Devon County Council (17 018 768)

Category : Adult care services > Safeguarding

Decision : Upheld

Decision date : 23 Jan 2019

The Ombudsman's final decision:

Summary: I consider Devon Partnership NHS Trust (the Trust) took the decision to discharge Miss A from the community mental health team without fault. I consider Devon County Council’s (the Council) section 42 enquiry was flawed. It did not provide the Trust with timescales, and closed the enquiry before resolving any of the concerns.

The complaint

  1. Miss A complains about the actions of Devon County Council (the Council) and Devon Partnership NHS Trust (the Trust).
  2. Miss A is unhappy the Trust discharged her from the community mental health team (CMHT) in May 2017, without considering her mental health. Also, it did not follow correct procedures in doing so. As a result, Miss A says:
    • The lack of Trust support caused her mental health to worsen
    • As a vulnerable adult she is at greater risk of abuse
    • Her psychologist cannot help her with an individual funding request (IFR) for long-term therapy
  3. Miss A says the Council’s safeguarding enquiry (delegated to the Trust) is still outstanding. The Trust did not specify a date by which she or her solicitor had to consent to an independent investigation by a separate Trust. Therefore, the Council closed the enquiry without completing the investigation.
  4. Miss A says the Council stopped her direct payments for support in the community in January 2018. She says this has left her without support from agency workers. Miss A would like the Council to reinstate her direct payments so she can receive support.
  5. Miss A would like the Trust to reinstate her as a patient with the community mental health services. This will enable her to complete the IFR application.

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What I have investigated

  1. I have investigated Miss A’s complaints about the Trust discharging her from the CMHT, and the Council’s safeguarding enquiry. The final section of this statement contains my reasons for not investigating the rest of the complaint.

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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, 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)
  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).
  3. 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.
  4. The Ombudsmen may investigate, and question the merits of, action taken in the exercise of clinical judgement.
  5. 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 have considered the complaint information Miss A provided to me. I have asked the Council and the Trust to comment on the complaint, and provide supporting documentation. I have taken the relevant law and guidance into account. I have also sought advice from an independent psychiatrist.
  2. I have written to Miss A, the Council and the Trust with my draft decision and considered their comments.

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What I found

  1. The National Institute of Clinical Excellence (NICE) produced guidelines in 2011 called “Service user experience in adult mental health: improving the experience of care for people using adult NHS mental health services”. The guidelines provide clinicians with a framework to help discharge patients from mental health services.
  2. The guidelines relevant to Miss A’s case state:
    • “1.7.1 Anticipate that withdrawal and ending of treatments or services and transitions from one service to another, may evoke strong emotions and reactions in people using mental health services. Ensure that:
      1. Such changes, especially discharge, are discussed and planned carefully beforehand with the service user and are structured and phased
      2. The care plan supports effective collaboration with social care and other care providers during endings and transitions, and includes details of how to access services in times of crisis
    • 1.7.2 Agree discharge plans with the service user and include contingency plans in the event of a problem arising after discharge. Ensure that a 24-hour helpline is available to service users so that they can discuss any problems arising after discharge.
    • 1.7.4 Give service users clear information about all possible support options available to them after discharge or transfer of care”

The safeguarding enquiry

  1. Section 42 of the Care Act (the Act) 2014 defines an adult at risk as an adult who:
    • Has needs for care and support (whether or not the local authority is meeting any of those needs) and;
    • Is experiencing, or at risk of, abuse or neglect; and
    • As a result of those needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect;
    • The local authority retains the responsibility for overseeing a safeguarding enquiry and ensuring that any investigation satisfies its duty under section 42 to decide what action (if any) is necessary to help and protect the adult, and to ensure that such action is taken when necessary.
  2. The Act sets out a clear legal framework for how local authorities and other parts of the system should protect adults at risk of abuse or neglect. It must:
    • Lead a multi-agency local adult safeguarding system that seeks to prevent abuse and neglect and stop it quickly when it happens;
    • Make enquiries, or request others to make them, when it thinks an adult with care and support needs may be at risk of abuse or neglect; and
    • Determine what action may be needed.
  3. The ‘Care and Support Statutory Guidance’, which supplements the Care Act, says: “…If the local authority decides that another organisation should make the enquiry, for example a care provider, then the local authority should be clear about timescales, the need to know the outcomes of the enquiry and what action will follow if this is not done””. Also, it says: “The adult should always be involved from the beginning of the enquiry unless there are exceptional circumstances that would increase the risk of abuse”.
  4. A council must make necessary enquiries if it has reason to think a person may be at risk of abuse or neglect and has needs for care and support which mean he or she cannot protect himself or herself. It must also decide whether it or another person or agency should take any action to protect the person from abuse or risk. (section 42, Care Act 2014)
  5. In certain circumstances, the Council allocates section 42 enquiries to the Trust’s safeguarding team to lead. This includes where the person is currently in receipt of services from the Trust, or has received services within eight weeks of the safeguarding referral. If the person has received Trust services more than eight weeks after the date of the referral, the Council and Trust safeguarding teams will decide together who should lead the enquiry.
  6. The Devon Safeguarding Adults Board produced Multi-Agency Policy, Procedures and Guidance in 2014, which details how section 42 enquiries should be conducted in the area. Specifically, they say:
    • 5.1.2 – If consent is withheld and the risk of harm is assessed as low at that time, the Responsible Manager should consider what safeguarding actions can be taken, and what information and advice can be offered to the vulnerable adult to enable them to get help in the future.
    • 7.1.1 The term ‘Responsible Manager’ refers to the manager who has overall responsibility for ensuring the safety from abuse of people who are the subject of a particular safeguarding investigation. They should also ensure that correct procedures are followed.
    • 8.0.1 – People have a right to be informed of, and involved in, safeguarding investigations into risks of abuse or neglect that they face.
  7. The Council produced Devon Safeguarding Adults – Operational Guidance in February 2017. Specifically, they say:
    • 4.2 - The timescale for an initial enquiry to be completed should usually be within 30 working days of the concern being raised. This could be shorter or longer, depending on the nature of the risks and information needed.
    • 6.20 – At the conclusion of the safeguarding enquiry, the Responsible Manager will agree a plan for communicating the findings, action taken, and outcomes achieved with all parties as appropriate.

Key facts

  1. Miss A has dissociative identity disorder, where different ‘states’ of her identity can be in control of her behaviour and thoughts at different times. Miss A suffered trauma from abuse by her family multiple times when she was younger. Since a GP referral in 2008, the Trust provided various types of support to Miss A.
  2. In February 2017, the Trust discharged Miss A from the Crisis Resolution and Home Treatment Team (CRHT) caseload. However, she could still use their out of hours service. A CMHT care-coordinator followed up her mental health, and gave her a copy of her relapse management plan. Miss A accepted this and continued to use the CRHT out of hours service.
  3. In May 2017, the Trust discharged Miss A from the CMHT to her GP. The Trust said she had received 40 sessions of cognitive analytic therapy (a time limited form of psychotherapy), which ended in March. She also had a social care package in place.
  4. On 14 July 2017, Miss A’s GP referred her to the CMHT again. Three days later, the Trust told the GP it would not reconsider Miss A unless there was a significant change in her presentation or symptoms. Miss A made frequent contact with the Trust to say how dissatisfied she was with its decision to discharge her.
  5. On 8 August 2017, Miss A’s GP made another referral to the Trust. The next day the Trust agreed to meet Miss A.
  6. On 13 August 2017, a director of a charity who has provided support for Miss A raised concerns about her welfare to her GP. Two days later, an independent psychotherapist counsellor (the community psychotherapist), who provided phone and text support to Miss A in the community, also raised concerns with her GP.
  7. On 17 August 2017, a psychotherapist at the Trust sent an IFR to Miss A’s GP for long-term psychotherapy, which was not available on the NHS.
  8. On 21 September 2017, the Trust met with Miss A. The Trust decided it would not be providing any further support from a care-coordinator or by therapy.
  9. On 4 October 2017, the Trust offered Miss A an independent review (by another Trust) into her care and treatment, to try and resolve her concerns. The Trust gave Miss A three months to provide consent to the review.
  10. On 13 October 2017, the community psychotherapist raised a safeguarding concern for Miss A to the Council. Three days later, the Council’s safeguarding manager met the safeguarding specialist at the Trust. The safeguarding specialist agreed to contact the community psychotherapist.
  11. The safeguarding specialist spoke to the community therapist on 18 October 2017. The therapist said she raised a concern as Miss A bought a train ticket to see family who had previously abused her. The same day, the Clinical Commissioning Group rejected Miss A’s request for long-term therapy.
  12. On 25 October 2017, the Trust’s managing partner for safeguarding and the Council’s principal social worker agreed Miss A’s concerns met the criteria for a section 42 enquiry. A safeguarding specialist at the Trust agreed to investigate. The Council confirmed this in writing to Miss A on 30 October. The Trust again offered Miss A the independent review to resolve her safeguarding concerns.
  13. In December 2017, Miss A wrote to the Council to say that she hadn’t had any contact from the Trust. The Council said it had passed her letter to the Trust and asked them to urgently respond.
  14. In January 2018, Miss A made many calls to Council for an update.
  15. On 4 January 2018, Miss A’s solicitor told the Trust: “I am certain my client does wish to take up the independent assessment”. He agreed to confirm this and respond by 8 January.
  16. On 12 January 2018, the solicitor provided Miss A’s consent for the independent assessment. This was after the Trust’s deadline.
  17. On 30 January, the Council advised Miss A to contact the Trust for an update on the safeguarding enquiry.
  18. In February 2018, the Trust told the Council it had closed the safeguarding enquiry. Specifically, it said:
    • The investigation should be fair and done by a different Trust. This was because of previous complaints by Miss A.
    • It did not receive a response from Miss A’s solicitor to gain their consent for an independent Trust to carry out the section 42 enquiry.
    • Miss A rejected the offer of an independent investigation by another Trust.
    • It had not addressed Miss A’s safeguarding concerns. However, this was because of the lack of engagement from Miss A and her solicitor.

