The Ombudsman's final decision:
Summary: The Ombudsmen have upheld Miss X’s complaint about Mr Y’s placement with a supported accommodation provider, which was arranged and funded by the Council and the Clinical Commissioning Group.
- Miss X complains about the care that her son, Mr Y, received from Cherrytrees Care (Cherrytrees) between August 2017 and January 2018. Mr Y’s placement was funded under section 117 of the Mental Health Act 1983 by Surrey County Council (the Council) and NHS Guildford and Waverley CCG (the CCG).
- Specifically, Miss X complains that Cherrytrees did not provide the support or encouragement to allow Mr Y required to participate in meaningful daily activities. She believes this was because staff lacked an understanding of Mr Y’s brain injury. She also says staff failed to provide the care and support set out in Mr Y’s care plan.
- Miss X also complains about the way Cherrytrees communicated its decision to evict Mr Y. She says the manager was not open and honest. She is also unhappy with the complaint responses she has received, particularly Cherrytrees’ letter, which she feels was inappropriate, unprofessional and contained inaccurate information.
- Miss X says the care Mr Y received led to a regression in his mental health and caused him stress, anxiety and a loss of self-worth. She says this has also caused her a great deal of upset. Miss X believes the inaccurate information in Cherrytrees’ complaint response may have consequences for her son’s future.
The Ombudsmen’s role and powers
- 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)
- 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.
- 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 discussed the complaint with Miss X and considered the information she sent in support of her complaint. I have also reviewed Mr Y’s care records, his care co-ordinator’s notes and information provided by the Council.
- Miss X, the Council and the CCG had an opportunity to comment on a draft of my decision and I have taken those comments into account.
What I found
Key legislation and guidance
- Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk, they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Section 3 of the Mental Health Act 1983 is for providing treatment. People discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Section 117 of the Mental Health Act imposes a duty on NHS clinical commissioning groups (CCGs) and council social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients detained under specific sections of the Mental Health Act (e.g. section 3).
- The “Mental Health Act 1983: Code of Practice” is statutory guidance. It says that section 117 aftercare can include supported accommodation and continues as long as the person needs these services.
- Mr Y is an adult with a diagnosis of attention deficit hyperactivity disorder (ADHD), mental health problems including anxiety and a history of alcohol and substance use. These conditions affect his ability to concentrate and process complex information. This was further exacerbated when, in August 2016, Mr Y suffered a brain injury which caused memory loss and impacted on his ability to carry out daily tasks.
- Mr Y has been detained under section 2, and then section 3, of the Mental Health Act 1983 and is subject to s117 aftercare. Following his brain injury, Mr Y spent a prolonged period in an inpatient unit for neuropsychiatry rehabilitation.
- In August 2017, Mr Y was discharged from the rehabilitation unit to Cherrytrees, a 24 hour supported accommodation provider. His placement was funded under section 117 aftercare by the Council and the CCG, with the aim of helping Mr Y re-learn skills and become more independent.
- In late November 2017, Cherrytrees shared a copy of his care plan with Mr Y. The contents of the care plan upset Mr Y greatly and his reaction resulted in Cherrytrees calling the police and deciding to terminate his placement with immediate effect.
- Following intervention from Mr Y’s care co-ordinator, Cherrytrees agreed to allow him to stay until a new placement had been sourced. In late January 2018, Mr Y moved to a new accommodation provider.
Lack of adequate support as set out in care plan
- Miss X complains that Cherrytrees failed to provide Mr Y with the necessary support, structure and encouragement, as outlined in his care plans. She says that Mr Y was left to his own devices and this lack of structure negatively affected his behaviour and increased his anxiety.
- Miss X believes Cherrytrees lacked understanding about the impact of Mr Y’s brain injury. The records show that detailed information about Mr Y’s brain injury and how it affects his behaviour was provided by the inpatient unit to Cherrytrees. The care plan drawn up by Cherrytrees in November 2017 also clearly references this. Therefore, it is apparent that Cherrytrees was aware of this matter. The question is whether it provided appropriate care and support as a result.
