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Essex Partnership University Foundation Trust (19 015 337a)

Category : Health > Hospital acute services

Decision : Closed after initial enquiries

Decision date : 06 Feb 2020

The Ombudsman's final decision:

Summary: The Ombudsmen will not investigate Mrs X’s complaint. The Ombudsmen consider Mrs X’s complaint about events at Essex Partnership University Foundation Trust in 2017 is late, and we could not say the Trust should have detained Mr Y in 2017 and 2019. Also, the Ombudsmen do not consider there is a significant injustice to Mrs X to warrant an investigation of Southend Clinical Commissioning Group’s continuing healthcare assessment of Mr Y.

The complaint

  1. Mrs X says, in 2017 and 2019, Essex Partnership University Trust (the Trust) should have detained her grandfather, Mr Y, under section 3 of the Mental Health Act to provide him with section 117 aftercare. The aftercare would have prevented Mr Y from attempting suicide. Also, Mrs X would not have had to pay for Mr Y’s care.
  2. Mrs X says Southend Clinical Commissioning Group (the CCG) did not follow the National Framework when it decided Mr Y was not eligible for continuing healthcare (CHC). Mrs X says Southend-on-Sea Borough Council (the Council) did not provide the right information to the CCG about Mr Y’s needs during the assessment. This has caused her time and trouble and impacted her health.

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The Ombudsmen’s role and powers

  1. 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).)
  2. 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;
    • the injustice is not significant enough to justify their involvement; or
    • they cannot achieve the outcome someone wants.
  3. 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 considered information Mrs X provided in writing and by telephone. This includes documents by the organisations complained about. I have provided Mrs X with a draft version of this statement and considered her comments about it.

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What I found

The Trust’s decision to not section Mr Y under section 3

  1. Under the Mental Health Act 1983 (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. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
  2. Section 3 of the MHA is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. 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.
  3. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 that came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no other less restrictive alternative.
  4. Paragraph 13.49 of the Mental Health Act 1983: Code of Practice (the Code) says: “...It is important to note that a person cannot be detained under the Act at the same time as being subject to a DoLS authorisation or a Court of Protection Order.”
  5. In June 2017, the Trust detained Mr Y under section 2 of the MHA and diagnosed him with dementia. The Trust discharged Mr Y home with support from the Council and Mrs X.
  6. Mr Y attempted suicide in July 2017 and the Trust readmitted him. The Trust later discharged Mr Y home with support from the Council and Mrs X.
  7. In January 2019 Mr Y attempted suicide again and the Trust readmitted him. Mrs X told me during the admission the Trust placed Mr Y under a DoLS. The Trust discharged Mr Y to a nursing home in March 2019.
  8. Mrs X complained to the Trust in July 2019. In response, the Trust said it did not section Mr Y under section 3 in June 2017 because he accepted care and treatment. Also, in July 2017 and January 2019, the Trust admitted Mr Y as an informal patient.
  9. I asked Mrs X why she did not complain sooner about events in 2017. She told me she did not complain sooner as she did not understand what the sections meant in 2017. I do not doubt Mrs X did not fully understand the different sections. However, Mrs X did not need to understand the sections to make a complaint in 2017. When Mr Y attempted suicide in July 2017, Mrs X would have been unhappy the Trust did not do enough to stop that from happening then. I consider it would have been reasonable for Mrs X to make a complaint within 12 months from that time.
  10. Mrs X also told me she was grieving the death of a relative and had recently given birth. I understand Mrs X’s circumstances would have made it more difficult to complain to the Trust. However, I still consider Mrs X could have complained sooner than two years after the July 2017 admission.
  11. I am unlikely to find fault with the Trust for not detaining Mr Y under section 3 in 2019. Because the Trust placed Mr Y under a DoLS, it could not have also detained him under section 3. That would not have been in line with the guidance set out in the Code.
  12. Also, I do not consider an investigation would achieve the outcome Mrs X wants. Even if Mr Y had been detained under section 3 and had been eligible for section 117 aftercare, I could not what aftercare the CCG and Council would have agreed to provide Mr Y. This would have been down to the professional judgement of the CCG and Council, and further investigation is unlikely to resolve this.

The assessment for CHC funding

  1. The Department of Health’s National Framework for NHS Continuing Healthcare and NHS‑funded Nursing Care (November 2012 (Revised)) (the National Framework) is the key guidance about CHC.
  2. CHC is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances. NHS-funded nursing care (FNC) is the funding provided by the NHS to residential nursing homes that also provide care by registered nurses.
  3. For most people who may be eligible for CHC, the first step is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment. A nurse will then complete a Decision Support Tool (DST) form. The DST is a record of the relevant evidence and decision-making for the assessment. If, after a full multidisciplinary assessment a person disagrees with the CCG’s decision that they are not eligible for CHC or FNC, they can ask the CCG to review its decision.
  4. Before the Trust discharged Mr Y in March 2019, the CCG completed the CHC Checklist which showed Mr Y may be eligible for CHC. A month later the CCG chaired a meeting to complete the DST. Mrs X, the Nursing Home Manager and a Social Worker were present at the meeting. Because the Social Worker had to leave the meeting early, the CCG completed the DST with the Social Worker at a second meeting. The CCG found Mr Y was eligible for FNC, but not CHC.
  5. Mrs X appealed the result of the DST to the CCG in July 2019.
  6. Mrs X told me the CCG has since agreed to provide Mr Y with CHC and backdate it to April 2019. Based on this, I do not consider there is any injustice to Mr Y.
  7. Mrs X said the Social Worker did not provide suitable information about Mr Y to the April 2019 DST to fully understand his needs. Only the CCG could decide if Mr Y was eligible for CHC. I do not consider I could say the CCG’s decision in April would have been different, even if the Social Worker had provided more information about Mr Y.
  8. Mrs X has suffered time and trouble appealing the CCG’s decision. However, I do not consider this has caused a significant injustice to warrant an investigation.

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Final decision

  1. I consider the Ombudsmen should not investigate this complaint.

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Investigator's decision on behalf of the Ombudsman

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