Complaint responses

  1. Miss A made many complaints to the Trust going back to mid-2016. I have highlighted only the responses relevant to my investigation, from both the Trust and the Council.
  2. In August 2017, the Trust said its decision to discharge Miss A in May 2017 was correct. Contact with the Trust was causing her distress, and it said she would benefit from a break from their service. It also asked her to stop contacting the Trust.
  3. In October 2017, the Trust wrote to Miss A’s solicitor. It said:
    • Since 2008 Miss A received help from a care coordinators, psychologists, psychological therapists and social care packages. Contact with the Trust leads to distress.
    • Clinicians met many times to discuss the best treatment plan for Miss A. This included assessing her risk as part of her discharge plan. The Trust regularly assessed Miss A between February and May 2017 before discharging her.
    • It could not provide a service to Miss A unless her mental health presentation significantly changed.
    • It updated Miss A’s care plan in May 2017 and had a relapse management plan from February 2017. She received seven hours support per week from agency workers, and visited a day centre once a week.
  4. In February 2018, the Council said:
    • Its actions were in line with the Care Act 2014, and an independent review by a separate Trust would be the best way to carry out the section 42 enquiry.
    • The Trust had overall responsibility for coordinating safeguarding processes and to manage the enquiry.
    • It did not identify any issues with communication with Miss A. However, communicating through her solicitor caused delays in the Trust’s investigation.
    • It accepted it did not chase the Trust after it delegated the section 42 enquiry to them.

My analysis

The Trust’s decision to discharge Miss A in May 2017

  1. Miss A and the Trust had different views on how helpful the Trust’s support was. The Trust said the lack of improvement in Miss A’s mental health despite providing significant support was the main reason it discharged her from their services. The Trust also said Miss A suffered distress from her communications with them. Miss A said she still needed support as she was a vulnerable adult, and there were significant risks.
  2. I do not consider the Trust’s decision to discharge Miss A in May 2017 was fault. I will explain why.
  3. The Trust’s decision to discharge Miss A was a clinical decision, and I consider it discharged Miss A in line with the relevant NICE guidelines.
  4. The Trust held meetings in February and May 2017 with the clinicians involved in her care. They discussed the benefits and risks of discharging Miss A.
  5. The Trust developed a discharge plan for Miss A. The discharge plan included references to social care support she was receiving from the Council, and support choices for Miss A after she had been discharged. The discharge plan showed the Trust considered the potential risk of further abuse. The Trust offered Miss A a device which would allow her to seek support after dissociation. She would trigger the device, which would alert the Trust that she required support. However, Miss A refused this.
  6. I have seen evidence from the Trust’s records that it tried to agree a discharge plan with Miss A. While those attempts were unsuccessful, she had a detailed crisis and contingency plan to recognise when her mental health was getting worse and how to manage her various personalities.
  7. The discharge and relapse management plans does not contain any information for Miss A on how to access services in a time of crisis. I cannot say if the Trust provided those to Miss A. Also, the Trust should have updated the discharge plan in May 2017 to remove references to parts of the service she could no longer access. However, I have seen evidence that Miss A used other services in times of crisis for support.
  8. When Miss A’s GP referred her to the Trust, I consider it was reasonable the Trust did not offer her an assessment. Miss A’s clinical presentation had not changed, and she had been discharged and relapse management plans were in place for support.
  9. Overall, I accept the reasons the Trust discharged Miss A from the community mental health team. I consider the Trust took suitable steps to discharge her in line with the applicable NICE guidelines. While the Trust should have detailed how Miss A should access services in a time of crises, I have seen that she did seek support from different Trust services at those times. Therefore, the lack of detail about accessing support services did not cause Miss A any injustice as she was still able to get support.

The safeguarding enquiry

  1. It is not my role to decide if Miss A’s allegations had any substance. My role is to decide if, following the allegation, the Council acted properly.
  2. Councils should ensure safeguarding investigations are independent. I do not consider the Council’s decision to delegate the responsibility of the safeguarding enquiry to the Trust was fault. I accept the Trust would be best placed to review her care and treatment. While the Trust were the alleged perpetrator of neglect in Miss A’s case, the team who would be considering the allegations would not be clinicians involved in her care. I do not consider this was fault.
  3. I understand why the Trust asked another Trust to independently review Miss A’s care and treatment. The Trust did not feel it was the right organisation to review its care and treatment. I consider the Trust’s decision to repeat the offer of an independent investigation (when the safeguarding enquiry began) to Miss A was a useful way to try to resolve the enquiry.
  4. The Trust received Miss A’s consent to the independent review after the deadline it set, and did not extend the deadline. This was because the Ombudsmen were going to investigate similar issues, so an independent review would double work. I consider the Trust’s decision to not accept Miss A’s consent was fault. I understand Miss A was sending lots of correspondence to the Trust, and her consent was late. However, an Ombudsmen investigation could not resolve Miss A’s safeguarding concerns. That was a significant reason the Trust offered Miss A the independent review again in October 2017.
  5. Both organisations accept they did not address Miss A’s safeguarding concerns. The Trust and the Council decided the independent review would have resolved all of Miss A’s safeguarding concerns, without considering other ways to do this. The Council was ultimately at fault, as it was responsible for managing the safeguarding enquiry. The Council did not take reasonable steps to involve Miss A before closing the enquiry. This was fault. The Council should have explored other ways to complete the safeguarding enquiry with Miss A. I consider the Council missed the opportunity to resolve the safeguarding concerns. This has caused avoidable distress to Miss A.
  6. The Trust should have returned to the Council when it decided not to accept Miss A’s consent. However, the Council did not set out clear timescales with the Trust at the start of the safeguarding enquiry. The Council accepted this. It has since agreed to request progress reports from the Trust for future safeguarding enquiries. I am satisfied the Council’s actions will stop the fault happening again.
  7. The Council told me it was in close verbal contact with the Trust during the safeguarding enquiry. However, I have not seen any documented evidence of those conversations. This was fault, as it was not in line with the safeguarding policy at that time. This caused unnecessary delays and distress to Miss A.

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Recommendations

  1. Within four weeks, the Council should apologise to Miss A for the avoidable distress caused by the flawed safeguarding enquiry.
  2. Within eight weeks, the Council should:
    • Review the safeguarding decision to see if there are any other ways to address Miss A’s safeguarding concerns.
    • Ensure the relevant staff are aware of the safeguarding policy and procedures to ensure the fault identified in this case does not happen to others.
  3. The Council should confirm to the Ombudsmen when it has completed this recommendation.

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Final decision

  1. I do not consider the Trust acted with fault when it discharged Miss A from the community mental health team in May 2017.
  2. The Council’s safeguarding enquiry was flawed. It did not set out the relevant timescales to the Trust to complete the enquiry. Also, when the Trust could not resolve Miss A’s safeguarding concerns, the Council wrongly closed the case without considering other ways to resolve Miss A’s safeguarding concerns.

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Parts of the complaint that I did not investigate

  1. Miss A is unhappy the Council amended her direct payments for support in the community in January 2018. She says this has left her with reduced support from agency workers. Miss A would like the Council to increase her direct payments so she can receive increased support.
  2. The Council has not yet dealt with the complaint through its own complaints process. As this aspect of the complaint is therefore premature, I will not investigate it further.

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Investigator's decision on behalf of the Ombudsman

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