Summary: We will not investigate Miss X’s complaint about the care and treatment provided by the Council, the Trust and the Practice. This is because further investigation by the Ombudsmen is unlikely to add to the organisations’ own investigations. Further, we cannot achieve many of the outcomes Miss X is seeking. It would be reasonable for her to use an alternative legal remedy to seek financial redress for data breaches.

The complaint

1. Miss X complains about the care provided to her by Derby Road Practice (the Practice), Suffolk County Council (the Council) and Norfolk and Suffolk NHS Foundation Trust (the Trust). Miss X says she did not receive adequate mental health support in 2020 – 2021, when she was in a mental health crisis.

2. Miss X complains the Practice
• inappropriately shared her medical history with the Council, resulting in a data breach
• ignored her request for a particular doctor to have no involvement in her care. The doctor phoned Miss X, which caused her distress.
• provided inaccurate and inappropriate information to the Trust’s mental health team, which contributed to the decision to discharge her; and
• cancelled appointments without explanation
   
3. She complains the Council
• inappropriately requested medical information from the Practice as part of a financial assessment and did not inform her it would be doing this
• gave inaccurate information to the Practice, which contributed to her being disbelieved.
• ignored information from Miss X, her carer, her family and advocate about her mental health crisis during the assessment process.
• gave inappropriate information to the Trust’s mental health team, which directly led to her being discharged
• has failed to explain why the social worker reached incorrect and unevidenced views about her
• has failed to take action to rectify the Trust’s incorrect records based on the social worker’s statements.

4. She further complains the Trust
• failed to provide mental health support and treatment for insomnia, discharging her instead
  inappropriately cancelled appointments
• sought advice from the Council, against her wishes and did not tell her it was doing so
• accepting misleading information from the Council, who had a conflict of interest
• holds inaccurate information and has not taken sufficient action to rectify this

5. As a result, Miss X says that she did not receive the mental health support she needed in 2020 and 2021. She says she has suffered ill treatment from staff, including verbal abuse and bullying behaviour, which caused her significant distress. Miss X feels unable to seek further mental health support while the ‘false and defamatory’ records remain.

6. Miss X is seeking further explanation about the way she has been treated, apologies for this and to be treated better in future. She is seeking financial redress for distress and data breaches to pay for the medical treatment she did not receive and therapy for the abuse received. Miss X also wants the inaccurate parts of her records deleted.

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The Ombudsmen’s role and powers

7. The Ombudsmen consider 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).
8. We provide a free service, but must use public money carefully. We may decide not to start an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely we could add to any previous investigation by the organisations, or
• we cannot achieve the outcome someone wants, or
• there is another organisation better placed to consider this complaint

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

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How I considered this complaint

9. I considered information provided by Miss X and discussed the complaint with her. I also considered the Ombudsman’s Assessment Code and the organisations' complaint responses. I shared a copy of my draft decision with Miss X and considered the comments she made.

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What I found

What happened

10. Miss X has a diagnosis of chronic fatigue syndrome which significantly impacts on her daily life. She has been part of a long running disagreement with the Council over their financial assessment for her disability related expenditure.
11. In August 2020, as part of the financial assessment, the Council requested medical information from the Practice. The Practice provided Miss X’s medical history.
12. Around this time, Miss X experienced a decline in her mental health. Miss X says this was due to increased stress caused by the Council’s financial assessment which severely impacted on her mental and physical health. Miss X was also struggling with insomnia. The Practice referred Miss X to the Trust’s mental health team.
13. Miss X says a doctor from the Practice, Dr Y, phoned her. Miss X was previously unhappy with Dr Y’s actions in 2017 and did not wish to have him involved in her care. Miss X found Dr Y’s phone call distressing.
14. In October 2020, following its assessment of Miss X, the mental health team contacted the Council with an update. The mental health team said Miss X did not want any information sharing with the Council. However she agreed to share the following “[Miss X] does not have a severe and enduring mental illness and does not have needs that warrant the need for secondary mental health services. [Miss X] does feel under a lot of stress as she feels under pressure from Adult Social Care. She presents as very anxious, worried and at times angry. She will not be receiving support from the [mental health team]”. Miss X says she did not agree to this statement.
15. Miss X contacted the crisis team on several occasions. Following this, the Trust arranged a multidisciplinary team meeting. The meeting agreed to offer Miss X an outpatient appointment with a psychiatrist.
16. In December 2020, the mental health team cancelled Miss X’s scheduled appointment with a psychiatrist as the team felt she ‘no longer required the input of secondary mental health services’.
17. In May 2021, the mental health team had a telephone consultation with Miss X. The consultant wrote to the Practice with advice on prescription medication to help resolve Miss X’s insomnia.
18. The Council has conducted a detailed investigation into Miss X’s complaint, including meeting with her to discuss her concerns. In November 2023, the Council completed its consideration of Miss X’s complaint.

Analysis

The Practice

Phone call from Dr Y

19. Miss X complains that Dr Y phoned her in 2020, when she no longer wanted him involved in her care. Miss X found this distressing.
20. The Practice considered this as part of its complaint handling in 2021. The Practice has no record of this phone call. However, it apologised for the breakdown of relationship between Miss X and Dr Y. Dr Y was asked to reflect on this as part of his appraisal.
21. The Practice has apologised to Miss X and took steps to address it with Dr Y. I note Miss X moved to a new GP practice some time ago and Dr Y has since retired. I am of the view that the Practice has taken reasonable steps to put things right. Even if there were records of the call, further investigation by us is unlikely to achieve more.

Cancelled appointments

22. Miss X complains that the Practice cancelled appointments by text, without explanation and made it difficult for her to rebook. Miss X found this distressing.
23. The Practice has no record of any cancelled appointments. While I have no reason to doubt Miss X’s recollection, without records to examine it would be difficult for us to be able to reach a finding on this point. Further, while I acknowledge Miss X found this upsetting, there is not sufficient injustice on this point to warrant an investigation.

Data sharing with the Council

24. Miss X complains that the Practice provided her medical history to the Council as part of the financial assessment process. Miss X says this was a data breach.
25. The Information Commissioner’s Office (the Information Commissioner) has considered Miss X’s concerns. The Information Commissioner found that the Practice was likely responding lawfully to an information request from the Council. However, the Information Commissioner found that the Practice had shared too much data which was not relevant to the information request. The Information Commissioner said this was a data breach.
26. The Practice has apologised to Miss X and made systemic improvements to limit the amount of information contained in letters to third parties. I consider these to be reasonable remedies to the injustice caused and we are unlikely to recommend anything further.
27. Miss X is also seeking financial redress for the data breach and distress. The Information Commissioner cannot award compensation, even where it has found that an organisation has broken data law. The Information Commissioner says that a person has the right to claim compensation from an organisation if [they] have suffered damage as a result of it breaking data protection law. This can include distress.
28. The Practice’s final complaint response was issued in August 2021. The Information Commissioner made its findings in November 2021. From what I have seen, the Practice has not had the opportunity to consider Miss X’s request for compensation. It would be most appropriate for Miss X to put her request to the Practice in the first instance.

Inaccurate information provided to the Trust

29. Miss X complains that the Practice, and Dr Y in particular, passed inaccurate information about her to the mental health team. Miss X believes this influenced the mental health team’s decision to discharge her.
30. The Practice’s complaint response says it has no record of Dr Y telling the mental health team that Miss X can be ‘hysterical’ or that she would not speak to him because he refused to prescribe her medication. Miss X’s concerns have arisen from the mental health team’s records of its conversation with Dr Y.
31. It would be difficult to confirm exactly what Dr Y said during this conversation. It seems likely we would end up with conflicting accounts of the contents of this conversation when comparing the Practice and Trust records. While we could make a finding based on the balance of probabilities, I do not consider this would move matters forward. This is because Miss X is seeking to have the information deleted from her records.
32. While Miss X considers this information to factually inaccurate, it appears to primarily be Dr Y expressing his professional opinion. As such, this is not something that would be removed from records. The Trust has offered Miss X the opportunity to submit a Rectification Notice which has been attached to her records, outlining what parts of her medical records she considers to be incorrect. This is an appropriate remedy. The Ombudsmen cannot achieve the outcome sought by Miss X and therefore would not consider this matter further.
33. We normally expect someone to contact the Information Commissioner if they have a complaint about data protection. The Ombudsmen cannot determine whether an organisation has breached data protection law. Only the Information Commissioner can do this. Given the complexities of Miss X’s complaints, I consider the Information Commissioner to be the most appropriate organisation to consider her concerns about data handling.

The Council

Data handling by the Council

34. Miss X is unhappy with the way the Council has handled her personal data. She complains about the Council requesting medical information from the Practice. She also says the Council provided inaccurate information to the Trust which influenced its decision to discharge her from mental health services.
35. Council requested medical information as part of the financial assessment. This appears to be usual practice for medical information to be obtained as part of considering disability related expenditures. The ICO has noted that the Practice was likely responding to a lawful data request. The Council has recognised that Miss X should have been notified of this.
36. Miss X complains that the Council has not taken sufficient steps to ensure the Trust rectifies its incorrect records, based on the social worker’s statements. The Trust is the data controller for its own records. The Council cannot influence how the Trust chooses to manage the data it holds.
37. As explained above, I consider the Information Commissioner to be the most appropriate organisation to look at how the Council handled Miss X’s data.
38. Further, Miss X wants the Council to delete the disputed data. This is not something the Ombudsmen can achieve for her.

Influenced Trust’s decision to discharge her

39. Miss X complains that information given by the Council and the Practice led to the Trust’s decision to discharge her from mental health services.
40. I acknowledge Miss X’s strength of feeling on this. However, the Trust has repeatedly said it discharged Miss X as it did not consider she had a mental health condition requiring its input. Further, the Trust’s complaint response clearly states that its decision was made on its consideration of Miss X’s needs at the time, and not the social worker’s views. I have reviewed the Trust’s mental health records and have not seen any evidence that the Council’s actions caused the Trust to cancel Miss X’s appointment. As such, it would be unlikely that we would be able to reach a finding that information from the Council or Practice directly led to Miss X being discharged by the mental health service.

Ignored information about Miss X’s health

41. Miss X complains the Council ignored information about her health provided during the financial assessment by herself, her family, her carer and her advocate.
42. The Council’s investigation report has recognised that while the Council was aware Miss X was finding the process stressful and had tried to put support in place, including reasonable adjustments in relation to Miss X’s disability. The Council’s report found that adjustments and communication were often not effective. This impact of this was part of the Council’s overall remedy which included apologising to Miss X and offering £1500. As the Council has already acknowledged fault and offered a suitable remedy, it is unlikely further investigation by the Ombudsmen would achieve more.

Explanations about how Miss X was treated

43. Miss X complains that the Council’s final response has not explained why the social worker treated her badly or how the social worker reached her inaccurate, unevidenced views about Miss X.
44. Council response has accepted that some of the social worker’s records would sound “harsh” and why Miss X found it upsetting to read. The Council’s report says “Whilst factual inaccuracies can be corrected, other information reflecting social work opinion is not available for deletion, however your comments can be set alongside to give balance to the record”. While Miss X considers the information to be factually inaccurate, any investigation by us is likely to find that the disputed information is the social worker expressing her professional opinion.
45. The Council has offered Miss X the opportunity for a Notification of Rectification to be added to its records. Miss X has submitted a substantial document, outlining her views.
46. Miss X is not satisfied with the Council’s remedy and wishes for more specific details about why the social worker reached the views she did.
47. As a publicly funded body we must be careful how we use our resources. We consider complaints in a proportionate matter, focusing on general themes and issues, rather than providing a response to every individual issue raised in a complaint.
48. We cannot always respond to complaints in the level of detail people might want. We do not try to answer every single question a complainant may have about what the organisation did.
49. Further, it is not a good use of public resources to investigate complaints about complaint handling if we are unable to deal with the issues of complaint themselves (the substantive issues).
50. I am satisfied the Council has addressed this complaint in a reasonable and proportionate manner. It has identified where things went wrong and put steps in place to put things right. While Miss X wishes for more detail about the social worker’s actions, I do not consider it would be proportionate to do to look into these matters in any more detail. Further, it is unlikely we would be able to find an explanation which would resolve this point to Miss X’s satisfaction. We also would not be able to make a finding about whether Miss X had been subject to what she has described as abusive behaviour.

The Trust

Cancelled appointments and decision to discharge

51. Miss X complains that the mental health trust failed to provide mental health support or treatment for her insomnia, anxiety and depression while she was in a mental health crisis in 2020 and 2021.
52. The Trust’s complaint response to Miss X said the psychiatrist appointment for December 2020 “was cancelled as the team felt [Miss X] no longer required the input of secondary mental health services.”
53. The Trust further explained she was discharged as it did not consider Miss X had a mental health condition which fell under the remit of the mental health team. As explained above, the Trust has stated its decision was based on Miss X’s needs at the time, and not because of information from other organisations.
54. The psychiatrist sent advice to the Practice about medication for insomnia, which also can improve anxiety. While this was not the medication Miss X was seeking, it appears to have been what the psychiatrist considered most appropriate at the time. The Trust has apologised for any confusion caused by not copying Miss X into this information. The Trust explained it has changed its practises to ensure all patients are copied into correspondence with their GPs.
55. As the Trust did not consider Miss X had a mental health condition which met the threshold for treatment by its mental health team, we are unlikely to find fault with the Trust’s actions.

Accuracy of Trust records

56. Miss X is unhappy with the contents of the Trust records, particularly recorded information from the Practice and the Council. Miss X says this is preventing her seeking further mental health support. Miss X is also unhappy that the Trust sought information from the Council without telling her.
57. It is common practice and usually appropriate for health and social care organisations involved in a person’s care to share some information. It is increasingly expected that health and social care organisations will work together to provide a more joined up service for individuals. I have seen evidence that the Trust respected Miss X’s request not to share information with the Council, aside from a short statement which the Trust believed Miss X had agreed to. I note that Miss X says she did not agree for the short statement to be shared with the Council. This conflicts with the Trust’s records and we are unlikely to be able to determine which account is correct.
58. The Trust’s complaint response says “it is clear you have a strong opinion to the accuracy of the information recorded in your health records. You have the right to request rectification of your health records but equally we, the Trust, have a similar obligation to maintain comprehensive records of your care. We must maintain out records that contain professional opinion of our clinicians. However, we must balance that with your opinion…. As it appears from the inaccuracies you have raised that these are issues over a matter of opinions, or how something was recorded by clinical staff, we cannot delete these entities.” The Trust also offered Miss X the opportunity to add a Rectification Notice to her mental health records.
59. From what I have seen, it is unlikely that we would consider the disputed information to be a matter of factual inaccuracy. It appears to be Miss X strongly disagreeing with professional opinions and how these have been recorded. Such records are rarely able to be deleted and it is not an outcome that the Ombudsmen could achieve. Again, for the reasons explained above, I consider the Information Commissioner to be the most appropriate organisation to consider Miss X’s concerns about data management.

Financial redress

60. As mentioned above, we cannot achieve some of the outcomes sought by Miss X, including deletion of records. Miss X is also seeking financial redress in relation to the handling of her data. Miss X notes that the Information Commissioner cannot provide financial remedies even when data breaches have been identified.
61. Miss X would like the Ombudsmen to recommend financial remedies in relation to data handling. However, as explained above, I consider the Information Commissioner is the appropriate organisation to take a view on how Miss X’s data has been handled. Where the Information Commissioner has taken a view, the Ombudsmen would not consider the matter further.
62. I note Miss X’s comments that she has a remedy gap. The Information Commissioner’s guidance states “The GDPR gives you a right to claim compensation from an organisation if you have suffered damage as a result of it breaking data protection law. This includes both ‘material damage’ (.e.g. you have lost money) or ‘non-material damage’ (e.g. you have suffered distress). The ICO cannot award compensation, even when we give our opinion that an organisation has broken data protection law. You do not have to make a court claim to obtain compensation – the organisation may simply agree to pay it to you. However, if it does not agree to pay, your next step would be to make a claim in court. The court would decide your case. If it agreed with you, it would decide whether or not the organisation would have to pay you compensation.”
63. Therefore, in the first instance, Miss X would need ask the Information Commissioner to consider whether there has been a data breach. If a data reach was found, Miss X would need to ask the organisation to consider her request for financial redress. Following that, it is open to Miss X to consider pursuing the matter through the courts.
64. Miss X also says she has been subject to abusive behaviour and the records amount to defamation of character. Miss X would like financial redress for this.
65. Deciding about whether an organisation has been abusive or defamatory would usually involve looking rigorously, and in a structured way at evidence as only the court can to make its findings. In addition, only a court can decide if an organisation has been defamatory and so should pay damages. We cannot recommend actions or payments that ‘punish’ the organisation.
66. We cannot decide whether an organisation has been defamatory and have no powers to enforce an award of damages. Rather, Miss X should seek a remedy in the courts.
67. Any investigation by the Ombudsmen is unlikely to achieve the level of financial payment that Miss X is seeking to fund private health care and therapy and it would be more appropriate for her to seek such a payment through the courts. Given there is an alternative legal remedy open to Miss X, and that it would be reasonable for her to use it, the Ombudsmen will not investigate her complaint about the same matters.
68. Finally, I note that Council has offered Miss X £1500. I recognise Miss X considers this is inadequate. However, it is unlikely the Ombudsmen would achieve a larger sum for Miss X.

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Final decision

69. We will not investigate this complaint. This is because further investigation by the Ombudsmen is unlikely to achieve any more than the Council has already offered. We are also unable to achieve most of the outcomes sought by Miss X. We are unlikely to find fault in the Trust’s decision to discharge Miss X. Finally, the Information Commissioner and the courts are the most appropriate routes to consider Miss X’s concerns about the handling of her data.

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Investigator's decision on behalf of the Ombudsman