Summary: Pennine Care NHS Foundation Trust missed opportunities to assess Y’s Section 117 aftercare needs during late 2018 and 2019. It also failed to assess Y’s risk before he took Section 17 leave (while detained under Section 2 of the Mental Health Act). Also, Oldham Metropolitan Borough Council did not carry out a Mental Health Act assessment in line with the relevant guidance. The Trust and Council’s actions caused Y and his mother, Miss X, avoidable distress and uncertainty. Those organisations (and Greater Manchester Integrated Care Board) should take action to remedy their injustice.

The complaint

1. Miss X represents her son, Y, in his complaint that in 2019, Pennine Care NHS Foundation Trust’s Early Intervention Team (the EIT) failed to help Y when he showed signs of schizophrenia. Miss X says:
• She repeatedly contacted the EIT to advise of Y’s behaviour, but it failed to act.
• The EIT did not provide appropriate Section 117 aftercare to Y during 2019. Oldham Metropolitan Borough Council (the Council) and Oldham Clinical Commissioning Group (now called Greater Manchester Integrated Care Board) had a joint duty to arrange that aftercare.
• The Trust should not have allowed Y to leave the Trust on Section 17 leave in January 2019 when it detained him under Section 2 of the Mental Health Act.
• An Approved Mental Health Professional (who worked for the Council) did not carry out an appropriate Mental Health Act assessment in October 2019.
2. Y is now serving a life sentence in prison after committing a crime. Miss X and Y believe that was due to the lack of support from the EIT.
3. Y and Miss X would like service improvements and accountability from the organisations through recognition of its mistakes.

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The Ombudsmen’s role and powers

4. 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).
5. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to take action to stop the same mistakes happening again.
6. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services by people and organisations specified in the Health Service Commissioners Act 1993. When doctors make recommendations under sections 2, 3 or 4 of the Mental Health Act 1983 (MHA), they are acting under powers which have been given to them under the MHA. They are acting as individuals and not on behalf of the NHS. This means we cannot investigate complaints about their actions and recommendations. (Health Service Commissioners Act 1993, sections 2, 2A, 2B and 3)
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)

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How I considered this complaint

8. I considered the information Miss X and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
9. Miss X and the organisation had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant legislation and guidance

10. Under the MHA, 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. An AMHP is a social worker or other professional approved by the local authority to carry out duties under the Act. An AMHP is acting on behalf of the local authority. This means complaints about an AMHP's actions fall under the jurisdiction of the Local Government and Social Care Ombudsman.
12. The Mental Health Act 1983: Code of Practice” (the MHA Code) is statutory guidance. Paragraph 14.56 of states: “Where patients are subject to the short‑term effects of alcohol or drugs (whether prescribed or self‑administered) which make interviewing them difficult, the AMHP should either wait until the effects have abated before interviewing the patient or arrange to return later. If it is not realistic to wait because of the patient’s disturbed behaviour and the urgency of the case, the assessment will have to be based on whatever information the AMHP can obtain from reliable sources. This should be made clear in the AMHP’s record of the assessment.”
13. The purpose of detention under Section 2 of the MHA is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
14. Section 3 of the MHA 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.
15. A patient may be granted permission to leave the hospital ward while detained under Section 3. Leave is decided by the patients Responsible Clinician and is called Section 17 leave. The MHA Code says: “Leave of absence can be an important part of a detained patient’s care plan but can also be a time of risk. When considering and planning leave of absence, responsible clinicians should […] undertake a risk assessment and put in place any necessary safeguards”.
16. 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 MHA 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 MHA (including Section 3, but not Section 2). Aftercare services provided in relation to the person’s mental disorder under Section 117 cannot be charged for. This is known as Section 117 aftercare. This means that councils and ICBs must follow it, unless there are good reasons not to.
17. In 2022, the Parliamentary and Health Service Ombudsman and Local Government and Social Care Ombudsman jointly produced the ‘Section 117 Aftercare: Guidance for Practitioners’. Our joint guidance states the MHA Code is clear that “Before deciding to discharge a person from hospital, the clinician in charge of their treatment…should ensure their aftercare needs have been addressed. This involves a comprehensive assessment of the person’s needs using the Care Programme Approach (CPA). The CPA is an overarching system for coordinating the care of people with mental health conditions”.

Background

18. In September 2018, Y’s behaviour concerned Miss X, which led to his detention under Section 2 of the MHA in Bradford. He later moved to a psychiatric hospital (the Psychiatric Hospital - not part of the NHS) in Manchester under Section 3. The Psychiatric Hospital decided schizophrenia and drug-induced psychosis explained Y’s behaviour. Schizophrenia is a serious mental illness that affects how a person thinks, feels and behaves. Psychosis causes people to see or hear things not there or believe things that are not true.
19. The Psychiatric Hospital discharged Y on 24 October 2018, and transferred him to the Trust’s Early Intervention Team (the EIT). The EIT support people who have had psychotic (or similar) episodes. The next day, the EIT recognised Y had been detained under Section 3, so arranged for a psychiatrist (the Responsible Clinician) to review him. The Responsible Clinician prescribed medication to Y. But shortly after that appointment Miss X told the EIT Y had stopped taking his medication.
20. In December 2018, the Responsible Clinician reduced Y’s medication, but the Trust later detained him again under Section 2. During that admission, the Trust noted Y was trying handles and doors to leave hospital. So the Trust decided to not discharge him from Section 2.
21. By January 2019, the EIT recorded Y made inappropriate comments to staff, including asking if one had a boyfriend. That staff member ended the conversation, so Y threatened her. Miss X raised concerns about Y’s behaviour before the Trust granted him Section 17 leave. Y later left hospital while on agreed Section 17 leave. Y’s Section 2 expired in his absence from hospital. EIT staff and Miss X could not get in contact with Y, and the police declared him a missing person.
22. Y eventually returned to the EIT’s office, but he caused damage to property and abused staff by text message.
23. In late June 2019, the EIT met with staff from the Council to discuss discharging Y from its service. Y did not engage with or accept any support. But during that meeting, everyone agreed Y needed a Care Programme Approach (CPA) meeting because he was eligible for Section 117 aftercare. The EIT arranged that meeting for August.
24. The EIT later cancelled the August 2019 CPA meeting because Y’s Responsible Clinician was on sick leave.
25. In late September 2019, the Y’s Care Coordinator told Miss X it was trying to allocate Y a new Responsible Clinician.
26. In late October 2019, police arrested Y for criminal damage and assault. An AMHP carried out a MHA assessment at the police station. Y told the AMHP he had consumed alcohol and taken drugs earlier that day. But the AMHP decided Y did not lack mental capacity so left Y with the police. The next day, a mental health nurse told the court Y was not fit to plea, and he could not concentrate. The court released Y on bail conditions. Miss X says Y violently assaulted a women 40 minutes after the court released him.
27. In early November 2019, Y caused damage to the EIT office and verbally abused staff again. At the same time, the EIT decided it could not wait for Y’s Responsible Clinician to attend his CPA meeting. It continued trying to allocate Y a new Responsible Clinician.
28. Then in mid‑December 2019, the police arrested Y for violently assaulting two women with a weapon. The Trust detained Y under Section 2 the next day and planned to move him on to Section 3 at a different Trust (not subject to this investigation). The police charged Y with the assault and the court found Y guilty of the crime. Y currently is in prison serving a significant sentence for that crime.

My findings

The EIT’s response to Miss X’s concerns

29. Miss X says she repeatedly contacted the EIT with concerns about Y’s behaviour.
30. I have reviewed the EIT’s records. Miss X contacted the EIT many times during 2019 about Y’s behaviour and wellbeing. I do not doubt that was a difficult time for her, seeing her son’s mental health deteriorate. It was clear Miss X tried her best to get the right support in place for Y.
31. However, Y largely refused to engage with the EIT during 2019. Y was officially a missing person for many months that year. The records show the EIT actively tried to engage Y with its services and provide support when it could. I am not persuaded it could have done more to support Y then.
32. The General Medical Council’s (GMC) ‘Good Medical Practice’ guidance says: “You must be considerate to those close to the patient and be sensitive and responsive in giving them information and support”.
33. I consider the EIT acted in line with the GMC guidance. It recorded Miss X’s concerns from calls and in meetings. Also, the EIT provided appropriate advice in response to her concerns. Therefore, I do not consider the Trust acted with fault.

Section 117 aftercare during 2019

34. When the Psychiatric Hospital discharged Y to the EIT in October 2018, he became eligible for Section 117 aftercare. The EIT’s records showed it was aware Y had been detained under Section 3. I consider the EIT missed the opportunity in October 2018 to decide if Y had any Section 117 aftercare needs.
35. The MHA Code is clear that someone should not stop receiving Section 117 aftercare just because they have been detained under Section 2 of the MHA. Therefore, Y would have still been eligible for Section 117 aftercare despite the Trust detaining him under Section 2 in January 2019. When the Trust discharged Y from Section 2 in February, it missed another opportunity to decide if Y had any Section 117 aftercare needs.
36. By June 2019, the EIT agreed to assess Y’s Section 117 needs before it discharged him from its service. So, it arranged a CPA meeting for August. The EIT cancelled that meeting because it was not certain when Y’s Responsible Clinician would return to work.
37. I agree it would have been important for Y’s Responsible Clinician to have attended that CPA meeting, which was in line with the MHA Code.
38. However, the Trust’s ‘Managing Attendance at Work Policy’ (July 2017) defined a long-term sickness as a rolling four-week absence. The EIT’s records show that in late September 2019, Y’s Care Coordinator told Miss X it was looking to transfer Y’s Responsible Clinician. Y’s Responsible Clinician was on long‑term sick leave as defined in the Trust’s absence policy. Therefore, from late September, I consider the EIT unnecessarily delayed reallocating Y’s Responsible Clinician. That in turn delayed Y’s CPA meeting.
39. Overall, I consider throughout late 2018 and 2019 the EIT first failed to recognise Y was eligible for Section 117 aftercare. Then, after June 2019, it delayed arranging a CPA meeting to decide if Y had any Section 117 aftercare needs. That was not in line with the MHA Code.
40. Throughout 2019, Y’s mental health and behaviour worsened. However, I cannot say, even on the balance of probabilities, if Y’s mental health would not have worsened even had the EIT not acted with fault. Also, during 2019, Y did not engage with the EIT. So, I cannot say if Y would have accepted any Section 117 aftercare support following a CPA meeting. However, those missed opportunities leave Miss X and Y with a sense of uncertainty. They will not know what, if anything, might have been different if not for the EIT’s fault.
41. In response to my enquiries, the Trust (and ICB) have accepted those missed opportunities during 2018 and 2019. The Trust said in 2018 and 2019 there was an informal agreement to invite Council staff to Section 117/CPA reviews. It accepted it needed to review that agreement. The Trust agreed to restart a review of the local Section 117 policy with the ICB and Council. That review will specifically consider how it gets MHA documentation from out of area and/or private placements.
42. I am happy the Trust has identified learning from this complaint during my investigation. But it needs to do more to remedy the personal injustice to Miss X and Y.
43. I have not directly found the ICB at fault during my investigation. But considering its statutory responsibility for Section 117, I consider (alongside the Trust and Council), it should take further action to ensure they embed learning from their review of the local Section 117 policy.

Section 17 leave in January 2019

44. I have not seen any evidence to suggest the Trust should not have considered Section 17 leave for Y. Section 17 leave is an important way to promote people’s independence when they are detained under the MHA.
45. Y had previously talked about leaving the hospital and had displayed inappropriate behaviour toward staff. So, it would have been important for the Trust to have completed a risk assessment before starting Y’s Section 17 leave. The Trust should have detailed the risks to Y and its staff. I consider that missed opportunity was fault.
46. I cannot say, even of the balance of probabilities, Y would not have left hospital even if the Trust had completed a risk assessment. But I do not doubt that was a distressing time for Miss X. Y was a missing person for months after he left hospital. Miss X and Y will not know if things would have been different had the Trust completed a risk assessment.
47. The Trust has already accepted this fault. It agreed to review its Section 17 procedure. Specifically, it will check how it clinically assesses patients, and documents risks before any period of Section 17 leave.
48. I am again happy the Trust has learnt from this complaint. It has accepted the fault and suitably reflected on its practice to ensure similar fault does not happen to others. But I consider the Trust needs to do more to remedy the personal injustice Miss X and Y have suffered.

Mental Health Act assessment in October 2019

49. The Trust accepted its staff present at the MHA assessment should have explored Y’s alcohol and drug use further on 31 October 2019. I have explained why I cannot consider the actions of NHS staff during MHA assessments in paragraph 6. Therefore, I have focused on how the AMHP carried out the MHA assessment.
50. During the MHA assessment, Y admitted taking drugs and consuming alcohol that day. The MHA Code states the importance of exploring the impact of any short‑term effects of drugs and/or alcohol on the person subject to a MHA assessment. Y also had a history of fluctuating capacity and psychosis which were further reasons the AMHP should have explored Y's alcohol and drug use more. The AMHP should have recorded if Y was fit to be interviewed. They did not do that, which I consider was fault.
51. Miss X says if the AMHP had detained Y, he would not have violently assaulted two women leading to his imprisonment. I do not doubt that must have been a difficult time for Miss X. However, I cannot say, even on the balance of probabilities, that if the AMHP had not acted with fault, then Y would have been detained under the MHA. Also, I cannot say Y would not have committed those crimes had the AMHP decided to detain him. Y may have still committed those crimes if he had been released from any detention under the MHA. While I do not agree with Miss X and Y’s claimed injustice, they now will not know what would have happened if not for the AMHP’s fault.
52. The Council should take further action to remedy that injustice to Miss X and Y.

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Agreed actions

53. Within four weeks of this decision, the Trust should apologise for the avoidable distress and uncertainty it caused Y and Miss X from failing to consider risk for Y’s Section 17 leave and the management of his Section 117 aftercare.
54. Within four weeks of this decision, the Council should apologise for the avoidable distress and uncertainty it caused Y and Miss X from not carrying out the MHA assessment in line with the MHA Code.
55. Within 12 weeks of this decision, the Council should review its local policy for AMHPs and provide training to relevant staff, to ensure they explore the potential effects of alcohol and drug use during any MHA assessments.
56. Within 12 weeks of this decision, the Trust, Council and ICB should share the outcome of their review of its local Section 117 policy, to ensure similar fault in this case does not happen to others.
57. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

58. I have not found fault with the EIT’s response to Miss X’s concerns about Y during 2019. However, the EIT missed opportunities to assess Y’s Section 117 aftercare needs during late 2018 and 2019. It also failed to assess Y’s risk before he took Section 17 leave. That fault caused Miss X and Y uncertainty, at not knowing if the outcome would have been different for Y.
59. I have also found fault with the AMHP’s MHA assessment in October 2019. That fault has again caused Miss X and Y uncertainty.

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Investigator's decision on behalf of the Ombudsman