Summary: Mr and Mrs F complained about the way the NHS Trust which was also acting on behalf of the Council and the Integrated Care Board (ICB), discharged their son, Mr D, from a community treatment order (CTO) in December 2021. Mr F said the organisations did not properly consider Mr D’s aftercare needs in line with the Mental Health Act 1983. We did not find fault in the way the decision was made to discharge Mr D from the CTO. We found fault in the way the organisations considered Mr D’s needs and this likely caused his parents to experience carer’s strain, distress and uncertainty. The organisations have agreed to our recommendations and will apologise to Mr D and his parents and make acknowledgement payments for the injustice caused. The organisations will also act to improve their processes relating to formal consideration of a person’s aftercare needs.

The complaint

1. The complainants, who I shall refer to as Mr and Mrs F, complain about a decision to discharge their adult son, Mr D, from a Community Treatment Order (CTO) in December 2021 as they say more support should have been provided to their son owing to his entitlement to section 117 aftercare in line with the Mental Health Act 1983. The complainants say Oxleas NHS Foundation Trust (the Trust) which was acting on behalf of the Royal Borough of Greenwich (the Council) and NHS South East London Integrated Care Board (the ICB) should have changed the psychiatrist working with their son and should have transferred him to a different team when he requested one. As a result, the complainants said Mr D’s mental health worsened and this had impact on his overall wellbeing. Mr F also says the alleged faults had adverse impact on him and his wife, Mrs F, as the organisations complained about did not put formal support in place, so they had to support their son. The complainants want the organisations to ensure improvements are made so people’s needs are properly considered before being discharged from a CTO.

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The Ombudsmen’s role and powers

2. The Ombudsmen have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
3. 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).
4. 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.
5. The Ombudsmen cannot question whether an organisation’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, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
6. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
7. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

8. I have considered information provided by the complainant and from the authorities complained about. I have also considered the law and guidance relevant to this complaint.
9. All parties had an opportunity to respond to a draft of my decision.

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What I found

Law and guidance relevant to this complaint

10. 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.
11. 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.
12. Section 3 of the Mental Health Act 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 section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
13. 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 person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
14. 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 they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
15. The MHA 1983 Code of Practice (2015) shows professional how to carry out their responsibilities under the MHA and provide high quality and safe care.
16. The Community Mental Health Team (CMHT) provides mental health care support from professionals in the community. This usually includes social workers, community psychiatric nurses, psychologists and psychiatrists.
17. A Community Treatment Order (CTO) is an order made by a responsible clinician to give a person supervised treatment in the community. This means a person can be treated in the community for their mental health problem, instead of staying in hospital. The responsible clinician can return the person to hospital and give immediate treatment if necessary.
18. The Care Act 2014 requires Councils, NHS Commissioners and providers and housing services to work together to provide person-centred care and support. The Care Act puts a particular emphasis on managing people’s needs and preventing them from increasing. This is especially important for people with mental illness.

Background

19. Mr D had involvement with the CMHT referred in the community and the Trust provided information to show its involvement from January 2021. The team is called the Community Mental Health Rehabilitation and Enablement Services (CMHRES). In mid-March 2021 the Trust completed a medical review at Mr D’s home with his parents present. Mr D reported not sleeping and the doctor explained he needed to take his medication to prevent him being admitted to hospital.
20. At the beginning of April Mr D was taken to hospital for a mental health act assessment. He was assessed by a doctor and an AMHP and they decided he met the criteria to be detained under section 2 of the MHA. He was later detained under section 3 of the MHA.
21. At the beginning of July the Trust arranged a section 117 review meeting/CPA review. Mr D was on the ward with a social worker and a care coordinator. Mr D agreed to continue with his medication and the officers explained the conditions of the CTO to him. Mr F said he would be happy to have Mr D at home at weekends and this was arranged. Following weekend leave Mr D was discharged from hospital on 21 July.
22. A doctor and a member of the CMHRES visited Mr D at home to complete a follow up visit. The doctor and the CMHRES officer explained Mr D’s rights relating to the CTO and discussed his medication. Mr D said he was experiencing anxiety and because of this he did not want to go outside. The CMHRES officer suggested psychology would be helpful.
23. Around the same time a care coordinator contacted Mr F and asked him to pass a message to Mr D about completing a care plan. The notes provided by the Trust suggests a care plan was completed near the beginning of August.
24. Mr and Mrs F made reports to the Trust throughout August to say they had concerns because their son was not taking his medication. Mr D also reported issues he felt he was having with his prescribed medication. The Trust’s officer agreed to arrange a medical review.
25. The medical review was completed in early September. Mr D told the doctor he had not taken his medication for 4 to 5 weeks and denied being unwell. The psychiatrist and the care coordinator reminded Mr D about the terms of his CTO and about a possible recall to hospital if necessary.
26. The Trust completed a home visit in October to discuss the outcome of the second opinion appointed doctor (SOAD). SOADs safeguard people who do not agree to their treatment under the MHA or are too unwell to agree. The role of the SOAD is to decide whether the treatment recommended is clinically defensible and whether the views and the rights of the patient have been considered.
27. The documentary evidence provided confirms the SOAD agreed with Mr D’s diagnosis and treatment plan. Mr D asked to be transferred to a different team. The Trust’s officer told him that he needed to resolve his non-compliance with medication before a different team would consider a referral for transfer.
28. In November the CMHRES held a case discussion meeting. The team agreed
    Mr D continues to avoid intervention offers and did not want to work with the team. The team planned to book a family meeting to discuss Mr D’s needs. Professionals concluded Mr D’’s discharge was appropriate if family were happy with the crisis plan.
29. The CMHRES completed the family meeting to discuss the CTO renewal. Mr D said he did not want to work with mental health teams and said he took the medication prescribed by his general practitioner. The notes provided record that Mr D’s parents said they had no concerns about his mental health. The psychiatrist felt Mr D did not meet the criteria for recall because he was not presenting with any relapse symptoms.
30. The Trust discharged Mr D from the CTO at the end of November. The Trust held a CPA discharge meeting at Mr D’s home at the end of December. The care coordinator and the doctor who attended said the benefit of the CMHRES’s involvement was limited because Mr D did not engage with services. The Trust said Mr D’s parents did not have any concerns.
31. Following his complaint to the Trust in January 2022 Mr F asked the Ombudsmen to consider a complaint. He also confirmed Mr D had been readmitted to hospital following relapse in his mental health.

Findings

Consideration of Mr D’s section 117 needs prior to his discharge from hospital

32. In response to our enquiries the Council and the ICB said they were not aware of this case. Both organisations said they had no involvement in arranging or discussing section 117 aftercare for Mr D. The Council and the ICB do not have a written policy on section 117 aftercare but said they work to guidelines from the Directors of Adult Social Services (ADASS).
33. The ICB said it is possible the Trust did not communicate with it when the Trust discharged Mr D from hospital. It said it (and the Council) did not receive a request for services.
34. It is unclear what process or mechanism the Council and the ICB had in place with the Trust to ensure that they acted in line with their statutory responsibilities regarding section 117. In any case the Trust said the CMHRES is representative of both the Council and the ICB. Therefore, the CMHRES was acting on behalf of the Council and the ICB as well as the Trust.
35. The Trust said it would not have routinely informed the ICB and the Council of discharges from the wards except when requesting funding for a care package under section 117. However, I found there was a lack of consideration by the Trust about Mr D’s section 117 needs and it did not complete a formal assessment to support its view.
36. The Trust’s section 117 policy says section 117 should be part of the CPA. It summaries that the CPA should be specifically described as a ‘CPA/s117 pre discharge meeting’. Its policy states “prior to discharge from hospital, all patients will have received a core assessment including an assessment of their needs provided by Social Care funded services under the Care Act.” It says the care plan should indicate that section 117 applies and make clear which services are planned to meet mental health needs and which are based on other needs.
37. The Trust said it completed a CPA review on 8 July 2021. It provided a copy of a letter it sent to Mr D’s general practitioner following the review. This does not provide evidence to show a formal assessment was completed in line with the Trust’s policy or the Mental Health Act code of practice.
38. The Trust cannot provide a copy of a core assessment or care plan it completed as part of Mr D’s discharge from hospital. It is more likely than not the Trust did not complete a core assessment when it discharged Mr D from hospital in
    July 2021. This is fault. This is likely to have meant Mr D was discharged from hospital without having his needs formally considered and recorded. This leads to uncertainty about what services Mr D should have received when he was discharged. However, I cannot say, on balance, that this led to relapse in his mental health.
39. There is evidence to show the Trust provided support to meet Mr D’s mental health needs and had referred him for occupational and psychological therapy. The evidence available suggests Mr D chose not to engage with these therapies. This may have adversely impacted on his mental health but I do not find this was because of fault by the Trust.
40. When responding to Mr F’s complaint and to our enquiries the Trust said Mr D did not need support from social services when he was discharged from hospital. It said in its response to Mr F’s complaint, “it would have been helpful if the CMHRES included information about your son’s section 117 aftercare during the CPA discharge”. The evidence available shows the Trust did not ensure a written assessment was completed to support its view. This is fault which likely contributed to the Council and the ICB not acting in line with their statutory responsibilities regarding section 117 aftercare.
41. The evidence available shows Mr D needed support with housing. Mr F also complained that his son was left with no structure to his day. It is likely that proper consideration of his section 117 needs and other social care needs by the organisations complained could have led to the provision of formal support to promote his wellbeing in line with the MHA and Care Act 2014.
42. The lack of consideration relating to Mr D’s section 117 needs is likely to have left Mr and Mrs F in a position where they needed to provide informal support to their son. The Trust discussed the risk Mr D posed to his parents but there is little evidence to show it properly considered risk management. This is likely to have caused them to experience carer’s strain and distress.