- Mr Y was discharged from the inpatient unit with a s117 Mental Health Aftercare Plan. This plan states “Mr Y has benefited from having a daily structure and important messages written clearly on a whiteboard in his room… he requires any information to be given to him in a clear and concise way, as he easily becomes anxious and this impacts greatly upon his processing skills and retaining any information and can interpret any given information incorrectly. Due to his impulsive manner, he needs lots of staff support to engage in meaningful activities. He continues to require daily prompts to complete his basic daily structure, including personal care and laundry…Mr Y will need 1:1 support from staff and his community team to begin to access the community. Mr Y wants to access the community and needs structure and routine in his life as this is something that makes him more comfortable and safe. Mr Y can become anxious without structure and this is when he can resort to using illegal drugs. Staff will engage Mr Y in community, leisure and educational activities. Overall aim of the placement is to enable Mr Y to relearn and acquire new skills and techniques to live independently in the community.”
- Having reviewed Mr Y’s daily care records for his entire stay at Cherrytrees, it can be seen that levels of support varied. When Mr Y first arrived in late August 2017, he was offered regular 1:1 support. The records demonstrate that staff regularly took him food shopping, out for meals, to the shops and to the local swimming pool. The staff also assisted with food preparation and prompted personal care and laundry. For the first six weeks, Mr Y received consistent daily support.
- However, by the beginning of October 2017, the level of support appears to have abruptly dropped off. In October, staff only assisted Mr Y in attending the swimming pool twice and not at all in November, December and January. Aside from a handful of references to supporting Mr Y with the occasional food shop or meal preparation, the daily care notes give little evidence of any other support being provided. Around this time, Mr Y began frequently drinking alcohol, having abstained for the first six weeks, and the number of behavioural incidents sharply increased.
- The daily care notes indicate that resistance from Mr Y had started to increase, often declining staff suggestions for activities, although he would take himself to the swimming pool or into town alone at times. However, Mr Y soon fell into an unstructured daily routine of spending time in his bedroom in the morning and wandering town in the afternoons and evenings, often alone, sometimes visiting pubs.
- The daily care records do not clearly state whether Mr Y began to decline support and his change in behaviour arose from there, or whether his support began to reduce and his behaviour subsequently declined. This is lack of details in the daily care record was fault.
- From October 2017 onwards, the daily care records show little evidence of staff regularly offering and encouraging Mr Y to engage in appropriate activities. Even if Mr Y was choosing to decline support, Cherrytrees should have recorded this and continued to offer support regularly and tried varied suggestions to re-capture his interest. Mr Y’s s117 aftercare plan is clear that he benefitted greatly from daily structure and memory aids, such as messages on a whiteboard, and further notes that without this structure, anxiety can cause Mr Y to turn to substances. There is no evidence that Cherrytrees provided Mr Y with a clear daily routine to help structure his day. The lack of documentary evidence supports Miss X’s account that this did not happen as required by Mr Y’s care plan. My view is that this was fault.
- The daily care records indicate that Cherrytrees accepted Mr Y’s increased drinking with little comment. The records show that at the beginning of Mr Y’s stay, staff were reminding him not to drink when he went out. However, there is nothing in the records to suggest the staff tried to encourage Mr Y not to drink, once this behaviour started to regularly occur in October 2017. The staff simply recorded his behaviour when he returned home intoxicated and the only evidence this issue was addressed with Mr Y was on occasions when he bought alcohol on site, which was a breach of his tenancy. While Mr Y had declined community support for alcohol use, and again cannot be forced to engage, it would have been reasonable for the staff to continue to encourage Mr Y to avoid alcohol and attempted to steer him towards some more productive activities instead. My view is that not doing so was contrary to his care plan and therefore fault.
- It is clear that Miss X had become worried about the changes in Mr Y’s behaviour and she had raised concerns about lack of structure with Cherrytrees. Following the decision to evict Mr Y, Miss X became increasingly concerned about him being left to his own devices and there is a marked rise in the number of times Miss X began to visit Mr Y to take him out in the community. It is apparent that Miss X was unhappy with the social care support being provided to Mr Y and felt that she needed to take responsibility for this herself. This would have added significant additional pressure on to Miss X.
- For example, in a meeting on 25 August 2017, between Mr Y’s care co-ordinator, Cherrytrees’ manager, Miss X and Mr Y, it was agreed that Cherrytrees would arrange gym membership for Mr Y to attend the local gym. While the staff took some steps to progress an application, there was a delay with the gym and it appears little was done to follow it up, despite Miss X’s repeated requests. Eventually, in mid-November 2017, Miss X resolved the matter herself, delivering the membership card to Cherrytrees, having arranged a date for Mr Y’s induction. Cherrytrees’ failure to complete Mr Y’s gym membership – being one of only a few activities which interested him – despite three months having passed, is fault.
- In late November 2017, Cherrytrees completed their care plan and shared it with Mr Y. By this point, Mr Y has been resident at Cherrytrees for three months. My view is that taking three months to produce a detailed care plan is too long and fault. This led to an unacceptable delay in Mr Y and staff knowing exactly what care Mr Y should get every day. The contents of the evaluation column of Mr Y’s care plan was inappropriate because it lists, with very specific detail, every behavioural incident involving Mr Y since his arrival at Cherrytrees. While it was reasonable for the care plan to refer to risks and care associated with Mr Y’s behaviour, the detailed list of every individual incident was unnecessary and was clearly distressing to Mr Y when he read it.
- Further, the way the care plan was shared with Mr Y was inappropriate because it was contrary to advice in his s117 aftercare plan which states that Mr Y can have difficulties processing complex information and can become highly anxious if information is not shared concisely and clearly. Mr Y was invited to a meeting with the manager to discuss his care plan, despite it being noted on multiple documents that Mr Y often did not engage well with meetings as they increase his anxiety. Mr Y declined the meeting and asked to take his care plan away to his room to read privately. Mr Y then took the care plan, which ran to twelve pages long and contained detailed criticism of his behaviour, to read alone and with no support. Mr Y was deeply unhappy with the content and confronted the manager.
- During the course of this investigation, the Council has acknowledged that the care plan tends to focus on negative incidents and there is no evidence of the care plan being shared with Mr Y in an easy to read format.
- Given Mr Y’s history of anxiety and problems processing complex information, along with the level of detail around risk incidents included in the care plan, it is not surprising that Mr Y was upset by the content. Had the content of the care plan been more worded more appropriately and if it had been shared with Mr Y in a more suitable way for his needs, the risk of Mr Y reacting badly may have been reduced.
- On the whole, the support offered by Cherrytrees was not consistently in line with Mr Y’s care plans and there is limited evidence of staff encouraging Mr Y in activities after the first six weeks. This has caused unnecessary stress for Miss X and may have impacted on the unproductive ways Mr Y increasingly chose to spend his time. Mr Y had started to resist staff support and we cannot know whether continued encouragement from staff would have been effective in re-engaging him, however there was a missed opportunity to try and help Mr Y restructure his days productively.
- It is understandable that Miss X feels this lack of support had a negative effect on Mr Y’s wellbeing. However, having reviewed the psychiatrist’s reports, there is no medical evidence that Mr Y’s mental health declined during his time at Cherrytrees.
- Miss X complains about the way Cherrytrees communicated with her, particularly around the decision to evict Mr Y. She says the manager left her out of important conversations and has not been honest.
- Miss X has been provided with conflicting information about who made the decision to evict Mr Y from Cherrytrees. In the complaint response to Miss X, the Cherrytrees manager said he was clear that he simply “advises the Community Mental Health Team (CMHT) about the risk and suitability of a placement, however it is ultimately the CMHT makes decision on a person’s placement”. However, the Council’s complaint response confirms that it was Cherrytrees who made the decision, in isolation, to evict Mr Y.
- Having reviewed the care co-ordinator’s documents, it is clear that Cherrytrees made the decision to serve notice on Mr Y. The manager contacted the care co-ordinator to say notice was to be served with immediate effect and Mr Y was to leave the premises within 24 hours. The care co-ordinator responded with surprise that matters had suddenly escalated to that point and asked Cherrytrees to allow Mr Y to remain there while options were explored. It is unclear why Cherrytrees indicated they were not responsible for the decision, however this was factually inaccurate and has caused Miss X confusion and frustration.
- Further, there is evidence that Miss X was not always properly involved by Cherrytrees. When responding to Miss X’s complaint, the Council has acknowledged that Miss X was not informed or invited to ongoing meetings between Mr Y’s care co-ordinator and Cherrytrees. This is fault and the Council has apologised to Miss X.
- Cherrytrees say that Mr Y’s behaviour following up to the incident on 22 November impacted on their decision to evict. However, there is little evidence to suggest that Cherrytrees took steps to formally address Mr Y’s behaviour at an earlier stage. When Miss X called Cherrytrees for updates, the daily care records generally records staff advising Miss X that Mr Y was doing well. It wasn’t until 19 November 2017, after several incidents of inappropriate language had occurred that week, did the manager inform Miss X what had happened. On the same day as the manager spoke to Miss X, it is recorded that the manager had planned to speak to Mr Y however Mr Y had already left the building. There is no evidence that the manager spoke to Mr Y on his return, that any formal verbal or written warnings had been issued or that Cherrytrees had advised the care co-ordinator that Mr Y’s behaviour was escalating to levels that were serious enough to threaten his placement. As such, there were missed opportunities to address Mr Y’s behaviour at an earlier stage, which may have reduced the risk of it escalating to an unacceptable level.
- Cherrytrees approached the CMHT directly, following their decision to serve notice. The decision was not discussed with Miss X until a week after the decision had been made.
- Finally, Cherrytrees has accepted that on at least one occasion the manager did not return Miss X’s call as he had nothing further to add. It was poor service to leave Miss X awaiting a phone call without notifying her that it would not be happening.
- Overall, there are multiple times when Cherrytrees’ communication fell short of the expected standards. Miss X was left feeling frustrated, helpless and excluded from important decisions.
Cherrytrees’ complaint response
- Miss X complains that Cherrytrees’ complaint response, dated 21 February 2018, was poor and contained inappropriate information from Mr Y’s medical and criminal records which may have consequences.
- My view is that there was fault in Cherrytrees’ complaint response because:
- it goes into unnecessary detail about Mr Y’s previous medical and criminal history and lists every incident at Cherrytrees involving Mr Y even when these are not relevant to the complaint points raised by Miss X;
- in several places, this information is inserted as a response to Miss X’s questions and then fails to address the points raised; and
- it directs Miss X straight to the Ombudsman without advising her that she could complain to the Council.
Council’s complaint response
- While the Council’s complaint response, dated 21 December 2018, acknowledges some fault by Cherrytrees, it did not fully address all the points raised. Several times the Council declined to comment due to not having access to Cherrytrees records. It is not acceptable to not take a view on so many points when, as a joint commissioner of the service, it should have requested Cherrytrees’ records and reviewed them to reach an informed decision.
- The Council also declined to comment on direct interactions between Cherrytrees’ manager and Miss X, however overlooked that some points had already been confirmed in Cherrytrees’ complaint response, for example that the manager accepted not returning some of Miss X’s phone calls and his advice that CMHT had made the decision to service notice.
- The Council’s response stopped short of taking a view on the way Cherrytrees’ shared Mr Y’s care plan with him, aside from saying it should have been shared in a ‘safe and productive’ way, which clearly had not happened. It wasn’t until the Ombudsmen’s investigation that the Council acknowledged that the care plan had not been shared in an easy to read format and the contents could have been upsetting to Miss X and Mr Y.
- Within one month of my final decision, the Council and CCG will
- Write to Miss X and Mr Y, acknowledging the fault identified in this decision and offering meaningful apologies
- Jointly pay Mr Y £500 for failure to provide support as outlined on his s117 aftercare plan, delayed care planning, loss of opportunity to re-engage him and distress as a result of poor communication around his care plan and eviction
- Jointly pay Miss X £150 for poor complaint handling, stress and inconvenience.
- Care planning
- Daily record keeping
- Complaint handling, including ensuring all points are responded to adequately and complainants are properly signposted should they wish to escalate their complaint.
Parts of the complaint that I did not investigate
- I have not investigated complaints about management of Mr Y’s money, provision of milk and room standards as it was unlikely fault would be found. Finally, I have not investigated the way Cherrytrees’ manager spoke with Miss X as I am unlikely to be able to make a finding due to conflicting accounts of the conversation and the lack of independent evidence to confirm either view.
Investigator’s final decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman