Summary: The Ombudsmen will not investigate complaints about a Council and an NHS Trust about events relating to a hospital admission and care arrangements on discharge. There are no indications of fault in how either organisation acted. The Trust has acknowledged some communication issues, but it has already taken appropriate actions to address these. We are therefore unlikely to achieve more by investigating. The Ombudsmen will not investigate a complaint about a safeguarding referral made in 2013 because this is late and there is no good reason why the complaint could not have been made sooner.

The complaint

1. Mr A complains on behalf of his mother, Mrs C, about Leeds City Council (the Council), Leeds and York Partnership NHS Foundation Trust (the Trust) and Touchstone, a mental health service provider.

Complaints about the Trust

2. Mr A complains the Trust implied to Mrs C that social worker involvement was a requirement before it would allow her home in March 2021. He says Mrs C’s psychiatrist did not communicate with him during the hospital admission and the Trust did not consider gradual leave before Mrs C’s hospital discharge. He says this resulted in her readmission soon after.
3. Mr A also complains the Trust referred Mrs C to the Office of the Public Guardian (OPG) about concerns with how her finances were being managed. He says this led to a safeguarding enquiry causing them distress.

Complaints about the Council

4. Mr A says when Mrs C was an hospital inpatient in early 2021, a social worker discussed care provision with her without an advocate present. He says it later misled them by saying the advocate was unavailable because they were on holiday. He also says the Social Worker did not discuss the cost of a care package with him or Mrs C. Mr A says the failings caused his mother distress and to cancel support because of the lack of information.
5. Mr A also complains the Council did not tell him or Mrs C about a safeguarding referral relating to Mrs C’s financial affairs in February 2021. He says this caused them worry and distress when they found out about this.

Complaints about Touchstone

6. Mr A complains that Touchstone did not tell him or Mrs C about a safeguarding referral it made in 2013. He also says it did not provide an advocate when it took Mrs C to the bank around the same time.
7. Mr A says Touchstone would not allow him access to his mother’s records under a subject access request in 2022 without taking excessive measures to check Mrs C’s capacity and consent. He says this means they have been unable to access the records.

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The Ombudsmen’s role and powers

8. 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)
9. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
10. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify their involvement, or
• it is unlikely they could add to any previous investigation by the bodies, or
• there is another body better placed to consider this complaint, or

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

11. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

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How I considered this complaint

12. I considered information provided by the complainant, the Council, the Trust and Touchstone.
13. Mrs C and Mr A had an opportunity to comment on my draft decision and I considered their comments before reaching a final decision.

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My assessment

Relevant law and guidance

Mental Capacity Act

14. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. The MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary.

Lasting Power of Attorney

15. Lasting Power of Attorney (LPA) is a legal document which allows people to choose a person to make decisions about their health and welfare and/or their finances and property. Health and welfare LPAs can only be used when someone no longer has mental capacity, but a property and financial affairs LPA can be used as soon as this is registered.

Section 117 Aftercare

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 Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act. Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for.

Brief background

17. Mr A has LPA for Mrs C for both health and welfare and property and finance.
18. In early 2021 Mrs C was receiving mental health treatment as an inpatient at the Trust. Mrs C’s hospital admission coincided with England being under a third national lockdown because of Covid-19.
19. In February 2021 a family member made allegations to the Trust about how Mr A was managing Mrs C’s finances as her LPA. The Trust referred these concerns to the OPG. The OPG made some enquiries but took no further action.
20. In March 2021 a social worker from the Council visited Mrs C to discuss and assess her social care needs when she returned home. A package of care was agreed. However, when Mrs C returned home, she cancelled this. Mrs C was readmitted to hospital a couple of weeks later.
21. In April 2021 Mr A requested copies of records from the Council. These referenced a safeguarding referral made by Touchstone about him and Mrs C from 2013 about management of her finances.
22. In January 2022 Mr A made a subject access request to Touchstone for records relating to the safeguarding referral in 2013. Touchstone asked to arrange a meeting with Mrs C to satisfy itself about her mental capacity and consent to allow it to share her records. Mr A considered this was excessive and complained to the Information Commissioner’s Office (ICO). He complained to Touchstone in March 2022.

Analysis

Complaints about the Trust

23. The Trust explained that social worker involvement was not a requirement for discharge and apologised that it had given Mrs C this impression. It said it offered social worker support but would always respect anyone’s wishes if they declined this. It accepted there was a need for clear communication to avoid any misunderstandings and said it had discussed this with ward staff.
24. There are differing opinions about what information the Trust told Mrs C and without independent evidence, it would be difficult for us to reach a view. The Trust has already apologised and taken action to prevent similar misunderstandings. This is reasonable and proportionate and it is unlikely we would achieve more by investigating.
25. The Trust accepted that gradual leave would have been best practice, but because of Covid-19 restrictions, this was not appropriate. It explained this was because Mrs C would have needed to isolate on return to the ward and it would therefore not have been in Mrs C’s best interests.
26. During the Covid-19 pandemic restrictions were in place and hospitals worked differently to meet the needs of all patients and staff. Given the national restrictions in place at the time, we are unlikely to find fault by the Trust for not allowing gradual leave prior to discharge.
27. The Trust also explained that during the Covid-19 pandemic there was reduced contact with families and carers on the ward. It said it had therefore since introduced a new system of ensuring staff contact a carer or family member each day to discuss progress with care and treatment. It said this would also give an opportunity to discuss other issues. This shows the Trust has identified there was an issue with communication and acted to address this. These measures should ensure better levels of contact for all inpatients and it is unlikely we would achieve a different outcome by investigating, particularly given most Covid-19 restrictions have since ended.
28. If the Trust had any concerns about how Mrs C’s finances were being managed, it had a duty to pass these concerns on to the OPG so they could be properly considered. The Ombudsmen are unlikely to criticise an organisation for safeguarding individuals where they have sufficient cause for concern. I appreciate Mr A disputes there should have been any cause for concern, but the threshold for any referral of this nature is necessarily low.
29. Mr A said in his correspondence he wanted assurances no referral would be sent to the OPG again. This is not a realistic outcome because it would pre-empt any possible issues that may happen in the future. The OPG closed the case without any action taken. There was therefore no injustice.

Complaints about the Council

30. The Council said Mrs C had capacity to understand discussions about her care package and she had not asked for an advocate to be present. Given that Mrs C had capacity, there is no legal requirement to have an advocate present. As Mrs C agreed to the visit, there are no indications of fault by the Council. However, it is noted the Council said it would take this forward as a learning opportunity and consider requests for an advocate or representative to be present in future.
31. Mr A says the Council told him the advocate was on leave on the day the social worker visited Mrs C, but the advocate’s employer has since confirmed to him they were working. There is no indication the advocate would have been available, even if she was not on leave that day. However, as noted above, Mrs C was considered to have capacity and she agreed the meeting could go ahead to discuss her social care needs. It is therefore unlikely we would achieve more by investigating.
32. I have not seen evidence the Council mentioned if there would be any cost to Mrs C when it assessed her needs. Mrs C agreed to a care package at first and it was only after Mrs C returned home that she decided not to accept the support. Before Mrs C cancelled the care package, the Council spoke to her and explained there would be no cost to her for the care as this would be under section 117. The potential cost of care was therefore not a barrier to Mrs C accepting care and there is no significant injustice.
33. The Council has explained to Mr A there was no safeguarding referral in 2021. As noted above, the Trust referred some concerns to the OPG based on information it received. The Council provided some information to the OPG about this. It would have been inappropriate for the Council to disclose confidential information to Mr A or Mrs C about the OPG’s enquiries. However, there was no adverse outcome from the Council’s involvement and no action was taken by the OPG. There is therefore no injustice relating to the Council’s actions.

Complaints about Touchstone

34. The complaints about Touchstone’s safeguarding referral in 2013 are late. Mr A was aware of the referral after receiving Mrs C’s Council records in April 2021. He complained to Touchstone in March 2022 and to the Ombudsmen in August 2022. Mr A says he was too busy caring for family members to make his complaint sooner. However, I can see he complained to the Council and the Trust in this time, and made an information request to Touchstone in January 2022. Based on the evidence I have seen, there is no clear reason this complaint could not have been brought to the Ombudsmen sooner.
35. In addition, as the events complained about happened so long ago, recollections of specific events by staff are unlikely to be reliable. Also any findings or recommendations we might make are unlikely to be meaningful.
36. The safeguarding referral did not result in any actions being taken against Mr A. There was also no change in terms of how Mrs C’s finances were managed. Therefore even if we did consider exercising discretion with the time limit, there is no evidence Mrs C suffered any significant harm or loss from these historical events. It would not be a proportionate use of resources to investigate these issues.
37. Mr A’s complaint about how Touchstone dealt with his/his mother’s subject access request is not late. However, this relates to data handling by Touchstone. Mr A has already complained to the ICO and it is the appropriate organisation to consider these issues.

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Final decision

38. The Ombudsmen will not investigate these complaints for the reasons set out above.

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Investigator's decision on behalf of the Ombudsman