Mr D’s request to be transferred to a different psychiatrist and to a different team

43. The Trust said it faced difficulty transferring Mr D to a different team because of the challenges it was dealing with due to the COVID pandemic.
44. Mr D did not agree with the clinical treatment plan. The Trust said it only had one psychiatrist working within the team. It said it attempted to use a junior doctor within the team rather than the psychiatrist but Mr D and his family requested the transfer to a different team. It said it made a referral to a different team but this was declined. The evidence available suggests the other team would not consider him because he was non-compliant with his medication. The evidence available shows the Trust contacted this team on more than one occasion.
45. The diagnosis of mental health disorders is often a matter of clinical opinion. It is not always possible to make a diagnosis using conventional clinical investigations (such as tests or scans). A psychiatrist will ordinarily compile a clinical history based on information from the records, the patient, their carers and other relevant professionals. The psychiatrist will also record their own observations of the patient’s behaviour. From this, the psychiatrist will attempt to match a patient’s symptoms against clinical descriptions of disorders contained in recognised classification systems.
46. In this complex clinical context, it is not uncommon for differences of opinion to occur. This may mean that clinicians disagree whether a specific symptom is present. Alternatively, clinicians may agree that a symptom is present, but disagree as to its severity and significance in making a specific diagnosis. On other occasions, a change in the patient’s presentation, or the availability of new information, may lead a psychiatrist to revise a diagnosis.
47. To help manage the relationship between Mr D and the psychiatrist the Trust arranged for a second opinion appointed doctor to review the clinical treatment plan. This also meant the SOAD considered the diagnosis and treatment plan. The SOAD did not have a different opinion and the Trust discussed the outcome with Mr D and his parents. This is good practice.
48. The psychiatrist considered the CTO was not beneficial and due to Mr D’s mental state he could be discharged from the CTO. The clinician decided Mr D no longer met the criteria for a CTO. The documentary evidence shows the Trust held a CTO discharge meeting at Mr D’s home with his parents present. The notes of that meeting state Mr D was being discharged to his GP. He was provided with the contact for the crisis team and his GP could also refer him to services if necessary. At the time his mental state was reported as stable.
49. Based on the evidence considered I find the Trust took appropriate action to try and transfer Mr D to a different team. It had limited capacity to transfer him to a different psychiatrist but acted to obtain a second opinion when Mr D disagreed with aspects of his treatment. Therefore, I do not find the Trust at fault regarding this part of the complaint.

Impact on Mr D’s mental health

50. Mr F says the faults had adverse impact on Mr D’s mental health. The evidence available suggests Mr D was non-compliant with his medication. He was also taking medication prescribed from his GP although the Trust’s clinicians felt this was not best practice.
51. If the organisations complained had properly considered Mr D’s section 117 needs and produced a section 117 care plan this would have clearly recorded
    Mr D’s needs. However, this does not lead to view that Mr D would have complied with his medication. Mr D had a history of mental health illness and therefore I cannot say the outcome for him would have been different. However, it is likely the faults identified cause Mr and Mrs F to experience uncertainty regarding this issue.

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Recommendations

52. The organisations have agreed to our recommendations and within one month of our final decision they will take the following action:
• The Trust will act as the lead organisation on behalf of the Council and the ICB and write to Mr D and his parents to apologise for the upset and uncertainty they experienced because of the way they considered Mr D’s section 117 needs and social care needs and the impact this then had on his holistic needs. They will apologise for the impact the faults had on Mr and Mrs F as carers.
• The Trust will also make a symbolic payment of £250 each to Mr and Mrs F on behalf of the Council and the ICB to acknowledge the carer’s strain, distress and uncertainty they experienced.
53. Within two months of our final decision:
• the Council and the ICB will review the agreement they have in place with the Trust to ensure actions it takes on their behalf relating to section 117 discharge planning, properly considers the MHA 1983 Code of Practice and is in line with the Council’s and the ICB’s statutory responsibilities;
• The Council and the ICB will consider and put a process in place so they can monitor and be aware of cases where they have statutory responsibility to provide or arrange section 117 for a person being discharged from hospital.
• The Trust will ensure its officers working with patients eligible for section 117 aftercare are reminded of the need to properly consider its section 117 policy which clearly sets out the process its staff should follow and what legislation and established good practice should be considered when patients are subject to the CPA and eligible for section 117 aftercare. The Trust will provide training to its officers as necessary.
54. The organisations should provide us with evidence they have complied with the above actions.

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Final decision

55. I have found fault with the Trust, the Council and the ICB and I uphold Mr F’s complaint. The organisations have agreed to our recommendations, and this remedies the injustice case. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman