral herself. It apologised for the delay in Mrs S’s care, and the inconvenience and stress caused. It identified key learning points, specifically that clarification of responsibilities of onward referrals should be agreed by both parties involved.

64. Mrs S told us to put matters right she wants service improvements and financial remedy.

65. We can see the Trust apologised for the delay and identified key learning points about communication between it and other providers. We are satisfied with the action taken by the Trust to apologise and make service improvements. A financial remedy has not been considered by the Trust. We therefore do not think it has done enough to put right the injustice caused to Mrs S by the avoidable 11-week period of pain due to its service failures, and we make recommendations below to address this.

1. We have carefully considered Mrs S’s complaint and thank her for bringing her concerns to us. We understand this has been a challenging time for her and recognise the distress this has caused.

2. We have identified no failings by Sussex Community NHS Foundation Trust (the Trust) when it referred Mrs S to a private provider, Hospital A, in November 2023.

3. We have found failings by the Trust in its delay in making a new referral to a hospital that would be able to do the revision knee surgery. We think the delay in making a new referral prolonged the time Mrs S suffered knee pain and the impact on her ability to go about her normal day-to-day activities.

4. We therefore partly uphold the complaint and recommend the Trust pay Mrs S £600 in recognition of this.