Summary: We will not investigate this complaint about a review of a man’s eligibility for s117 aftercare. The recommendation from the review was not enforced and Mr X remains eligible for s117 aftercare. The Trust also apologised for the stress and frustration the failings in the process caused Mr X’s wife. We consider it is unlikely that an investigation would achieve anything more.

The complaint

1. Mr X was eligible for aftercare under section 117 (s117) of the Mental Health Act 1983 (the MHA). He lived in a specialist Care Home and s117 aftercare funding paid the fees for the placement.
2. Mr X was resident in Essex when he was detained under the MHA and became eligible for s117 aftercare. Essex County Council (the Council) and NHS Hertfordshire and West Essex Integrated Care Board (the ICB) were jointly responsible for Mr X’s s117 aftercare. Essex Partnership University NHS Foundation Trust (the Trust) was responsible for Mr X’s care coordination including arranging reviews of Mr X’s mental health and needs.
3. Mrs X, Mr X’s wife, complains about a decision made by the Trust and the Council in August 2022 to discharge Mr X from s117 aftercare. Mrs X complains the organisations effectively made this decision before the meeting at the end of August 2022. Mrs X complains that the review meeting itself was not conducted in line with guidance and that there was no proper justification for the decision. Further, Mrs X complains that the Trust and the Council acted with unnecessary haste, and without following proper processes, after the review meeting. She said these events caused her an avoidable and stressful ordeal.
4. In bringing her complaint to the Ombudsmen Mrs X said that she would like confirmation that the attempt to rescind Mr X’s s117 aftercare was invalid and for Mr X’s s117 status to be fully recognised. Mrs X would also like proper recognition of the failings she complains of.

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The Ombudsmen’s role and powers

5. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start, or may decide not to continue with, an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• it is unlikely they could add to any previous investigation by the bodies and further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

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

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How I considered this complaint

6. I considered information provided by the complainant, the Council and the Trust.
7. I considered the Ombudsman’s Assessment Code.
8. I shared a confidential copy of my provisional decision with Mrs X and invited her comments on it.

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What I found

Section 117 of the Mental Health Act 1983

9. Under the MHA, 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.
10. Under s117 of the MHA, local authorities and integrated care boards have a duty to provide or arrange free aftercare services for people who have been detained under certain qualifying sections of the MHA. This includes people detained under Section 3. They must provide these services from the point the person leaves hospital until the local authority and integrated care board decide the person no longer needs them.
11. S117 aftercare services must meet a need arising from, or related to, that person’s mental condition. The aim of these aftercare services is to reduce the risk of the person’s mental condition worsening and thereby reduce the risk of further hospital admissions.
12. S117 says that local authorities and integrated care boards should provide aftercare services until they are both satisfied the person no longer needs them. The MHA Code of Practice (2015) notes that the “circumstances in which it is appropriate to end section 117 after-care will vary from person to person and according to the nature of the services being provided” (paragraph 33.20).
13. A Department of Health Circular from 2000 (HSC 2000/003 : LAC (2000)3 – 10 February 2000 – After-care under the Mental Health Act 1983: Section 117 After‑Care Services) also noted that “It is for the responsible health and social services authorities to decide in each case when after-care provided under section 117 should end, taking account of the patient’s needs at the time”.

Brief background

14. Mr X was detained under s3 of the MHA in 2016 and became eligible for s117 aftercare. In early 2017 a multi-disciplinary team decided that Mr X would need specialist supported residential accommodation to prevent a deterioration in his mental health, and to prevent a readmission to a mental health inpatient facility. He moved to a suitable Care Home in the spring of 2017, funded through s117 aftercare. By 2022 Mr X was in the same Care Home with the same funding arrangements.
15. Staff from the Trust arranged a review of Mr X’s needs for the end of August 2022. On the day of the proposed review the Care Home posted a warning on its front door to instruct visitors not to enter, for the purpose of infection control. Mrs X read this warning and returned home. The professionals continued with the meeting in Mrs X’s absence. They decided that Mr X’s needs had changed and that he no longer needed s117 aftercare.
16. A Council social worker telephoned Mrs X two days later and said that Mr X no longer needed s117 aftercare. They said professionals would assess Mr X’s eligibility for Continuing Healthcare (CHC) funding. In addition, the social worker said the Council would complete a financial assessment to determine if Mr X needed to pay toward the cost of his care when the s117 aftercare funding ended.
17. Over the following weeks the Council, the Trust and a local integrated care board (ICB) proceeded with these plans. Throughout Mrs X’s communication with the organisations she disputed the validity of the review of Mr X’s needs and the outcome. She said she considered Mr X was still entitled to s117 aftercare and, as such, would not engage in the proposed assessments.
18. Toward the end of September 2022 the Trust offered to arrange another review of Mr X’s needs, to be completed virtually via videoconferencing software. Mrs X did not consider the offer represented a genuine undertaking to review Mr X’s needs with an open mind. She said she would not participate.
19. Mrs X also complained to the Trust. She complained about procedural failings in the way staff had reviewed Mr X’s needs and about the decision they reached. The Trust forwarded the complaint to the Council for it to respond as well.
20. The Council replied to Mrs X’s complaint in early November 2022. It said its review of the case had highlighted the need to fully involve the patient and their carer. The Council said there were shortcomings in the review of Mr X’s needs which meant this did not happen. The Council said, as such, Mr X’s s117 aftercare services would remain in place, fully funded by the ICB. It said the funding would remain in place until another review could be completed involving Mrs X.
21. The Trust responded to Mrs X’s complaint in late March 2023. It acknowledged that the review of Mr X’s needs should have involved her. It also accepted that it had not told her the outcome of the review in writing, or told her of her right to appeal the decision or of her right to advocacy.
22. The Trust acknowledged the frustration and anxiety these events had caused Mrs X. It apologised for this. The Trust said it would learn from the complaint and discuss key points with relevant staff and incorporate them into s117 training. The Trust also confirmed that Mr X remained eligible for s117 aftercare and said it would contact her to arrange a further review.
23. In early December 2023 the Trust confirmed to the Ombudsmen that Mr X remained eligible for s117 aftercare and that it continued to fund his Care Home placement. Later that month it advised the Ombudsmen that Mr X had sadly died.

Analysis

24. The Trust and the Council have already accepted the review of Mr X’s needs in August 2022 was not completed properly. Because of this, the organisations did not enforce the recommendation to end Mr X’s s117 aftercare. Mr X remained eligible up to his death. This was an appropriate response to the failings and meant that Mr X did not lose out financially, and his care was not disrupted. It is unlikely an Ombudsmen investigation would find that Mr X suffered an injustice because of the Trust’s and Council’s actions.
25. The Trust and the Council planned to review Mr X’s needs again, which they were entitled to do.
26. The outcome of the review in August 2022 led to paper and email correspondence with Mrs X along with telephone calls to her. Mrs X explained that this was stressful and meant she had to spend time responding. The Trust acknowledged the impact the failings had on Mrs X and provided a clear apology. It also took steps to use the complaint to promote learning and improve practice. As such, it seems unlikely an investigation by the Ombudsmen would lead to findings of an unremedied injustice to Mrs X.
27. Taken together, the responses of the Council and the Trust are proportionate and appropriate. An investigation by the Ombudsmen is unlikely to achieve anything more.

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Decision

28. We will not investigate Mrs X’s complaint because it is unlikely that further investigation would find an unremedied injustice or achieve anything more.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman