Summary: Mrs B complained about the failure of the Council, the Integrated Care Board (ICB) and two NHS Trusts to assess her needs properly and provide her with the care and support she was entitled to when she left hospital. We found fault in the way the Hospital Trust planned Mrs B’s discharge from hospital. The NHS Trust working on behalf of the Council did not share an assessment with Mrs B. The Council and the ICB did not meet their joint statutory duties to provide aftercare to Mrs B for about three months. The faults had adverse impact on Mrs B’s physical and mental wellbeing and her ability to maintain her dignity. The organisations have agreed to our recommendation and will apologise to Mrs B, make an acknowledgement payment, and improve their processes relating to arranging and providing aftercare.

The complaint

1. The complainant, who I shall refer to as Mrs B, complains that Staffordshire County Council (the Council) and NHS Staffordshire and Stoke-On-Trent Integrated Care Board (the ICB) failed to ensure she was provided with the care and support she was entitled to in line with section 117 of the Mental Health Act 1983 following her discharge from hospital in July 2021. Mrs B’s representative says the Council and the ICB failed in their statutory duties. The Council, North Staffordshire Combined Healthcare NHS Trust (the Hospital Trust) and Midlands Partnership NHS Foundation Trust (MPFT) responded to a complaint because of shared responsibility relating to the hospital discharge and assessment process. The Council’s complaint investigation found Mrs B did not receive the formal care and support to meet her eligible aftercare needs and this was likely to have resulted in increased carer’s strain to her husband Mr B.
2. Mrs B’s representative says although the Council provided a remedy for Mr B it and the ICB did not properly consider the impact the fault had on Mrs B such as when she became increasing unwell leading to her readmission to hospital in October 2021.
3. To put things right Mrs B would like the organisations complained about to provide a financial remedy, apologise to her and act to improve.

Back to top

The Ombudsmen’s role and powers

4. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
5. 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).
6. 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.
7. 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)

Back to top

How I considered this complaint

8. I have considered:
• information provided by Mrs B’s representative with her complaint;
• information provided by the organisations complained about in response to my enquires; and
• the law and guidance relevant to this complaint.
9. All parties had an opportunity to respond to drafts of my decision.

Back to top

What I found

Law and guidance relevant to this complaint

10. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Usually three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in Mental Health Act detentions and another doctor. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
11. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
12. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
13. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
14. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
15. Section 17 of the Mental Health Act 1983 allows for certain patients who are detained under the Mental Health Act to be granted 'leave of absence' from the hospital in which they are detained for a specified or indefinite period subject to conditions specified in their leave care plan.
16. The MHA 1983 Code of Practice (2015) shows professionals how to carry out their responsibilities under the MHA and provide high quality and safe care.
17. The Council, the ICB, the Hospital Trust and MPFT have practice guidance in place which sets out their responsibilities for section 117 aftercare. For section 117 cases, the Council takes the lead on both the assessment under the Care Act 2014 and for sourcing and commissioning support or a placement based on a person’s assessment of need.
18. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils.  Subsection 5 of section 75 says the NHS and councils remain liable for the exercise of their own functions.  
19. There was a section 75 agreement in place between the Council and MPFT at the time of events complained about. MPFT completed Care Act assessments and support plans on behalf of the Council. It did so for Mrs B in this case.
20. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Act requires all councils - and other bodies carrying out public functions - to respect and protect individuals’ rights.
21. The Ombudsmen’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsmen can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.

Background

22. Mrs B went into hospital in May 2021 under the terms of section 2 and then section 3 of the MHA. In July Mrs B requested to have section 17 leave and was seen by the Hospital Trust’s Outreach Team.
23. The Hospital Trust determined that Mrs B was an appropriate candidate for an early supported discharge because she was high risk of catching a virus while in hospital due to her complex physical health needs. Her husband, Mr B supported the plan for Mrs B to have leave.
24. Mrs B was seen on the ward on 14 July by a doctor who discussed a plan for her discharge. This was not a formal section 117 discharge meeting. The Hospital Trust planned for Mrs B to have section 17 Leave until a community treatment order (CTO) was in place with a long-term plan for a nurse to administer her medication in the community.
25. A social worker was not allocated at the time and the Council said it told Mr B one would be allocated in due course. It said he agreed to provide care in the meantime. A telephone note on the same date from the social work duty team said Mr B had come to realise he could not manage his wife’s needs alone and asked for assistance by way of formal care. Mrs B started her home leave on
    14 July.
26. The Hospital Trust’s occupational therapist completed a home assessment on
    14 July when Mrs B started her home leave. The assessment noted Mrs B found it difficult to go up and down the stairs and she reported she had almost fallen when going up the stairs. The assessment said Mrs B “lives upstairs” and could mobilise short distances using furniture to aid mobility when transferring from the bed to the commode. The assessment summarised that Mr B supported Mrs B and provided her with informal care with nearly all her daily living tasks.
27. MPFT completed a Care Act assessment on behalf of the Council over the telephone with Mrs B and Mr B on 19 July. MPFT’s officer noted Mrs B needed formal domiciliary care to meet her needs and to prevent Mr B from experiencing carer’s breakdown. At the time of the assessment Mr B said he was struggling in his role as carer.
28. MPFT’s assessment noted that Mrs B had two or more eligible needs in accordance with the Care Act arising from a combination of physical and mental health issues. The assessment recorded “request for package of domiciliary care to include 3 x calls per day to support [Mrs B]”. The Council also completed a pen portrait document which marked the priority for the care package as urgent to start from 20 July.
29. MPFT’s officer sent a referral to the Council’s brokerage service so the service could find a suitable care provider to deliver Mrs B’s eligible care package. The Council said it was difficult to source a care provider in the area where Mrs B lived.
30. The Hospital Trust’s Outreach Team completed an intervention plan setting out what support the team would provide to Mrs B while she was on leave. The need identified was to monitor her mental health and risks. The plan confirmed
    Mrs B would be placed on a CTO.
31. The Hospital Trust said outreach support continued daily until 22 July and then reduced to every other day. The Outreach Team planned to discharge Mrs B from its service at the beginning of August. This happened on 5 August as Mrs B had no acute mental health need.
32. Mrs B was discharged from section 3 around 11 August when it was confirmed the CTO was in place. At this point Mrs B did not have a formal domiciliary care package in place.
33. Mrs B’s representative said she experienced decline in her mental and physical health from the date she was discharged home. A nurse sent an email to representatives of the Trust in October following a visit to Mrs B. The email set out concerns the nurse had regarding the decline in Mrs B’s mental and physical health. Mrs B had lost weight and Mr B reported that she had not eaten much in the last week. The nurse also noted that Mrs B’s presentation indicated mental decline.
34. Mrs B’s CTO was revoked and she was recalled to hospital a few days after the visit from the nurse.

The complaint to the Council

35. Mrs B’s representative complained to the Council in November 2021. The complaint referred to the Council’s failure to fulfil its joint statutory duties with the health authority to provide section 117 aftercare for Mrs B. The complaint said this failure caused Mrs B to become increasing unwell and frail, leading to her recall and revocation of the CTO within a few weeks.
36. The Council responded to the complaint and said a detailed discharge plan was created for Mrs B on 14 July 2021. The Council said it had tried to source a care package from 22 July on at least seven occasions but after contacting care providers it could not source a care agency. It said this was due to market capacity at the time. It said it had considered other options, but these were unsuitable due to the carer’s strain Mr B was under.
37. The Council apologised and offered a payment of £1,000 in recognition of the additional stress put on Mr B during the time Mrs B was without formal care and support.

Findings

38. The Council and the ICB do not dispute that Mrs B was entitled to section 117 aftercare when she was discharged in August 2021. The MHA code of practice says, “after-care is a vital component in patients’ overall treatment and care. As well as meeting their immediate needs for health and social care, after-care should aim to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital.”
39. The MHA code of practice also says the planning of aftercare should start as soon as the patient is admitted to hospital. Health authorities and councils should take reasonable steps to identify appropriate after-care services for patients in good time for their eventual discharge. The code also says, “aftercare for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the care programme approach [CPA]”.
40. Mrs B’s legal representative wrote to the Hospital Trust to highlight that they had not been notified of any section 117 aftercare planning meeting. The letter said Mrs B would need support at home especially with meals and around mealtimes. I have not seen evidence to show the Hospital Trust replied to the letter or acted to hold a formal section 117 aftercare planning meeting in line with the CPA.
41. The joint practice guidance in place between the authorities says, “discharge planning should be considered as soon after admission as is possible… The muti-disciplinary team should ensure after-care enables the individual to learn new skills, maximises independence and prevents readmission to hospital. In addition, the MDT will consider with the individual and their families/carers and advocates (where appropriate) which aspects of the individual’s needs should be met under Section 117 and which come under other legislation which must be specified in the care plan.”
42. The Hospital Trust should have been aware of the practice guidance established in its local area. I have not seen evidence to show the Hospital Trust acted in line with the MHA code of practice or the practice guidance agreed between the authorities when planning and arranging Mrs B’s discharge from hospital. For example, I have not seen evidence to show the Hospital Trust started to plan
    Mrs B’s aftercare earlier than when she started section 17 leave. I have not seen evidence to show it ensured a care plan was completed in line with the CPA. This is fault.
43. Poor discharge planning by the Hospital Trust is likely to have contributed to
    Mrs B being discharged from hospital without suitable formal care and support in place to meet her section 117 needs. This is because a CPA care plan is likely to have led to “identifying appropriate aftercare services in good time” as specified in the code of practice.
44. MPFT received a referral to complete a Care Act assessment on the same date when Mrs B started her home leave. It is likely that Mrs B should have been assessed in line with the CPA rather than the Care Act. In any case the Care Act assessment was completed six days after the referral was made. The assessing officer sent a referral to the Council’s brokerage service to source a care package. I have not found evidence of fault in the steps MPFT took to assess
    Mrs B under the Care Act. However, its officer failed to share a copy of the assessment with Mrs B, Mr B or any other representative. This is fault.
45. The Council and the ICB had statutory responsibility to provide aftercare to Mrs B in line with section 117. Based on the joint agreement in place at the time the Council confirmed it took the lead for completing the assessment and sourcing a care provider for Mrs B. However, it is unlikely this arrangement absolved the ICB from its joint statutory duty it should have been aware of.
46. The Council could not source a care agency in Mrs B’s area despite making several enquiries between July and October 2021 with different care agencies. This is not evidence of administrative fault but does amount to service failure by the Council. The service failure by the Council meant it and the ICB did not meet their joint statutory duty to provide Mrs B with section 117 aftercare for over two months.
47. The practice agreement in place between the organisations says, because of the statutory requirement for section 117 aftercare, “a record should be maintained of all individuals entitled to section 117 and any aftercare services which are provided under that section”. It also says, a named worker should elicit acceptance of responsibility from the ICB and the Council for the relevant aspects of the care plan.
48. In the complaint to the Council Mrs B’s representative had said clinicians had identified Mrs B’s eating and drinking difficulties as being “wholly symptomatic of her mental disorder”. The complainant also said failure by the Council and the ICB (then clinical commissioning group) had led to revocation of the CTO and
    Mrs B’s recall to hospital under section 3 of the MHA.
49. The visit from the nurse in October clearly outlined the issues Mrs B had been experiencing and the nurse’s serious concerns relating to the decline in Mrs B’s physical and mental health. After the CTO was revoked and she returned to hospital the documentary evidence suggests Mrs B was then transferred to accident and emergency for treatment of her physical health and low body mass index.
50. When the Council dealt with the complaint from Mrs B’s representative it accepted it and the ICB had failed to fulfil their statutory duties. It apologised and offered £1,000 to acknowledge the additional stress put on Mr B during the time Mrs B was without formal support. The Council later apologised for any distress caused to Mrs B due to the delay in sourcing formal care and support.
51. The lack of formal support is likely to have had significant impact on Mrs B’s physical and mental wellbeing over a prolonged period. I have not seen sufficient evidence to show the Council and the ICB properly considered the impact the service failure had on Mrs B during the weeks she was without formal care and support.

Impact the lack of formal support had on Mrs B

52. Mrs B was unable to wash herself and was having a strip wash at the time of her assessment. She could not comb her hair or dress herself either. Mrs B had to wear continence pads day at night and had a commode. Mr B supported his wife where he could, but it is likely he struggled with his caring role as he was described as elderly with health problems of his own.
53. It is likely that Mr B experienced carer’s strain between July and October as highlighted in the Council’s complaint response. It is therefore likely, on balance, that this affected his ability to effectively provide care, complete specific caring tasks when supporting Mrs B.
54. Mrs B struggled to maintain her nutrition and the assessment notes a referral to a speech and language therapist. I have not seen evidence to show whether this referral was made or if it was made, whether it was followed up. On the evidence available now, there appears to be fault by the Council.
55. The assessment recorded Mrs B used a bowl to wash her face and hands and
    Mr B assisted her with some personal care and dressing. It is unlikely that Mr B could provide Mrs B with replacement care to the extent a paid carer was trained to. The needs assessment completed said Mrs B needed formal care arrangements to support her with managing personal care and her toilet needs. The lack of formal support in these areas is likely to have had an adverse impact on Mrs B’s ability to maintain her dignity.
56. Mrs B was in bed upstairs and the evidence available suggests she could not leave her bed, without difficulty nor could she access the rest of her property. The assessment from the occupational therapist and the Care Act assessment notes a referral for a stairlift. The OT assessment records Mr B’s view and he said it would be beneficial for Mrs B to “spend some more time downstairs and not be confined to the bedroom”. I have not seen evidence to show how the Council progressed Mr and Mrs B’s request for a stairlift. There is no evidence to show the Council and the ICB considered Mrs B’s confinement to her bedroom and any possible action which could be taken to give her access to the downstairs of her home in the interim.
57. Under the terms of Article 8 of the Human Rights Act, Mrs B had a right to respect for her family life. The evidence available now, suggests the Council and the ICB failed to have due regard for these rights. This is fault.
58. It is likely Mrs B remained confined to her bedroom with limited support to meet her needs for well over two months. I cannot say, on the evidence available, the situation caused Mrs B’s readmission to hospital. However, it is likely, on balance, that the situation caused by the faults had considerable adverse impact on her physical and mental health.
59. I cannot say what the outcome would have been if the Hospital Trust had ensured better discharge planning. Mrs B was at high risk of infection if she were to remain in hospital so the discharge date may still have been the same. However, a coordinated discharge and care planning in line with the CPA is likely to have highlighted risk factors such as lack of formal support. This could have led to a contingency plan being put in place to help mitigate any risks. Therefore, the Hospital Trust is at fault in this regard.

Improvements made by the organisations complained about

60. The Council said it opened its home care provider network to recruit additional care providers. It has created a pre-paid rota in difficult to serve areas in its area and coproduced a workforce strategy with the care market to improve recruitment and retention of staff as well as other action. The Council says these measures have resulted in its Brokerage Service target sourcing to timescale improving from 61% to 89%.
61. The Council’s Brokerage Service has introduced fortnightly liaison meetings to discuss individuals waiting for care. These discussions include a review of the person’s assessed care needs and any associated risks. Alternative interim solutions are discussed or actions to mitigate risks. Where there is a market deficit or an unmet need this is escalated to commissioners for support.
62. MPFT said it discussed the assessment process with the officer who assessed Mrs B and identified an area of learning relating to sharing assessments. Further discussion will take place between the officer and their manager.
63. The information provided by the Council and MPFT confirms the action they have taken to improve. This means it is not necessary to make further service improvement recommendations in these areas.

Back to top

Agreed Recommendations

64. The Council, the ICB, MPFT and the Hospital Trust have agreed to our recommendations. Within four weeks of our final decision:
• the Hospital Trust will write to Mrs B and apologise for the impact the failure to plan her discharge in line with the CPA had on arranging her overall care and support once she was back in the community.
• the Council will lead on discussions with the ICB, the Hospital Trust and MPFT to agree and arrange a collective shared payment of £2,000 to acknowledge the impact the faults are likely to have had on Mrs B’s physical and mental wellbeing and her ability to maintain her dignity for over three months.
65. Within two months of our final decision the Council, the ICB, the Hospital Trust and MPFT will take the following action:
• Remind their officers who deal with hospital discharge for people who are eligible for section 117 aftercare of the importance of following the guidance set out in the Mental Health Act 1983 code of practice.
• Remind their officers of the agreed process in place set out in their ‘Mental Health Act 1983 Aftercare Section 117 Responsibilities – Practice Guidance’ to ensure the hospital discharge process is adhered to.
66. Within six months of the final decision the Council will update the Ombudsmen on the protocol it is working on to ensure there is an escalation process in place to jointly review cases where there are issues with service delivery when a person has eligible section 117 aftercare needs.
67. The organisations should provide us with evidence they have complied with the above actions within the timeframe stated.

Back to top

Final decision

68. I have found fault causing injustice and uphold Mrs B’s complaint. The Council, the ICB, the Hospital Trust and MPFT have agreed to our recommendations, and this provides a suitable remedy for the injustice caused. I have completed the investigation.

Back to top

Investigator's decision on behalf of the Ombudsman