Decision : Upheld
Decision date : 03 Apr 2018
The Ombudsman's final decision:
Summary: The Ombudsmen find that the complainants’ son, Mr D, was caused significant injustice when the CCG and the Council failed to provide adequate support after his care provider terminated its contract in November 2015 and there was no contingency plan in place. The new provider did not meet all Mr D’s needs and his mental health deteriorated because of the lack of support. This culminated in him being admitted to hospital. Following his discharge he had to live with his parents for five weeks during which time they had little formal support and no carer’s assessment was carried out. This impacted adversely on Mr D’s well-being and that of his parents. The Council and the Trust delayed in transferring Mr D between teams which caused further distress and uncertainty and impacted on his support provision. The Ombudsmen recommend the CCG, the Trust and the Council apologise in writing to Mr D and pay a financial remedy to him and his parents.
- The complainants, whom I will call Mr and Mrs C, complain on behalf of their adult son, Mr D. They complain that Sheffield City Council (the Council), Sheffield Health and Social Care NHS Foundation Trust (the Trust) and NHS Sheffield Clinical Commissioning Group (the CCG) provided inadequate support under section 117 of the Mental Health Act 1983 after Mr D’s care provider terminated its contract in November 2015 and that there was no contingency plan in place for the termination of the contract with Company X.
- Mr and Mrs C complain that the Council delayed in:
- transferring Mr D from the Learning Disability Service to the Adult Autism Service and appointing an autism specialist social worker;
- appointing an advocate for Mr D;
- carrying out a reassessment of Mr D’s needs promised in January 2016; and
- investigating and responding to their complaints.
- adequately investigate the events of 18 May 2016 and the breakdown of the care package provided by Agency Y;
- consider the needs of the family. When Mr D’s support was withdrawn they were not asked if they were willing or able to care for him and no assessments were carried out; and
- properly communicate with Mr D and the family.
- Mr D was transferred from the Autism Service to the Mental Health Service in October 2016 without discussing this with him or with Mr and Mrs C. They say neither service wanted to take responsibility for his support package and he was left without adequate mental health support until December 2016 when responsibility for case management was returned to the Autism Service;
- professionals failed to consider Mr D’s autism when communicating with him;
- there has been no consistency in the professionals working with Mr D;
- the professional team cannot agree on Mr D’s diagnosis and medication.
- the Council disregarded Mr D’s right of choice in respect of his care and delayed in considering his request for a change of provider; and
- SAANS has failed to provide positive behaviour support to Mr D despite promising this.
The Ombudsmen’s role and powers
- 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). 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.
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
How I considered this complaint
- I considered information provided by Mr and Mrs C, the Council, the Trust and the CCG. I obtained clinical advice from an experienced learning disabilities nurse with additional qualifications in mental health and behavioural psychology and experience of supporting people with disabilities and autism, who is independent from these events. I took account of relevant law, policy and guidance.
What I found
- Section 117 of the Mental Health Act 1983 requires clinical commissioning groups and local authorities, in co-operation with voluntary agencies, to provide or arrange for the provision of aftercare to certain patients detained in hospital for treatment who then cease to be detained.
- Aftercare services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder). Their aim is to maintain patients in the community, with as few restrictions as are necessary, wherever possible.
- CCG’s and local authorities should interpret the definition of aftercare services broadly. For example, aftercare can encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs, if these services meet a need that arises directly from or is related to the patient’s mental disorder, and help to reduce the risk of a deterioration in the patient’s mental condition.
Care programme approach
- The Care Programme Approach (CPA) is the process by which mental health services says 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; a care plan to show how their needs will be met; and have the care plan reviewed by a multidisciplinary team (MDT).
The Care Act 2014 (the Care Act)
- The Care Act came into force in April 2015. It stresses the need for professionals to involve people as much as possible in decisions about them. It is supported by statutory guidance issued in 2014, quoted below. Councils can delegate their functions to other organisations but remain accountable for them.
- Under the Care Act, councils must assess the needs of any adult who appears to need care and support. The assessment must involve the person and their carer or any other person they want involved. It should consider how their needs affect their well-being and the outcomes they want to achieve. The assessor should be able to access support from social workers and occupational therapists. When the person has both health and social care needs, councils should work with the NHS to carry out a joint assessment. When the officer carrying out the assessment does not have enough knowledge of the person’s condition, they must consult someone with expertise so they can “ask the right questions relating to the condition and interpret these appropriately”. Assessments must happen reasonably quickly and the person must be kept informed of progress. The person must be given a copy of their completed assessment. When the Council decides the person has eligible needs for care and support it must meet those needs.
- The Care Act gives councils a legal responsibility to provide a care and support plan showing how eligible needs will be met. When a person is under the CPA, organisations should link the care plans together to “set out a single, shared care pathway”. The care and support plan should include a personal budget which is what the Council has worked out it will cost to arrange the necessary care and support. The person must be as involved as possible in care planning and should get a copy of the completed plan.
- Think Autism is a Government strategy for improving the lives of people with autism. Statutory guidance (2010) says basic autism training should be available to all staff working in health and social care. Those in key roles should have specialist training.
- NICE (2012) Autism Spectrum Disorder in Adults: Diagnosis and Management requires that care plans take account of the impact of impairments of communication, socialisation and imagination which are the core difficulties associated with autism spectrum disorder.
- NICE Autism Quality Standard 2014 recognises that all health and social care practitioners involved in working with, assessing, caring for and treating people with autism should have sufficient and appropriate training and competencies to deliver the actions and interventions described in the quality standard.
The teams responsible for Mr D
- The Learning Disability Service (LDS) is a multidisciplinary team made up of health professionals employed by the Trust and social care professionals employed by the Council.
- The Community Mental Health Team (CMHT) is a multidisciplinary service made up of four teams: an Access Team for assessment and short-term interventions; a Recovery team to support people with long-term mental health disorders; a Home Treatment Team for short-term intensive interventions; and an Early Intervention Service for young people.
- The Adult Autism Team (AAT) is the Council’s social work team which supports people with autism spectrum disorder (ASD).
- The Sheffield Adult Autism and Neurodevelopmental Service (SAANS) is a multidisciplinary service commissioned by the CCG which specifically supports and provides diagnostic services for adults with autism. Mr D’s health and social care needs are currently supported and coordinated by the service.
- Mr D is a young man with ASD and mental health problems. Since 2010 he lived in his own flat supported by a care provider, Company X, who support people on the autism spectrum.
- Mr D has complex needs and received 24 hours one to one support seven days a week. He needs support to maintain his mental and physical health, including arranging health appointments, support to attend those appointments and prompts to remind him to take his medication. He also needs support to cook healthy meals, help him make decisions, maintain his tenancy, go shopping, respond to letters and pay bills. He also needs reassurance and support to help manage his anxieties and communicate with others.
- Mr D is subject to S117 aftercare as he was previously detained under the Mental Health Act 1983. The aftercare is funded equally by the Council and the CCG. Mr D receives direct payments which he uses to pay his care provider.
- Mr D was subject to the CPA but was discharged in 2012.
- In November 2014, following a lengthy period of mental health stability, Mr D began experiencing a deterioration in his mental health. He was not looking after himself as well as usual, not sleeping and becoming sad and irritable.
- A crisis assessment was carried out in January 2015. Mr D had started exhibiting unusual behaviour ranging from refusing his medication to threatening staff and refusing to accept support from certain individuals. He repeatedly refused support from most of Company X’s regular staff and was being supported by agency staff (Agency Y). Staffing levels were increased to 2:1 as a temporary measure because of threats to staff.
- Dr N continued to monitor Mr D’s mental health. She referred him to SAANS for counselling in April 2015. SAANS declined the referral because Mr D has a learning disability and was not therefore eligible. In June 2015 Dr N referred Mr D to Learning Disability Psychology to address his significant impairment in social understanding and communication because she considered these factors relevant to the decline in his mental health. LDS Psychology decided he did not meet the eligibility criteria because his main diagnosis is Asperger’s with a mild learning disability. They referred him back to SAANS as they considered his needs would be best met by them. In July 2015 SAANS wrote to Mr D confirming he was on the waiting list for an appointment.
- In September 2015 Mr D’s LDS social worker asked that he be transferred to the CMHT. The suggestion was that he be transferred to Mental Health Psychiatry and to the mental health social work team. The mental health social work manager agreed Mr D’s needs could best be met by the CMHT rather than the LDS but said it would need to be a joint transfer with psychiatry and health as well as social care. The LDS considered Mr D’s primary needs were not around learning disability but mental health. The LDS social worker requested the agreement of Mr D’s consultant psychiatrist from the LDS (Dr N) to transfer him to the mental health service. She agreed subject to Mr D’s agreement.
- In October 2015 there was a CPA review. Mr D had been discharged from the CPA process in 2012 following a considerable period of mental-health stability. But, because of his recent mental health deterioration, professionals decided to restart the process to manage risk and attempt to engage Mr D with services and support Company X to deliver his care.
- In November 2015 Mr D requested a new social worker as he wanted one who understood Asperger’s Syndrome. Work was being done to transfer Mr D to the Adult Autism Team (AAT) from the LDS.
- At this time Company X withdrew support because of Mr D’s refusal to accept support from most of its staff. Another company took over but withdrew support within a short period because Mr D refused support from their workers. Although there was a 24-hour support package in place, there were frequent gaps in the service because of staffing issues and because Mr D would only accept support from two workers from Agency Y.
- The plan was to coordinate Mr D’s care under the CPA but he did not want to engage in this process. He had become selective in which members of the clinical and social work teams he would work with. By December 2015 he was refusing to engage with anyone except Dr N. She asked SAANS whether they could offer any help.
- In December 2015 Mr D’s care and support was reviewed. Agency Y was still providing support but there were frequent gaps. The Council had found a new support provider who would continue to use the two Agency Y workers that Mr D was happy with until a full support service was available.
- SAANS telephoned Mr D to offer him an appointment but he declined because he did not understand what they were offering.
- In January 2016 Mr D requested respite care because he was anxious about the gaps in support. An example of this was that he was without support from 10 am on Friday 9 January until 3 pm the following day and from 10 am on Sunday 11 January until 10 am the following day.
- Mr D was transferred from the LDS to the AAT in January 2016 and an autism specialist social worker was allocated to him.
- Shortly before the transfer the LDS reviewed Mr D’s support plan and concluded it was not working. Agency Y could not provide 24 hour support seven days a week so the LDS had set up a plan for four days and four nights support. This meant Mr D was without support for three days and three nights each week. Although Agency Y had managed to cover some shifts above the agreed package Mr D could not cope with this amount of time without support because of his extreme anxieties. He became withdrawn, verbally aggressive and at risk of self-neglect and harm to himself and others. The review concluded Mr D’s support plan needed changing to 24 hours a day seven days a week.
- A CPA meeting was held on 22 January 2016 to discuss current and future support. The AAT social worker was in the process of assessing Mr D’s eligible needs. The notes of the meeting show the social worker thought Mr D only required support four days a week. The LDS had not told him Mr D required support seven days a week. The notes state that, initially, Agency Y also thought Mr D only required four days support. Mr D said that, because of the recent lack of support, he had had to go into respite care and did not like it. He did not want this anymore and wanted support at home.
- On 18 February 2016 the AAT social worker made a referral to SAANS to provide Mr D with help to gain coping strategies, reduce anxiety and low mood and to provide support with motivation and engagement with services.
- On 9 March 2016 Dr N wrote to the CMHT to ask it to consider taking over Mr D’s care from Learning Disability Mental Health Services.
- In April 2016 Mr and Mrs C made a referral to an advocate for Mr D. SAANS had still not allocated Mr D’s case to a worker.
- Lack of support was causing Mr D to feel worried and he was threatening to self-harm and refusing his medication. He asked his social worker to look for an alternative care provider.
- A professionals meeting arranged by Dr N’s team was held on 22 April 2016 to discuss and agree future pathway and appropriate services taking account of Mr D’s ASD, bipolar disorder, risk and the fact he does not have a learning disability and does not wish to be supported by the LDS.
- The LDS completed a referral to CMHT on 26 April 2016. Mr and Mrs C say no information was given to them or Mr D. They thought a transfer could only take place through the CPA process.
- The Council found another care provider, Company R, but Mr D decided he only wanted support from Agency Y workers even though there would be gaps in support.
- On 11 May 2016 the social worker contacted the advocacy service for an update. Mr D was still on the waiting list.
- On 18 May 2016 Agency Y withdrew support after a support worker called the police alleging Mr D had threatened him. Mr D denies this. The community psychiatric nurse (CPN) advised the police to take Mr D to Accident and Emergency to see the duty psychiatrist. He was admitted to hospital where he remained for five days even though ward staff said there was no medical reason for him to remain on the ward.
- On 19 May 2016 Dr N questioned Mr D’s diagnosis of bipolar disorder and said he showed all the characteristic features of dissocial personality disorder.
- On 20 May 2016 the AAT contacted Dr N stating that, at the MDT meeting the previous week, it was agreed all agencies would review the risk assessments and reconvene on 27 May 2016 to discuss but, following the recent incident, AAT had completed its own risk assessment. It concluded there was risk to Mr D because of his behaviours/reactions and to support workers working alone at his flat. It said it could not provide care at Mr D’s flat because of health and safety concerns for the support workers and it could not place Mr D in respite because this would place support workers/other residents at risk. AAT explained it could not be involved in Mr D’s discharge from hospital as the primary concerns related to mental health and not ASD. It said Mental Health Services therefore needed to assess him and arrange any support or placement.
- On 23 May 2016 the CMHT social worker contacted the AAT social worker asking why Mr D was still on the ward. The AAT social worker explained that, because of the risk to workers, the AAT could not provide support at home or respite until mental health assessments and a risk assessment had been completed. So Mr D was discharged to his parents’ home. Mr and Mrs C say Mr D was so distressed in hospital that they had no option but to take him home because the Council/Trust were not prepared to provide support. They say they were given no advice on risk.
- The AAT was trying to obtain advice from Dr N about a risk management plan and the appropriate agency to support Mr D.
- The same day Mr and Mrs C wrote to the Council saying they felt the current situation had arisen as a direct result of the inadequate support Mr D had been receiving since November 2015. They said they had had to provide a considerable amount of support since then which was having an adverse effect on their health and family relationships. They requested a carer’s assessment.
- On 24 May 2016 the AAT social worker spoke to Mr D’s advocate who agreed to make an initial visit when he was settled back home.
- Social workers requested funding for Company R to provide 24-hour support for Mr D in his flat.
- On 25 May 2016 Mrs C sent an email to Dr N stating “we are desperate for some support”.
- A professionals meeting was held on 27 May 2016. It was attended by: Dr P (the clinical director and consultant clinical psychologist), Dr N and Mr B (specialist nurse) all from the LDS; a clinical psychologist and occupational therapists from SAANS; and social workers and a manager from the AAT. An updated risk assessment was produced which contained detailed information about historical events. The meeting acknowledged Mr D’s behaviour had been escalating, making it difficult for services to engage but all professionals had a responsibility to respond to his needs in line with their service specification and take account of the risks and needs identified. It was agreed the AAT would review Mr D’s care provision to ensure his needs and engagement difficulties were appropriately managed. It was also agreed the AAT manager would discuss a carer’s assessment with Mr and Mrs C.
- On 3 June 2016 Council officers met with Mr and Mrs C. They offered two hours’ 2:1 support per day at Mr D’s home and weekly meetings with social workers. Mr and Mrs C asked for a temporary residential placement until support could be reinstated in Mr D’s flat. The Council said it could not do this because of the risk to workers.
- On 8 June 2016 there was an urgent MDT care planning meeting. Following the meeting Dr J (CMHT) recorded that professionals previously involved in Mr D’s care have questioned his diagnosis of bipolar disorder suggesting he has a co-morbid personality disorder in addition to ASD. He said the purpose of the meeting was to decide which service is best placed to provide further support in the community bearing in mind Mr D’s co-morbid mental health problems and risks.
- At the meeting it was agreed Mr D would be transferred to the Recovery Service within CMHT with a CPA to support transition and there would be input from SAANS. The Recovery Service would be able to offer long-term care coordination and management of mental health and risk in collaboration with other agencies. Dr N agreed to contact the Recovery Service to arrange a CPA and continue offering routine psychiatric input. Mr B would offer specialist nurse response until a robust transition via a CPA had occurred. Mr and Mrs C say this robust transition via a CPA did not take place and Dr N and Mr B did not continue offering routine psychiatric input to Mr D.
- The Council offered Mr D accommodation in a supported living unit for a month while assessments were carried out. The placement was offered subject to an assessment by the unit. The social worker gave the unit manager the AAT’s risk assessment and information about the recent incident and advised him to speak to Dr N for a professional opinion on how to manage Mr D’s mental health needs.
- Mr D had an initial appointment with SAANS on 16 June 2016.
- On 23 June 2016 Mr D went to stay in the supported living facility where he received 24 hour support.
- The Council had asked SAANS and CMHT to provide specialist assessments to inform the social care assessment of Mr D’s needs so appropriate support could be provided. SAANS completed an initial assessment in July 2016 and recommended Mr D receive support from first thing in the morning until bedtime every day but that this be gradually reduced as he became capable of spending more time alone. Dr J also assessed Mr D and agreed with Dr N’s opinion that he has a possible dissocial personality disorder.
- The AAT social worker recommended Mr D’s case be transferred to CMHT and that the case be managed under the CPA approach. The recommendation was because the social worker felt Mr D’s mental health status overrides the difficulties he has because of his autism.
- The AAT social worker completed an assessment and a new support plan for two to one support 24 hours a day seven days a week. On 25 July 2016 Mr D moved back to his flat with support from Company R. Mr and Mrs C say Company R provided 1:1 support, not 2:1 support.
- Dr N referred Mr D for a psychiatric assessment to explore dissocial personality disorder and review his bipolar diagnosis. Mr and Mrs C say this assessment has never happened. They have been asking for an independent autism specialist to advise on diagnosis, medication and appropriate support for some time.
- In October 2016 Mr D’s case was transferred to the CMHT Recovery Team and he was allocated a mental health worker.
Inadequate S117 aftercare provided by the Council and the CCG from November 2015
- Mr and Mrs C say there was no contingency plan in place for the termination of the contract with Company X. They say inadequate support was provided after the company terminated the contract in November 2015 both in terms of insufficient hours and the fact that the new provider was not an autism specialist. Agency Y was only able to offer four days support to Mr D so the family had to support him the rest of the time and were never consulted about this. When Company R was put in place in July 2016 Mr D had never met the support workers who arrived at his flat, they knew little about him and were unskilled, inexperienced and used to caring for the elderly. They say the Council failed to adequately monitor the support and take action when it was inadequate. They also say the incorrect transfer of Mr D’s case from the LDS to the AAT contributed to the problem.
- Mr D’s mental health began to deteriorate in November 2014 but there was no crisis assessment until January 2015. He was reinstated on the CPA in October 2015. I find that, if he had remained on the CPA throughout or if more had been done during this period, this may have avoided the breakdown of the contract.
- The CCG says responsibility for contingency planning lies with the council because the CCG delegates this function fully.
- The Council says it is not its practice to have a contingency in place for the termination of a contract for this type of support. It says it would place impractical expectations and financial constraints on a company to hold a package just in case. It expects providers to raise issues early so it can work with them and providers would normally continue with a package until the Council could introduce an alternative provider. It says the only realistic contingency in these situations are residential care options and/or adult placement shared lives which Mr D rejected.
- The Council says there is an issue with the number of providers it has who can pick up a support package quickly when it breaks down. But it accepts that, if there had been a clear contingency plan in place, or if the Council had started working with Mr D earlier, it may have been able to avoid needing to put an emergency package in place.
- The notice period for Company X to pull out was short. The Council says it normally works with providers to manage this and agree that the provider will not withdraw support until alternative support has been identified. But in this case Company X no longer had a contract with the Council because it was paid through direct payments so the Council did not have any control over the notice period.
- Mr D had complex needs and a substantial care package he relied on to meet his assessed eligible needs. Even when someone receives direct payments there should still be a contingency plan in place. I find there should have been contingency planning under the CPA or MDT planning. I would not expect the Council to hold a package in case care package failed. But it should have had a plan in place as to how it would deal with the situation.
- Although the CCG may have had a local agreement in place with the Council, it cannot delegate its S117 responsibilities. I therefore find fault by the Trust, the CCG and the Council in failing to have a contingency plan in place.
- The Council accepts the care available to Mr D from November 2015 was limited. It says it tried to secure alternative care but Mr D found the challenge of receiving new workers into his home sometimes too difficult because of his ASD and often refused support. The Council began searching for alternative providers on 3 November 2015 and says it offered Mr D a temporary respite placement but he declined. Only one provider put themselves forward. The Council the plan was for the two Agency Y workers Mr D was happy with to continue providing support and for the new company to introduce new workers over time. But Mr D refused all the new carers offered and was left with only the two agency workers. He did agree to some short stays in a residential supported living scheme with experience of supporting adults with autism.
- Mr D was entitled to 24 hours support daily to help him with arranging and attending health appointments, prompts to take his medication, cooking healthy meals, making decisions, shopping, paying bills and to help manage his anxieties and communicate with others. He did not receive this support. I therefore find the Council and the CCG are at fault. The lack of support caused Mr D a significant injustice. He suffered distress and anxiety which impacted on his behaviour towards others. He suffered low mood and became withdrawn and at risk of self-neglect/harm.
- The CCG says it was the Council’s responsibility to manage Mr D’s support. But it is the CCG’s responsibility to provide a patient with S117 aftercare in collaboration with the Council, to assess an individual’s needs and make suitable provisions, or to arrange for them to be provided with the appropriate provision. In practice, CCG’s tend to delegate care management for such patients to an NHS trust. But they remain accountable.
- The delay in transferring Mr D to the AAT between November 2015 and January 2016 was caused by the fact that Mr D did not have a stable support plan in place. Social workers were trying to make the situation as stable as possible before transferring him but this was difficult because he kept refusing support workers and would not speak to his social worker. Eventually the LDS decided to transfer him anyway because the situation had become untenable.
- The Council acknowledged in its response to Mr and Mrs C’s complaint that the delay in transferring Mr D to the AAT was unacceptable and apologised for this. It also accepts there was a delay in appointing an autism specialist social worker because it took longer than anticipated to identify a social worker who was compatible with Mr D after he was transferred to the AAT.
- I find the delay in transferring Mr D’s case from the LDS to the AAT also impacted on the Council’s ability to provide adequate support after November 2015. Professionals had decided Mr D was not suited to the LDS because he did not have a learning disability. I find it is likely a quicker referral to the AAT may have allowed better care planning and a more suitable package to be put in place.
- I find Mr D’s CPA/S117 aftercare plans were not in keeping with the standards of practice established in NICE guidance. They did not set out how the core difficulties (communication, socialisation and imagination) associated with ASD affect Mr D and did not provide details of required reasonable adjustments.
- The plans did not specify that Mr D requires support from an autism specialist provider or that he should receive positive behaviour support (PBS). This was fault. The care plan should have specified the requirement for a community care provider with expertise in autism. In addition, a functional assessment of behaviour should have been undertaken to determine the appropriateness of a PBS approach.
- It is unclear whether the social care providers from Company R had specialist knowledge, skills and training in autism. Mr D’s family felt care staff lacked autism specific knowledge and skills. There is also evidence that the SAANS team considered previous social care providers had not provided support that was well-planned/structured. This could well suggest a lack of awareness of the importance of the structure, planning and routine for people with ASD. SAANS, once they completed their assessment, offered support and training to future service providers in accordance with NICE guidance. Delay in accessing SAANS meant some aspects of Mr D’s care plan were less likely to have been informed by a correct understanding of the needs associated with his autism.
- I find it would have been helpful (and consistent with the provisions of statutory guidance on autism) to have specifically included the requirement for autism specific knowledge, skills and training in Mr D’s care plan and any specification for the support provider.
- It is not clear from the case file whether the mental health staff had received any form of autism awareness training as required by Department of Health 2015 statutory guidance for local authorities and NHS organisations to support implementation of the Adult Autism Strategy.
- Mr D’s care plans did not, as recommended by NICE guidance, set out how the core difficulties (including communication) associated with ASD affect Mr D and did not provide details of required reasonable adjustments.
- Treatment of bipolar disorder within Mr D’s care plan focused on psychotropic medication, social support and crisis planning. The records fail to show whether these treatments, in accordance with NICE recommendations, were modified to take account of the core features of autism insofar as they affected Mr D.
- I therefore find workers supporting Mr D after November 2015 did not have enough information, knowledge or skills relating to autism to be able to provide good personalised support and make reasonable adjustments that took account of the unique nature and influence of an ASD on his support needs.
- The LDS, particularly Dr N, maintained frequent and highly responsive contact with Mr D, despite him being difficult to engage at times. However significant delays arose in attempts to work collaboratively with other teams because of rigid inclusion criteria and the internal referral mechanisms of services and also because of delays and difficulties determining who should most appropriately be involved in Mr D’s care and support. This began to improve from June 2016 onwards when a more assertive approach to care planning was adopted. The delays prior to June 2016 are not consistent with reasonable adjustments being made to achieve a speedy resolution and allay the anxiety caused to Mr D by ongoing uncertainty. This was also fault.
Delay by the Council in appointing an advocate for Mr D
- Mr and Mrs C first requested an advocate for Mr D on 21 December 2015 in an email to Dr N which was copied to Mr D’s social worker.
- Mr and Mrs C made a referral to an advocacy service in April 2016. The social worker chased this up on 11 May 2016 and an advocate was allocated to Mr D later that month.
- I find the Council was at fault in that it should have made a referral in December 2015 or explain to Mr and Mrs C that they should do this.
Delay by the Council in carrying out a reassessment of Mr D’s needs
- Mr and Mrs C say the Council promised a reassessment in January 2016 but this was not completed until July 2016.
- The Council says part of the reason for the delay was because it took longer than anticipated to identify a social worker who was compatible with Mr D after he was transferred to the AAT. Another reason was the difficulty the social worker had in coordinating a review with all the relevant parties, including the LDS; CMHT and SAANS. The social worker needed their input to assess Mr B’s level of risk to himself or others.
- The involvement of other agencies in supporting Mr D is particularly complex and I accept it was difficult for the social worker to coordinate a review. But this may not have been the case if Mr D had remained subject to the CPA throughout. The Mental Health Act 1983 code of practice says CPA should provide a framework of the coordination of aftercare to ‘most people’ subject to aftercare under S117. Had CPA been continuously in operation between 2012 and 2015 this might have improved overall coordination between agencies. The Code notes this is not a statutory obligation. But Mr D’s mental health needs should have been kept under review at all times even when he was assigned to the LDS. His S117 status should have meant he was subject to a CPA and assigned a coordinator. The CPA would have been the best way to assess, plan, coordinate and review Mr D’s needs.
- I find the delay in completing the reassessment caused Mr D and his family injustice because Mr D could not return home until the reassessment was completed and support put in place.
The Council’s failure to adequately investigate the events of 18 May 2016 and the breakdown of the care package provided by Agency Y
- Mr and Mrs C say the Council accepted the support workers’ version of events without carrying out an investigation. They say Mr D’s version is different and a safeguarding investigation should have been carried out because the police officer submitted a safeguarding referral.
- The Council says the safeguarding procedure was not appropriate as Mr D was the alleged perpetrator.
- Notes of a discussion between Dr N and Dr J show they were satisfied Mr D’s admission to hospital was not due to a mental health crisis, but around his care needs. The assessment completed in July 2016 by the AAT social worker states that Mr D’s support package with Agency Y broke down due to gaps in service which resulted in him becoming extremely anxious and engaging in threatening behaviour towards staff.
- It is ultimately for the Council to decide if there should be a safeguarding investigation as it has overarching responsibility for safeguarding. I find no grounds to criticise it for not carrying out a safeguarding investigation. But, given the seriousness of the allegations, it should have investigated matters further to ascertain what risks Mr D presented to others as the alleged perpetrator. It could also have considered whether the inadequacy of his support was a contributory factor. This was a missed opportunity.
The Council’s failure to consider the needs of the family.
- Mr and Mrs C say they cared for Mr D by default when his support was withdrawn following the incident on 18 May 2016 but were never asked if they were willing or able to do so. They say the Council did not carry out a carers' assessment or a risk assessment despite describing Mr D as a serious risk to support workers.
- The Council accepts it failed to carry out a carers’ assessment of Mr and Mrs C despite agreeing to do so at a professionals meeting on 27 May 2016 and despite this being clearly identified in Mr B’s needs assessment. The case file also shows the Council agreed to do a carers assessment during a telephone conversation with Mr C on 31 May 2016.
- In May 2017 the Council wrote to Mr and Mrs C apologising for this and offered to carry out an assessment.
- I find the Council was at fault in failing to carry out a carers’ assessment in May 2016. Mr and Mrs C were put under a great deal of physical and mental stress in having to care for Mr D for five weeks in their home with very limited formal support in place. Mr D has high support needs and presented challenging behaviour during this time. Emails from Mr and Mrs C show they were already “at breaking point” before the incident on 18 May as they had been having to provide almost 50 percent of Mr D’s care since November 2015. The Council should have carried out an assessment at the time and met any identified support needs.
- I also find the Council should have carried out a risk assessment with regard to Mr D living with his parents given that he had allegedly threatened a carer a few days earlier and also because he had complex needs and was used to living in his own space. Mr and Mrs C say they were concerned for their safety as they were not informed of the risks.
- Failure to carry out a risk assessment was fault. But there is no evidence in the correspondence that Mr and Mrs C raised concerns about their safety. They later told the social worker in an email they had had no concerns for their safety while Mr D was living with them. I do not therefore consider the Council’s failure to carry out a risk assessment caused them a significant injustice.
The Council’s communication with Mr D and the family
- Mr and Mrs C say there was poor communication between the Council and Mr D and the family.
- In March 2016 the Council accepted in its response to Mr and Mrs C’s complaint that its communication with the family up to that point had not been good enough. It apologised for this and agreed to take action to improve this. Mr and Mrs C say that, despite this, matters have not improved and many emails from them and Mr D’s advocate remain unanswered. The Council disagrees. It says social workers and managers have attempted to be clear in their responses to keep Mr D and his parents informed. It says Mr D has fluctuated in his wishes for certain information to be shared with his parents and this may have added to their perceptions around communication.
- There is evidence on the Council’s case file of emails and telephone calls between social workers and Mr and Mrs C. There was also frequent contact with Mr D. I do not therefore uphold this complaint.
The Council’s delay in investigating and responding to Mr and Mrs C’s complaints
- In January 2016 Mr and Mrs C complained about the way Mr D’s support had been handled since November 2015. The Council responded in March 2016 and upheld some of their complaints.
- In May 2016 Mr and Mrs C raised ongoing issues. They also complained to their MP that, although the Council had upheld some of their complaints, it had not taken the promised action. Officers met with Mr and Mrs C to discuss the complaint in June 2016.
- In December 2016 the head of service responded to the complaint. Mr and Mrs C remained dissatisfied and highlighted gaps in the response. The head of service met with Mr and Mrs C and then sent a further response in January 2017.
- The Council acknowledges there were delays in investigating ongoing issues raised by Mr and Mrs C in May 2016. It also accepts there was a significant delay in responding in full to the issues they raised in June 2016. The Council has apologised to the family.
- I do not consider an apology to be a sufficient remedy for the significant delay in responding to Mr and Mrs C’s complaints and the distress and frustration this caused.
The risk assessment prepared by the Trust
- Mr and Mrs C say Dr P and Dr N presented a risk assessment at a meeting in May 2016 which lists incidents with no dates or context. They say the professional team were aware the risks had fully diminished by 2006 yet this document was used to deny Mr D support following his discharge from hospital.
- A risk assessment is more than merely an exercise in gathering background data and should also include some form of processing of the data to inform an appraisal as to whether there is a low, medium or high risk of recurrence of hazardous behaviours. It should include careful consideration of past history and contextual predictors in terms of the patient’s mental state, social and interpersonal factors and any health issues. Risk assessments should inform care, treatment and the risk management strategy.
- The document presented by Dr P and Dr N was not a risk assessment. Rather, it was a summary of past risk behaviours and included brief information about some aspects of Mr D’s mental state and temperament which were potentially predictive of hazardous behaviours. The document was prepared by a clinical assistant rather than a qualified health or social care practitioner. It appropriately referenced all source materials but did not provide a clear chronology or context of behaviours.
- The document was shared at a planning meeting on 27 May 2016 where it was agreed it should be incorporated into Mr D’s risk assessment with a view to informing a risk management plan. The contents of the report were added to Mr D’s electronic record but there is no evidence to show how or whether this information was considered to determine the likelihood of hazardous behaviours or to inform care, treatment and risk management strategies. This is not considered good practice in risk assessment.
- At a further meeting on 9 June 2016 it was noted that past risks were ‘no longer active’ but still needed to be held on file to inform practitioners.
- I find it is entirely appropriate and consistent with good practice for a properly conducted risk assessment to include full details of past risky behaviours. But they should include dates and there should be a consideration of current risks and how they would be managed. There is no evidence this occurred. This was fault and caused uncertainty about whether Mr D was denied support because of assumptions made about his risk based on out of date information.
Delay by the Trust and the Council in transferring Mr D from the adult autism service to the mental health service
- Mr D was transferred from the AAT to the CMHT in October 2016. Mr and Mrs C say this was not discussed with them or with Mr D. They say neither service wanted to take responsibility for Mr D’s support package and he was left without adequate mental health support until December 2016 when responsibility for case management was returned to the AAT. They say this led to a deterioration in his mental health and self-harm.
- The Council says Mr and Mrs C wanted Mr D’s health support to be transferred from the LDS to the CMHT. His transfer from learning disability to autism social work was because he was considered to only have needs arising from his autism and not a learning disability. A transfer from the LDS to CMHT has the same rationale. Professionals decided that, because Mr D’s mental health status overrides the difficulties he has because of his ASD, the CMHT was the most appropriate agency to support him. Mr and Mrs C disagree with this. They say they did not ask for Mr D’s health support to be transferred from Dr N to CMHT. They say the transfer was undertaken without consulting them or Mr D and was not carried out via the CPA process.
- I find the Trust and Council were at fault in that there were significant delays in transferring Mr D to CMHT. This appears to have been a consequence of miscommunication and restrictive inclusion criteria which did not ensure timely access to the service best placed to meet his needs. These delays appear to have contributed to significant anxiety and distress for both Mr D and his family and to have obstructed efforts to secure an appropriate community support package.
Failure by the Council and the Trust to consider Mr D’s autism
- Mr and Mrs C say professionals failed to consider Mr D’s autism when communicating with him. They failed to recognise when he was experiencing stress or anxiety and how this can affect his behaviour. For example, the mental health service considered it acceptable to drop in unannounced which was not appropriate for Mr D’s needs.
- The Council says there have been occasions when the AAT social worker has communicated things to Mr D which, because of his autism, he has understood and rationalised in a particular way and which has then caused unnecessary stress for his parents. It says the social worker works hard to minimise this and takes advice from Mr D’s parents, his advocate and SAANS. It says the social worker is well aware of the key stressors for Mr D arising from his autism and is working with all parties to establish a contract of expectation between them to ensure clarity and consistency.
- As stated earlier, Mr D’s assessments/care plans did not comply with NICE guidance because they did not include a consideration of whether he has particular communication needs because of his autism and, if so, how they should be met.
- Professionals should have identified the needs arising from Mr D’s autism and made adjustments to meet them with specialist input into the assessment and care planning. The failure to do this was fault.
Lack of consistency in Council and Trust professionals working with Mr D.
- Mr and Mrs C say that, since November 2015 Mr D has had four changes of support provider, three changes of social worker and two changes of psychiatrist. Mr D finds change difficult and stressful.
- In January 2016 Mr D was transferred from LDS to AAT which meant he was appointed an autism specialist social worker. In March 2016 the social worker left and another social worker took over on a temporary basis. On 20 April 2016 a new social worker took over.
- Mr D was transferred to a new psychiatrist when his case was transferred from the LDS to CMHT.
- There were changes of care provider after November 2015 because Mr D could not accept many of the support workers because of his ASD.
- I find better care planning may have led to more consistency overall.
Inadequate diagnosis by Trust professionals
- Mr and Mrs C say the professional team cannot agree on Mr D’s diagnosis and medication. They have repeatedly asked for him to be reassessed by an independent autism specialist but this has not happened.
- On 15 August 2016 Dr J explained to Mrs C that Mr D’s diagnosis of bipolar disorder had been questioned and that he should be assessed further. He explained patients can present with symptoms for a number of different mental health disorders and that it is difficult to make such a diagnosis in people with ASD. Mr and Mrs C say this assessment has not taken place.
- It is not uncommon for diagnoses to be revised. Diagnosis is a matter of clinical judgement and we would not generally question this unless there are exceptional circumstances. Likewise, Mr D’s medication is prescribed by a psychiatrist and this is a matter of clinical judgement.
- Clinical advice obtained by the Ombudsmen is that Mr D’s autism would likely have made it difficult to assess his mental health and this would legitimately have challenged clinicians in establishing a clear diagnosis.
- NICE guidance suggests that, if there are complex co-morbidities, consideration should be given to seeking a second opinion from a specialist autism team. Mr D’s records show Dr N, and later Dr J, sought further assessment and guidance from the local NHS specialist autism service (SAANS). But access to this service was not provided in a timely manner. It was significantly delayed between April 2015 and July 2016 due initially to a misperception that Mr D did not meet SAANS’ inclusion criteria and, later, because Mr D declined the service (although he later explained he had not understood what was being offered). This delay was fault and caused the family uncertainty.
The Council’s failure to consider Mr D’s request for a change of provider
- Mr and Mrs C say that, although Mr D was in receipt of direct payments, the Council disregarded his right of choice in respect of his care and delayed in agreeing his request for a change of provider.
- In May 2016 the social worker requested funding for Company R to provide 24 hour support for Mr D. His parents proposed an alternative provider, Company T. The Council said that, although Company T was willing to work with Mr D, it would take three months to recruit and train support workers.
- In July 2016 Mr D moved back to his flat with 24 hours support from Company R. In August 2016 he requested that Company T takeover his support. The Council did not agree to this until January 2017.
- The delay in the Council agreeing Mr D’s request was partly because the case was being transferred from the AAT to CMHT. The AAT could not agree Mr D’s request because management of his case would be the responsibility of CMHT who had to carry out a CPA review of his current support and complete a new support plan before they could decide whether Company T could meet his needs. There was also some confusion about whether Mr D was eligible for S117 aftercare. I have already found the Trust was at fault in that there was a significant delay in transferring Mr D’s case to CMHT.
- I find the Council could have put in place interim arrangements while Company T recruited and trained support workers. The delay in agreeing Mr D’s request meant he had to wait six months for the support he wanted. Even allowing for recruiting and training new workers, this could have been put in place much sooner.
SAANS’ failure to provide positive behaviour support
- Mr and Mrs C say SAANS has not provided Mr D with PBS despite promising to do so.
- The Trust says Mr D was referred to SAANS in February 2016 for an assessment for strategies for anxiety and diagnostic support with motivation and engagement. A referral was made to CMHT in March 2016 for similar issues in recognition of the challenging nature of Mr D’s presentation and the fact there had been a significant breakdown in his relationships with care agencies and workers. An MDT meeting took place in April 2016. The MDT report states the involvement of SAANS was to provide an updated diagnostic report and post diagnostic support that would involve supporting Mr D and his care staff to develop a contract of care which would balance meeting his needs and the needs of those supporting him.
- The Trust says SAANS completed the requested assessment and presented a coherent clinical formulation which was discussed with Mr D and his parents. Professionals presented their clinical rationale as to why further intervention would not be effective or beneficial. Mr D was disappointed with the decision not to be offered support directly through SAANS but it was found that his presenting needs required an integrated community care package.
- I find SAANS’ report focused on Mr D’s behaviour and how it impacted on his support needs. It offered to work with support staff to help develop a plan about how best to help him in a constructive and positive way. It explained its role should be consultative to help with specific issues and advise on Mr D’s care. It was clear about its role and I would not expect it to have done more. SAANS could not provide the agreed support/training for Mr D’s care provider until a permanent provider was in place. However, Mr and Mrs C say it has still not provided the support/training despite a permanent provider being in place for some time.
- I recommended that, within two months of the Ombudsmen’s final decision:
- the CCG and the Council apologise in writing to Mr D for the significant impact on his well-being because of their failure to provide adequate support between November 2015 and July 2016 and for failing to have a contingency plan in place for the termination of the contract with Company X. They should also apologise for the significant delay in carrying out a reassessment of Mr D’s eligible needs. In recognition of the injustice caused, the CCG and the Council should pay Mr D £3500 (shared equally);
- the Council and the CCG reiterate the importance of contingency planning to staff when dealing with complex cases, particularly concerning people with autism;
- the Council and the Trust apologise to Mr D for the delay in transferring his case between teams and for the delay in providing access to SAANS. These delays also impacted on the ability to provide adequate support from November 2015;
- the Council and the Trust improve their procedures for transferring cases between teams. They should be clear about when responsibility passes from one team to another and communicate this properly to service users;
- the Council apologises to Mr D for failing to make a referral for an advocate and for the delay in agreeing his request to change his support provider;
- the Trust apologises to Mr D for the inadequate ‘risk assessment’ presented to the planning meeting on 27 May 2016 and reviews its procedures to ensure risk assessments include dates and a consideration of current risks and how they would be managed;
- the Trust and Council provide Mr D with copies of his up-to-date risk assessment and care plan if they have not already done so;
- the Trust and the Council apologise to Mr D for the failure to consider his autism in that his care plans did not include a consideration of whether he had particular needs because of his ASD and pay him £250 (shared equally);
- the Trust and the Council remind staff about the importance of including needs associated with autism in care plans;
- the CCG and the Council pay Mr and Mrs C £1500 (shared equally) for the significant impact that the failure to carry out a carers’ assessment and put in place adequate formal support had on them; and
- the CCG and the Council pay Mr and Mrs C £250 (shared equally) to acknowledge the distress and frustration they experienced because of the delay in responding to their complaint and the time and trouble they were put to in pursuing it; and
- SAANS take action to put in place the agreed support for Mr D’s care provider.
- I uphold Mr and Mrs C’s complaint against the Council, the Trust and the CCG. I consider the actions listed above are a satisfactory remedy for the injustice suffered by Mr D and his parents. As the authorities have agreed to implement the Ombudsmen’s recommendations, I have completed my investigation.
Investigator's decision on behalf of the Ombudsman