The Ombudsman's final decision:
Summary: Mrs B has complained about her daughter’s treatment by a Council and a Trust on behalf of a Care Commissioning Group. The Ombudsmen find fault with the Council and Trust in relation to a lack of aftercare under s.117 of the Mental Health Act. They also uphold a complaint about the Council and Trust not refunding supported living fees. However, they do not find fault in relation to a residential move which broke down. The Council, Trust and Clinical Commissioning Group have agreed to a number of actions to remedy the impact of the identified faults.
- Mrs B is complaining about the care provided to her daughter, Miss A, during her detention under Section 3 of the Mental Health Act (MHA) between November 2014 and December 2016 and following her discharge.
- Mrs B complains that:
- Central and North West London NHS Foundation Trust (the Trust) acting on behalf of Milton Keynes Clinical Commissioning Group (the CCG), St Andrew’s Healthcare (St Andrew’s), South West London and St George’s Mental Health NHS Trust (St George’s) and Partnerships In Care Ltd all refused to refer her daughter for assessment by a neuropsychiatrist when she was detained under s.3
- All four organisations failed to properly assess her daughter’s needs which led to inappropriate treatment. In particular, Mrs B highlighted the use of Olanzapine medication by both St Andrew’s and St George’s. Mrs B says these organisations refused to work with the family to ensure her daughter received the care she required
- The same organisations reacted to her daughter’s behavioural problems punitively, by excessive use of seclusion and restraint
- The Council and the Trust failed to plan and arrange appropriate aftercare for her daughter under the provisions of section 117 (s.117) of the MHA
- The Council and Trust failed to assess her daughter’s s.117 needs until June 2017, six months after her discharge from hospital. In addition, the assessment was inadequate
- The Council and Trust will not refund supported living fees
- The Council attempted to move her daughter from a supported living placement the family was funding
- Mrs B says the failure of the Council and Trust to put appropriate s.117 aftercare in place meant her daughter was left without suitable accommodation and support.
- She also says the Council’s failure to assess her daughter’s social care needs in a timely manner meant she was left without care and support. Furthermore, Mrs B says she has been forced to source, and fund, her daughter’s accommodation and care as the Council and Trust failed to do so.
- Mrs B says that, by attempting to move her daughter from her settled accommodation in September 2017, the Council caused her daughter great distress which led to a deterioration in her behaviour. Mrs B says this ultimately resulted in her daughter setting fire to her room in January 2018 and being prosecuted.
- Mrs B said as a result of a lack of support the family had to pay for damage caused by their daughter to property. Miss A also took an overdose during this period. Mrs B said her daughter is now considerably more disadvantaged as she will find it extremely difficult to find employment, housing, insurance of any kind, as well as the staffing she requires to provide her with care and support.
- Mrs B would like the organisations she is complaining about to acknowledge that they failed her daughter and apologise for this. She would like these organisations to take action to prevent similar problems occurring in future.
- In addition, Mrs B says the Council and the Trust should reimburse the money (approximately £23,000) the family paid to fund Miss A’s supported living placement as they were only required to do so due to the failures of these organisations.
What I have investigated
- I have investigated the complaints against the Trust (on behalf of the CCG) and the Council in relation to s.117 aftercare and the events following Miss A’s discharge in December 2016.
- I have explained at the bottom of this decision why I have not investigated the complaints against the Trust, St Andrew’s, St George’s and Partnerships in Care relating to when Miss A was under s.3 of the MHA.
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)).
- If it has, they may suggest a remedy. 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.
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I have considered evidence from Mrs B, the Council and the Trust. I have also considered the law and guidance relevant to this complaint. I also considered comments from Mrs B, the Council and the Trust on my draft decision before making this final decision.
What I found
Relevant law and guidance
- Under the terms of the MHA, a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met.
- 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.
