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London Borough of Brent (20 004 266)

Category : Adult care services > Other

Decision : Upheld

Decision date : 30 Mar 2022

The Ombudsman's final decision:

Summary: We found fault with the care and treatment provided to Mr B over the period June 2018 to May 2019. These faults caused avoidable distress and frustration to Ms B. We recommended an apology, service improvements and financial recompense to address this injustice

The complaint

  1. Ms B complains Central and North West London NHS Foundation Trust (the Trust) and Brent Council (the Council) failed to safeguard her brother, Mr C, between June 2018 and his death in May 2019.
  2. Specifically, she complains:
    • The Council and Trust placed Mr C in unsupervised accommodation near a main road, despite numerous reported incidents of him wandering onto a main road. Ms B says the police recorded three incidents in June 2018 alone, and both she and Mr C’s carers continued to witness this behaviour.
    • Ms B complains the Council and Trust ignored this immediate and life-threatening risk to Mr C. Ms B states Mr C had previously been hit by a train and broke both arms and he was blind in one eye.
    • Mr C did not have capacity to decide to stay in the accommodation, yet the Council and Trust left him placed there anyway.
  3. Mr C was hit by a car and killed when he walked on to the main road in May 2019. Ms B feels this was avoidable and this has caused her significant distress and frustration.
  4. Ms B would like the Council and Trust to acknowledge they failed her brother and explain what went wrong with his care. She would also like them to apologise for these failings. Ms B is seeking financial recompense in recognition of the distress this caused her.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
  2. 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.
  3. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  4. 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

  1. I considered the complaint Ms B made to the Ombudsmen and information she provided on the telephone and by email. I also considered the information provided by the Council and Trust in response to my enquiries. I got clinical advice from a Consultant Psychiatrist with 25 years’ experience in adult general psychiatry.
  2. I shared a confidential draft with Ms B, the Council and the Trust to explain my provisional findings and invited their comments. I considered these comments before making a final decision.

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What I found

Background

  1. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Usually, three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in Mental Health Act detentions and another doctor. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. Admission should be in the best interests of the person, and they should not be detained if there is a less restrictive alternative.
  2. The purpose of detention under section 2 of the Mental Health Act 1983 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.
  3. The Council and Trust cared for Mr C from 2017 until his death, his main diagnosis was schizophrenia. The two organisations agreed to provide a joint service to help Mr C. The Council delegated the work to the Trust who then provided his care. He had complex needs and was detained in hospital under section 2 of the Mental Health Act 1983 on two occasions in this period of care. Both times when Mr C’s detention ended, he left hospital without telling anyone and staff discharged him in absence.
  4. Mr C showed dangerous behaviour when trying to cross a busy A road outside his home. His carers saw him doing this and the police spoke to him. He also showed a lack of risk awareness by disabling the fire alarm in his bedroom and leaving lit cigarettes on furniture. Ms B asked the Council and the Trust to move Mr C to a different housing location many times. The Council and Trust said Mr C had capacity to make his own decisions on where he wanted to live, even if his sister did not think this was the best choice.
  5. In May 2019, Mr C was killed in an incident on the busy A road.
  6. Ms B was part of Mr C’s care since his youth. She was his only surviving relative in England and visited him weekly, taking him home cooked food, buying clothes, and taking him to the barbers and the supermarket. She also raised concerns about Mr C remaining in the accommodation for other fears for his safety. She knew he received threats from drug dealers, and he could not protect himself because of his illness. He was assaulted and cut his face. Ms B made several formal complaints to both organisations and had several responses.
  7. Ms B remained dissatisfied and brought this complaint to the Ombudsmen. This investigation has only considered information from the period June 2018 to May 2019.

Relevant Legislation and Guidance

  1. I have considered the following legislation and guidance as part of this investigation:
    • The Mental Health Act 1983 (the MHA)
  • The Mental Capacity Act 2005 (the MCA)
  • The MCA Code of Practice 2007
  • The Department of Health, Mental Health Act 1983: Code of Practice, 2015
  • National Institute of Clinical Excellence (NICE) guideline 108: Decision-making and mental capacity, October 2018
  • General Medical Council (GMC) Good medical practice, March 2013
  • NICE guideline 53: Transition between inpatient mental health settings and Community or care home settings, August 2016
  • NICE guideline 5: Medicines optimisation: the safe and effective use of medicines to enable the best possible outcome, March 2015
  • NICE guideline 136: Service users experience in adult mental health, May 2014
  • PHSO Principles of Good Administration, February 2009
  • Central and North West London NHS Foundation Trust Care Programme Approach (CPA) Policy, January 2015
  • PHSO Guidance on Financial Remedy, February 2009

Analysis

Mr C’s capacity (June to late October 2018)

What happened

  1. In June 2018, the police recorded three incidents when Mr C walked out on to a busy A road. They saw him jumping the barriers in the central reservation and showing worrying behaviour.
  2. A note in Mr C’s records from 3 July 2018 stated he wanted to stay in his accommodation, but we do not know if he had capacity to make that decision.
  3. On 24 August 2018 a note said he was “adamant that he does not wish to move to accommodation with more support. This has been explored with him on several occasions.” The records do not give details, so we do not know what was discussed or if a mental capacity assessment was done.
  4. On 17 October 2018, his records say he had poor mental capacity; “he is not able to weigh up and evaluate the information being given to him… therefore making it clear that he lacks capacity.” We do not know if his lack of capacity was only about welfare, or in general.

What should happen

  1. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make certain decisions for themselves. The MCA (and its Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to decide, how to do this, and how to make a decision on behalf of somebody who cannot do so.
  2. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
    • because they make an unwise decision;
    • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
    • before all practicable steps to help the person to do so have been taken without success.
  3. However, professionals must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
  4. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
    • Does the person have a general understanding of what decision they need to make and why they need to make it?
    • Does the person have a general understanding of the likely effects of making, or not making, this decision?
    • Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
    • Can the person communicate their decision?
  5. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
  6. NICE NG108 says at paragraphs 1.4.28 and 1.4.29 “the person assessing mental capacity should record:
    • the practicable steps they have taken to help the person make the relevant decision for themselves and any steps taken by other parties involved
    • whether the person has capacity to make the decision

All assessments of mental capacity must be recorded at an appropriate level to the complexity of the specific decision being made at a particular time. This may be as a stand-alone assessment document, contained within the individual's health or social care record or in care and support plans, following local policy. The timescale for review of the assessment should be specified and recorded.”

Findings

  1. The note from July 2018 should have prompted a detailed assessment of Mr C’s capacity. A review of Mr C’s records up to this point does not show any detailed assessment of his capacity about changing accommodation. Also, the records about Mr C’s capacity in October 2018 do not state whether the assessment related only to his welfare or affected other decisions such as where he should live.
  2. The Trust has not given evidence of a capacity assessment and therefore cannot say Mr C had capacity to choose his accommodation. This is fault.
  3. Ms B worried about Mr C’s risky behaviour and thought while he lived next to a busy A road, he was in danger. She was acting in her brother’s best interests and wanted to ensure his safety. Ms B was upset and left with uncertainty about Mr C’s safety. The failure to conduct a prompt capacity assessment left her with concerns about whether the service could and should have done more to protect him. This is an injustice to her.

Missed Mental Health Act assessment in October 2018

What happened

  1. Mr C’s records show the team supporting him noted he needed an MHA assessment on 2 October and made a referral. On 5 October a clinician saw Mr C and he told them he would accept support. There are then no notes until 9 October, when a psychiatrist asked for the team to send the MHA assessment form to the MHA team, to arrange an assessment. The form was not sent until 17 October after Mr C saw a member of the team. The assessment was booked for 23 October. The assessment did not take place due to double booking by the Trust. There is no note to reschedule.
  2. On 27 October 2018, passers-by saw Mr C acting strangely in the street and called an ambulance. It took him to hospital for an assessment. Staff found Mr C did not have capacity to understand his illness or the need to take medication. Professionals completed an MHA assessment and detained Mr C under Section 2.

What should have happened

  1. The GMC’s Good Medical Practice guidance explains the need to give care in a timely fashion. The MHA Code of Practice 14.35 states “to fulfil their statutory duty, local authorities should have arrangements in place in their area to provide a 24-hour service that can respond to patients’ needs”. The responsibility sits with the Council, but the Trust was managing Mr C’s care by agreement.

Findings

  1. The Trust identified the need for an MHA assessment on 2 October, but it did not complete it in a timely fashion. There were unexplained delays when the form was submitted. The assessment was only completed because Mr C was taken to hospital.
  2. The Trust should have done the MHA assessment quickly and it should not have taken a serious incident to prompt it to act. This is fault.
  3. The Trust has not explained how it double-booked the appointment and not provided any reassurance it could not happen again. It has also not explained why the assessment was not rebooked. This is also fault.
  4. Ms B knew Mr C went to hospital after he showed dangerous behaviour. Ms B had been telling the team she had concerns about Mr C since July 2018 and that it took no action sooner. When the Trust told Ms B that her brother was being detained, she told them she felt this should have happened sooner. The delay in the MHA assessment and the fact it took a serious incident to ensure Mr C was assessed caused Ms B worry and upset. She felt action they should have been taken sooner by the team providing his care. This is an injustice to her.

Actions when Mr C left hospital in December 2018

What happened

  1. The Trust detained Mr C in Park Royal Hospital in late October 2018. He stayed there involuntarily until early December 2018 when his detention under section 2 ended. On 4 December he went absent without leave. A multidisciplinary team (MDT) discharged him in absence the following day. The discharge plan did not list Mr C’s medication or explain how he would receive it.
  2. Ms B became more worried after Mr C left hospital as she thought he was still unwell and spoke to his care team.
  3. On 12 December, Mr C told his GP he felt suicidal, and he damaged his accommodation. The GP asked the Police and paramedics to check if he was well. The GP contacted the Trust and raised concerns telling it Mr C was unwell and should be in hospital. The GP said communication had broken down and this was having a negative effect on Mr C. The GP added they had not received the discharge notification and Mr C may have the wrong medication. The GP said the Practice had discharged Mr C because he did not live in its catchment area. The GP raised these concerns with the Trust so it could set priorities for his care. Later the same day a note shows the prescribed medication was wrong, and a new prescription issued immediately.
  4. On 14 December a note states home treatment would be “practically unachievable" due to issues with access.
  5. On 18 December, Mr C’s GP contacted the Trust to explain Mr C was attending the Practice daily, he was shouting and demanding medication. The Trust explained it had made a request for assessment the previous day. The Trust advised the GP to contact the police if they were having problems with Mr C’s behaviour.
  6. After these calls, a support worker did not visit Mr C until 28 December, and they did not conduct the assessment until 21 January 2019.

What should have happened

  1. NICE guideline 53: Transition between inpatient mental health settings and Community or care home settings which at 1.6.3 states “At discharge, the hospital psychiatrist should ensure that:
    • Within 24 hours, a discharge letter is emailed to the person’s GP. A copy should be given to the person and, if appropriate, the community team and other specialist services.
    • Within 24 hours, a copy of the person’s latest care plan is sent to everyone involved in their care.
    • Within a week, a discharge summary is sent to the GP and others involved in developing the care plan, subject to the person's agreement. This should include information about why the person was admitted and how their condition has changed during the hospital stay.”
  2. At 1.5.21 it says when preparing for discharge “mental health practitioners should carry out a thorough assessment of the person’s personal, social, safety and practical needs to support discharge.”
  3. NICE guideline 5: medicine optimisation, states in all care settings “practitioners should proactively share complete and accurate information about medicines ideally within 24 hours”.
  4. GMC Good Medical Practice guidance 35 states “you must work collaboratively with colleagues, respecting their skills and contributions." At 36 it states, “you must treat colleagues fairly and with respect.”
  5. NICE guideline 136; Service users experience in adult mental health, 1.4.8 states “ensure that service users have timely access to the psychological, psychosocial and pharmacological interventions recommended for their mental health problem.”

Findings

  1. The team did not identify Mr C had the wrong medication until his GP complained on 12 December. This is fault. Also, there is fault in the discharge process and in not sharing information about Mr C’s discharge and medication with his GP. Because of these faults, Mr C had either no, or the wrong medication for nine days. This is likely to have prevented proper and effective control of some symptoms.
  2. Mr C was discharged in absence by an MDT and staff did not look at any possible problems before discharge. The team should have continued to work with Mr C and review any practical needs so it could provide the best support. The home treatment team (HTT) should have made efforts to explore other methods of access before saying he was not suitable. Mr C said he was willing to engage with the HTT after his discharge and a note in his records supports this. Mr C’s clinical need showed he was suitable for HTT and it was wrong not to offer Mr C this form of support because of access issues alone. This is fault.
  3. Mr C said he was willing to engage with the home treatment team. This is a missed opportunity for the service to work with Mr C and it might have helped him.
  4. The Trust did not treat the GP’s concerns seriously when they told the Trust of their concern for Mr C’s wellbeing and did not work with them effectively. The Trust’s response to the GP does not try to understand Mr C’s behaviour or if he was a risk to himself or others. This is not in line with guidance and is fault. This is a missed opportunity for the Trust to work with the GP to ensure Mr C was receiving the care he needed.
  5. The delay in assessment when Mr C was showing concerning behaviour is not in line with guidance. This was the second time the Trust on behalf of the Council did not carry out an assessment in a timely manner. This is fault.
  6. Ms B was uncertain at the time that Mr C was receiving the care he needed and continually asked his care team to help him. She is upset knowing the service missed opportunities to help Mr C before he was hospitalised. She said throughout his care, and maintained after his death, that Mr C was failed by the organisations who cared for him. She is frustrated they did not listen, and this has continued. This is an injustice to her.

Actions when Mr C left hospital in February 2019

What happened

  1. Mr C went absent without leave from hospital on 1 February 2019 after it revoked his section 2. He had no medication when he left hospital. He was no longer registered with a GP so had no way to obtain any without help from the care team.
  2. The Trust are responsible for his medication after discharge. It calls this supply ‘to take away’ (TTA). A note from 5 February says “Mr C needs to return to the ward and if he is discharged he will be given 2 weeks TTAs”. We do not know if staff told Mr C he would need to do this. The same day a care-coordinator visited him and raised concerns “it is not safe to discharge him without him [not] having GP.”
  3. On 7 February it planned to send his TTA supply with the HTT and discharge him. On 15 February the Trust discharged Mr C to the community mental health team because of lack of contact with the home treatment team. The records show a contradiction about access to Mr C. A note from 21 February says carers were seeing him five times a week and had no problems with access as they had a set of keys. The records do not show if the Trust explored this with Mr C or his landlord to help the HTT get access to him.
  4. Mr C did not receive any medication until 1 March.

What should have happened

  1. GMC Good Medical Practice guidance states mistakes should be corrected promptly and steps taken to ensure they do not happen again.
  2. The PHSO’s Principles of Good Administration also state “when mistakes happen, public bodies should acknowledge them, apologise, explain what went wrong and put things right quickly and effectively.”

Findings

  1. The Trust allowed the same issue to happen to Mr C after his discharge twice. The reoccurrence shows the Trust did not learn any lessons. It did not make any changes to ensure Mr C’s wellbeing. This is fault.
  2. The delay in providing medication for one month is also fault. The Trust failed to provide Mr C with timely care in line with GMC guidance and failed to support his discharge. This is the second time there was a delay in providing him with medication.
  3. The records do not show any evidence the Trust considered his continuing medication needs and there was no emphasis on the urgency of a high-risk patient, recently discharged from section 2 being without his medication.
  4. Ms B was aware Mr C had left hospital and did not have his medication. She spoke to the team to try and arrange his medication and was worried that a repeat of the events in October could result. This caused Ms B unnecessary worry and distress for her brother’s safety, and she was concerned that without his medication he would need to go back to hospital. This is an injustice to her.

Events in May 2019

What happened

  1. On 1 May, a practitioner saw Mr C standing in the middle of the road; behaviour Ms B had raised concerns over many times. The note explains “at one point he stood in the middle of the road and was preoccupied, shut his eyes and was responding to external stimuli. We had to coherse [sic] him into safety by leading him from the middle of the road to the pavement.” This suggests Mr C was unwell and may have been experiencing hallucinations which made him show dangerous behaviour.
  2. The note states the practitioner checked his medication box, but it does not say if Mr C was taking his medication as prescribed. The records do not say if staff explored these observations with him. We do not know if they asked him what he was doing or why. There is also no evidence if staff considered further action.
  3. The service told Ms B about the incident and again she told them he should not be living next to the busy A road. There was no further contact between the team and Mr C before his death.

What should have happened

  1. The Trust’s Care Programme Approach Policy does not outline minimal contact, but it does state patients can expect “support according to need” with “needs kept under continual review”.

Findings

  1. The way Mr C behaved when he was last seen by the service suggests his needs had changed and he did not have the correct support in place. The Trust’s actions are not in line with policy.
  2. The Trust could have considered discussing Mr C with his care team or asked for a psychiatrist to review. Ms B told the Trust about this risky behaviour many times and so it was aware of the risk to Mr B. It took no further action. This is fault.
  3. When the service told Ms B about this incident, she repeated that he should not be living there. The Trust did not respond to her concerns.
  4. Mr C was then killed on the road which Ms B had warned the team about. Ms B was left not only grieving for the loss of her brother, but she was not able to move on and find closure because she felt the service had failed him. Pursuing the complaint has added to her grief as she has tried to get answers. This is an injustice to her.

Summary

  1. In summary, this investigation has identified several areas where the care provided to Mr C by the Trust and the Council fell below the expected standard.
  2. We found that from July 2018 the Trust acting in its own right and on behalf of the Council failed to:
    • Properly consider Mr C’s capacity to decide where he wanted to live, and this left him in a place which was a danger to him
    • Act with urgency after identifying Mr C needed an MHA assessment at the start of October 2018, including failing to re-book the assessment after its own mistake meant it did not happen
    • Notice Mr C had the incorrect medication when he left hospital in December 2018
    • Tell his GP that he had been discharged in absence in December 2018
    • Fully explore home treatment options when Mr C left hospital in December 2018
    • Work collaboratively with Mr C’s GP when they raised concerns about his welfare in December 2018
    • Act with urgency again after identifying Mr C needed a MHA assessment in mid-December 2018
    • Explore home treatment options fully again after Mr C left hospital in February 2019
    • Take action to ensure Mr C had his medication after he left hospital in February 2019
    • To take action to assess Mr C’s needs after he showed risky behaviour in May 2019.
  3. These faults mean it is understandable Ms B has been left with considerable distress. She also believes had these repeated, serious faults not occurred, more could have been done to keep Mr C safe. There are too many variables and uncertainties for us to say that, even on the balance of probabilities, Mr C could still be alive if these faults had not occurred. However, Ms B would not have been caused the upset, distress, and frustration at having to voice her concerns repeatedly.

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Agreed actions

  1. Following Mr C’s death, the Trust carried out a serious incident investigation and made four recommendations;
    • The care coordinator to review the risk assessment policy and receive training on the correct procedure for completing the risk assessment system, SystmOne,
    • The care coordinator to ensure conversations regarding the change in zoning levels is clearly documented in line with operational policy
    • The care coordinator to attend training on record keeping,
    • Clinical staff to attend practice development teaching session about the lessons learnt from the root cause analysis: the importance of discussing new risks and documenting these discussions to demonstrate the rationale for risk management plans,
  2. We have seen no evidence of completion of these recommendations.
  3. When a council commissions another organisation to provide services on its behalf it remains responsible for those services and for the actions of the organisation providing them. So, although I found fault with the actions of the Trust, I make recommendations to the Council and Trust as the Trust was acting on behalf of the Council, as well as acting in its own right.
  4. Therefore, the Ombudsmen recommended, and the organisations agreed, that within one month of the date of this decision the organisations will jointly write to Ms B to:
    • Acknowledge its responsibility for the faults identified in paragraphs 33 – 57,
    • Apologise for the impact of the faults to Ms B, in terms of the avoidable frustration and distress it caused,
    • Provide evidence to Ms B and the Ombudsmen of completion of the recommendations made in the serious incident report of 12 September 2019,
    • Ensure all staff are aware of the discharge process following the end of section 2 hospital admission, especially if a user goes absent without leave and requires discharge in absence. If Council staff are not included in the MDT, please ensure all relevant staff are included in the learning
    • Provide evidence of learning taken from this investigation which will lead to action to prevent recurrences.
  5. The organisations have also agreed to our recommendation to pay Ms B £500 each to recognise the impact that raising her concerns about Mr C’s safety had on her over a significant period of time.

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Final decision

  1. I uphold Ms B’s complaint. I found fault which led to an avoidable injustice to Mr C and a further injustice to Ms B. The agreed recommendations will provide a suitable remedy.

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Investigator's decision on behalf of the Ombudsman

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