- 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 a section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Accommodation can generally only be part of section 117 aftercare if:
- the need is for enhanced specialised accommodation (“accommodation plus”);
- the need for the accommodation arises from, or is related to, the reason the person was detained in the first place (“the original condition”); and
- the “accommodation plus” reduces the risk of the person’s mental condition worsening and the likelihood of the person returning to hospital for treatment for mental disorder.
- When accommodation is part of a person’s section 117 aftercare, it must be free to the person. Councils and NHS organisations should not advise people to claim benefits such as Housing Benefit to pay for accommodation that is part of their section 117 aftercare.
- S.117 aftercare services continue until such time as the NHS body and social services authority both decide a person no longer requires any aftercare services and hold a discharge meeting to which the person and their carer/family member is invited.
- The MHA Code of Practice 2008 (now revised) provides guidance to mental health practitioners and professionals on how they should proceed when undertaking duties under the MHA. The MHA does not impose a legal duty to comply with the Code but the reasons for any departure from it should be recorded.
- 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 that they are being met.
- Miss A suffered a brain injury at birth. She has cerebral palsy which affects muscle control and movement. She also has hemiplegia which is a neurological condition resulting in weakness and lack of control in one side of the body. In addition, she has been diagnosed with an organic personality disorder. In October 2014 Miss A was detained under section 3 of the MHA following a suicide attempt.
- She subsequently had stays in several mental health units and in late 2016 was a patient at a mental health hospital called The Dene. In December 2016 a mental health tribunal found although Miss A did still suffer from a mental disorder, she benefitted from leave away from The Dene and there had been no incidents whilst on leave. Therefore, it was found she should be discharged from section to a community rehabilitation facility, Cherrywood. The Trust told the Ombudsmen Miss A had visited and agreed to stay at Cherrywood when a bed became available which was hoped to be sometime in January 2017.
- Miss A went to live with her parents in December 2016 while waiting for a bed at Cherrywood. The Trust said the placement was delayed as there were limited beds available and there was also a resident there whom Miss A had previously clashed with. It went on to say it offered support through its Acute Home Treatment Team (AHTT) but this was declined as Miss A had not found them helpful in the past.
- In February 2017 Miss A took an overdose. She was not placed under section but returned to her parental home. In March 2017 Miss A decided she did not want to move to Cherrywood. She would remain at her parents’ home until July 2017.
- The Trust said when Miss A decided she did not want to attend Cherrywood either as a day or inpatient, a referral was made to its Specialist Therapies Service. The service attended Miss A’s home in March 2017 but she declined this service and was invited to make contact if she re-considered.
- The Trust said in April 2017 its care coordinator visited the family home but Miss A did not want to take part in the discussion. As an outcome to this meeting, an adult social care assessment was arranged with Miss A and her mother and Miss A’s social worker. In May 2017 the social worker met with them at their home and a projected budget for support was drawn up. This included a direct payment of which 14 hours a week was for Miss A to be supported by an agency.
- The Council told the Ombudsmen it was not advised of Miss A’s discharge from hospital in December 2016 and was not invited to any s.117 discharge planning meeting prior to her leaving inpatient care. In addition, the Council had no referral requesting an adult social assessment until April 2017. The social worker then contacted the family in early May and offered the assessment which Miss A accepted.
- In June 2017 a s.117 aftercare plan was drawn up following a meeting between professionals from the Council, the Trust and Miss A’s parents. Miss A declined to take part in the assessment. The care plan included mental health monitoring, risk assessment and management, identification and management of relapse indicators and support with independent living once she left the family home. The Council said it discussed with the family the proposed s.117 aftercare plan outlining how both health and social care could offer support to Miss A. The Council said both parents clearly stated that their daughter did not wish to access any support from secondary mental health services provided by the Trust and that they agreed with her.
- In July 2017 Miss A moved into a supported living placement run by a private company. This was organised and paid for by Miss A’s parents. However in August 2017 there was an incident when Miss A became aggressive and damaged property including cars in the street near her residence and she said she had taken another overdose. A mental capacity assessment was carried out that same day which stated Miss A had capacity to make decisions regarding her care and accommodation.
- The Trust told the Ombudsmen Miss A decided she did not want mental health support in April 2017 and so social care colleagues took the lead. It said it did not have involvement in the placement of Miss A at the supported living placement and neither did the Council. The Trust said a professionals meeting took place on 30 August between the Council and the Trust. At this meeting it was agreed to take over joint funding of 14 hours a week whilst a further assessment took place.
- The Trust said a further social care assessment was undertaken in September which led to the level of support needed being reduced to three hours a week. The Trust said it and the Council were only able to fund the support that was identified as necessary through assessments.
- The Council said in September 2017 Miss A made it clear that she did not want to remain at the supported living placement and stated that she wanted to return to her family home. This was not going to be possible therefore the social worker worked with Miss A to consider her alternative options. The options included shared supported living for people with mental health needs and a tenancy with support.
- The Council said in November 2017 the social worker supported Miss A to meet another housing association who agreed to look for an appropriate property for her needs. On 15 December 2017 Miss A was supported to view a proposed property and agreed to a tenancy there. The Council said Miss A agreed to receive care and support from Housing and Tenancy Support Officers as she had started to build a positive rapport with both workers. Miss A made a further visit to the property with her mother prior to the planned move.
- Miss A was due to move to her new supported residential placement in January 2018. However, on 24 December Miss A was alleged to have damaged her flat and that of her neighbours and assaulted staff. On 4 January 2018 Miss A set fire to her flat and this led to her being remanded in custody. She was later found guilty of affray and criminal damage and released on a 12 month community order in July 2018.
- The Council said there was no evidence to suggest that supporting Miss A to move to a property suited to her needs, with support that she was in agreement to engage with, caused her distress or directly led to an escalation in her behaviour.
- Mrs B complained to the Ombudsmen during this period in 2017 as events unfolded. We closed the case as the complaint was ongoing. We reopened the case in March 2018 when Mrs B had received responses from the organisations she had complained about.
Milton Keynes Council (the Council) and Milton Keynes Clinical Commissioning Group (the CCG) failed to plan and arrange appropriate aftercare for Miss A under the provisions of s.117 of the MHA. The Council and Trust acting on behalf of the CCG failed to assess her daughter’s needs until June 2017, six months after her discharge from hospital. Mrs B says the assessment was inadequate.
- Mrs B complained that in December 2016, even following the tribunal discharging her from her section, there was no care plan in place to allow her daughter to be discharged from hospital and recover in the community. She said there was no s.117 planning prior to discharge and by February 2017 the placement had still not been arranged.
- Mrs B said the Council did not undertake a social care assessment until May 2017, despite the family requesting this from the point of the Miss A’s discharge from hospital. Again, she said this should have been part of the s.117 process. Mrs B said that, by this point, her daughter and the family had lost faith in the Trust. This was why they arranged and funded a supported living placement in July 2017. Despite this, she said the Council found Miss A to be eligible for only 14 hours per week, which it later reduced to three hours per week.
- Mrs B said her daughter entered the supported living placement on 17 July. The family were paying for 84 hours a week support. Mrs B complained the Council and Trust did not agree to repay all the supported living fees she had incurred. In addition she complained the Council in September 2017 reduced the support hours to three hours a week.
- The MHA Code of Practice – 33.12 states
‘Where a Tribunal or hospital managers’ hearing has been arranged for a patient
who might be entitled to after-care under section 117 of the Act, the hospital
managers should ensure that the relevant CCG and local authority have been
informed. The CCG and local authority should consider putting practical
preparations in hand for after-care in every case, but should in particular consider
doing so where there is a strong possibility that the patient will be discharged if
appropriate after-care can be arranged.’
- The Trust was already aware of Miss A and her forthcoming possible discharge. From looking at the attendance list for the mental health tribunal and the CPA notes from her stay at The Dene, there was no involvement of the Council in planning Miss A’s discharge or aftercare.
- The Council and the Trust have a memorandum of understanding where they share mental health assessment and provision. The objectives of the memorandum are:
- Health and social care expertise are brought together within co-located teams
- Service users and/or carers receive assessments, care plans, and packages
of treatment, care, and support which have a holistic view of their needs with the aim of optimising mental health and well-being.
- Although the Council says it was not aware of Miss A, its teams are co-located with the Trust’s. In addition, the Council and the Trust should have made proper efforts to ensure that there were effective information sharing protocols so that they were both aware of patients such as Miss A so they could provide a holistic approach to her aftercare.
- Therefore, it was a fault by both the Trust and the Council in not considering Miss A’s potential needs under s.117 while she was still in hospital. Although a formal s.117 aftercare plan was not completed, the Trust identified Miss A needed to be discharged to a community rehabilitation facility, Cherrywood. On this evidence it is reasonable to assume on balance that accommodation should have been provided as part of Miss A’s s.117 aftercare. The rehabilitation Miss A would have received in this placement would have been beneficial in maintaining her mental health and preventing further hospital admission.
- Following Miss A’s discharge to her family home there was also fault on the part of the Trust and the Council in not carrying out a s.117 assessment until June 2017. In April 2017 the Trust made a referral to the Council so it could complete a Care Act assessment. Miss A was still entitled to s.117 aftercare and referral to the Council for standalone social care assessment was not sufficient as she should have been jointly assessed under the CPA.
- This led to a missed opportunity to plan s.117 aftercare and any support Miss A needed. We cannot be sure Miss A would have accepted support as she did refuse some interventions. In addition, we cannot say the suicide attempt in February and the incident in August could have been avoided as these may have happened even if aftercare was in place. For the same reason we cannot say whether the damage to property would have been avoided. Miss A had capacity and was allowed to leave the premises and the supported living placement could not stop her. However, the lack of s.117 aftercare is likely to have impacted on Miss A’s wellbeing. It was a missed opportunity to provide the treatment, rehabilitation and social support Miss A was entitled to. This was also a missed opportunity to minimise the risk of the suicide attempts and damage to property. Consequently, there was uncertainty for Mrs B in not knowing if the suicide attempt and damage to property could have been prevented. There was also a negative impact on Miss A (due to lack of aftercare). In addition, by the time the assessment did happen both Miss A and her family had lost faith in the organisations.
- The Trust’s explanation for the delays in getting into Cherrywood due to limited bed space and the other resident indicates more planning should have been done for alternative community placements. These delays were foreseeable and there is no evidence the Trust had a back-up plan in place.
- With regard to the s.117 assessment being inadequate, Miss A was not present and her parents have not signed it. Therefore, the assessment is not sufficient as it is not in line with the MHA Code of Practice. Miss A’s lack of engagement in not wanting to be involved in assessments is understandable. The evidence available suggests she experienced increased anxiety when being assessed or dealing with professionals. In a short space of time from December 2016 to September 2017, she had undergone several assessments and been told of referrals to various teams. Historically, Miss A had negative experiences with some of these teams, so it is understandable she did not want to engage. Her parents were also frustrated with what was happening. Had the organisations assessed her properly under the CPA this would have alleviated the need for several assessments and her needs would have been considered holistically. The Council’s and Trust’s failure to carry out an appropriate s117 assessment led to a lack of engagement by Miss A and her family.
The Council and Trust will not refund supported living fees
- Section 9:
(1) where it appears to an LA (Local Authority) that an adult may have needs for care and support, the LA must assess –
•whether the adult does have needs for care and support; and
•if the adult does, what those needs are
(3) the duty to carry out a needs assessment applies regardless of the LA’s view of –
•the level of the adult’s need for care and support; or
•the level of the adult’s resources
(4) a needs assessment must include an assessment of –
•the impact of the adult’s needs for care and support on their well-being;
•the outcomes the adult wishes to achieve in day-to-day life;
•whether, and if so to what extent, the provision of care and support could contribute to the achievement of those outcomes.
- Although we have criticised the lack of s.117 assessment the actual social care assessment on 12 May was carried out appropriately. It was carried out at Miss A’s parents’ home by the social worker and involved interviewing Miss A about her daily support needs and how she was currently managing. It noted that as Miss A was currently living at home it did not reflect how much support she would need if she was living independently in the community.
- The social worker drew up a plan and the family were involved. Although Mrs B feels more than 14 hours should have been funded, I have not found fault with how the assessment was carried out and so I cannot question the level of social care support it identified.
- In addition, the September 2017 social care assessment was carried out appropriately in assessing Miss A’s care needs. It reflected the fact she was in supported living rather than living independently in the community and did raise the need for more mental health involvement which Miss A said she may engage with.
- However, under s.117 both the Council and the Trust were responsible for Miss A’s rehabilitation and accommodation. It had already been established that she would need a community rehabilitation placement in Cherrywood, but due to a lack of planning on the part of the Council and Trust, Mrs B felt forced to arrange the supported living placement as an alternative. Although Mrs B did not pay the accommodation costs, under s.117 the Council and the Trust should have funded the supported living care fees at this placement. This was fault on the part of both organisations.
The Council attempted to move Miss A from a supported living placement the family was funding
- Mrs B said the Council wanted to move her daughter to a different placement and this caused her great distress and led to a deterioration in her behaviour. Mrs B said this ultimately led to her daughter setting fire to her room and being remanded for arson. Mrs B said her daughter remained in prison between January and June 2018 and that this had been a terrifying experience for her.
- I have looked at the contemporaneous records kept by the social worker and they reflect the account given by the Council. I take on board that Mrs B felt her daughter was being manipulated into making bad decisions. However, Miss A had been assessed as having capacity. In addition, there are several references in the social work records including in her adult social work assessment of her wish to live more independently. I have not found fault with the social worker supporting Miss A’s wish to move residence and I have found no evidence of undue influence on the part of the Council. I have also found no link to the unfortunate events which resulted in her sadly being placed on remand. Whilst Miss A remained in prison between January and June 2018, this was not due to any decisions by the Council as these were decisions of the Courts.
- Whilst the Trust was acting on behalf of the CCG in carrying out the s117 actions, the CCG is ultimately responsible for s.117 provision, along with the Council.
- In view of the faults I have identified and the impact on Miss A and Mrs B, I make the following recommendations.
- The CCG, Trust and the Council should, by 23 December:
- Write to Mrs B apologising for the impact of the fault in relation to not refunding the care fees relating to the supported living placement
- Confirm with Mrs B and refund the supported living fees which have not already been reimbursed. Mrs B may need to provide additional information to the organisations about fees paid as part of this.
- Write to Miss A and Mrs B personally and apologise for the impact the lack of s.117 planning had on both of them individually due to the length of time Miss A went without adequate support. They should also apologise for the uncertainty caused by not knowing whether the incidents outlined above could have been avoided.
- Pay Miss A £1500 and Mrs B £1000 each in recognition of the impact of the and length of time Miss A had a lack of s.117 support
- By 20 February 2020, the Council, CCG and Trust should create an action plan of how they will notify and cooperate with each other to ensure patients are assessed promptly and s.117 care put in place in line with the MHA Code of Practice. This action plan should include a review of progress and the impact of any changes following implementation of the plan.
- I find fault with both the Council and the Trust in relation to the lack of s.117 planning and aftercare. I also find fault with the Council and Trust in relation to not reimbursing the supported living funding. However, I do not find fault with the Council in relation to Miss A’s proposed move to different accommodation and the resultant difficulties she experienced.
Parts of the complaint I have not investigated
- I have not investigated the Trust, St Andrew’s, St George’s or Partnerships in Care in relation to the care Miss A was provided under s.3 of the MHA. This is because complaints relating to functions carried out under s.3 of the MHA are out of the Ombudsmen’s remit. The Care Quality Commission can look at these complaints and I have referred them to the CQC for consideration.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman