The Ombudsman's final decision:
Summary: The complainant, Mrs B, said a funding dispute between the Council and three clinical commissioning groups delayed her daughter’s, Miss C’s, move from an independent hospital to a more suitable placement although she was medically fit for discharge.
Mrs B was unhappy with the way NHS England arbitrated the dispute and said the events had an adverse impact of both her and Miss C. The Ombudsmen found no fault by the Council when it decided to accept responsibility for Miss C’s aftercare needs. The clinical commissioning groups delayed in agreeing responsibility which meant Miss C remained in an inappropriate hospital placement, which did not meet her needs, for too long. The clinical commissioning groups have agreed to the Ombudsmen’s recommendations and will apologise to Miss C and Mrs B, pay a financial remedy and review the National Health Service’s guidance relating to establishing the responsible commissioner.
- The complainant, who I shall refer to as Mrs B, complains about a funding dispute between Wokingham Borough Council (the Council), Haringey Clinical Commissioning Group (Haringey CCG), Berkshire West Clinical Commissioning Group (Berkshire West CCG) and Northern, Eastern and Western Devon Clinical Commissioning Group (New Devon CCG) which led to delays in her adult daughter, Miss C, moving to a suitable placement. Mrs B was unhappy with the way NHS England arbitrated the dispute. Mrs B also says New Devon CCG did not provide Miss C with adequate mental health support. Mrs B feels the situation adversely impacted on her daughter’s wellbeing and caused both her and Miss C avoidable distress.
The Ombudsmen’s role and powers
- 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, and Health Service Commissioners Act 1993, section 18ZA)
- 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)).
- 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.
- 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)
How I considered this complaint
- I have considered information from Mrs B provided in writing and by telephone. I have also considered information and documents provided by the organisations named in this complaint. All parties have been given an opportunity to respond to a draft of this decision.
What I found
- Under the terms of the Mental Health Act 1983 (MHA), a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. Prior to doing so two qualified medical practitioners must assess the patient and agree that the patient is suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health or the safety of another. Detention is not considered when less restrictive alternatives are available.
- Section 3 of the MHA empowers medical practitioners to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months. After that, detention can be renewed for further periods of one year at a time.
- Before the person is discharged, an assessment of needs should take place to establish if they have any social care and health needs that should be met to prevent readmission to hospital. 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. The law says the local council and clinical commissioning group are jointly responsible for arranging aftercare services.
- The duty to provide after-care services continues if the patient needs such services to prevent their readmission to hospital and to support them in regaining or enhancing their skills, or learning new skills, to cope with life outside of hospital.
- The duty on local authorities to commission or provide mental health after-care rests with the local authority for the area in which the person concerned was ordinarily resident immediately before they were detained under the terms of the MHA 1983, even if the person becomes ordinarily resident in another area after leaving hospital.
- There is no definition of “ordinary residence” in legislation. Therefore, the term should be given its ordinary and natural meaning subject to any interpretation by the courts. (Ordinary Residence: Guidance on the identification of the ordinary residence of people in need of community care services, England (October 2013))
- The Care and Support Statutory Guidance (which supports the Care Act 2014) states, “Although any change in the patient’s ordinary residence after discharge will affect the local authority responsible for their social care services, it will not affect the local authority responsible for commissioning the patient’s section 117 after-care. Under section 117 of the MHA 1983, as amended by the Care Act 2014, if a person is ordinarily resident in local authority area (A) immediately before detention under the 1983 Act, and moves on discharge to local authority area (B) and moves again to local authority area (C), local authority (A) will remain responsible for providing or commissioning their after-care. However, if the patient, having become ordinarily resident after discharge in local authority area (B) or (C), is subsequently detained in hospital for treatment again, the local authority in whose area the person was ordinarily resident immediately before their subsequent admission (local authority (B) or (C)) will be responsible for their after-care when they are discharged from hospital.”
- NHS England produced “Who Pays? Determining Responsibility for payments to providers” (2013) guidance for identifying which CCG is responsible for commissioning and paying for care. The general rules say:
- Where a patient is registered on the list of NHS patients of a GP practice, the responsible commissioner will be the CCG of which GP practice is a member;
- Where a patient is not registered with a GP practice, the responsible commissioner will be the CCG in whose geographic area the patient is ‘usually resident’.
- where a patient who is resident in CCG A’s area is discharged to CCG B’s area, CCG A will retain responsibility to pay for the patient’s aftercare along with the relevant local authority.
- CCG A will continue to be responsible for the patient’s section 117 aftercare even where the patient is subsequently readmitted or recalled to hospital (except where the admission is into specialised commissioned services).
- CCG A would remain responsible for the NHS contribution to their subsequent aftercare under section 117 MHA, even where the person changes their GP practice (and associated CCG).
- The safety and well-being of patients is paramount. The underlying principle is that there should be no gaps in responsibility - no treatment should be refused or delayed due to uncertainty or ambiguity as to which CCG is responsible for funding an individual’s healthcare provision.
- Since it is not possible to cover every eventuality within this guidance, the NHS is expected to act in the best interests of the patient at all times and work together in the spirit of partnership.
- NHS England expects that all disputes will be resolved locally, ideally at CCG level, with reference to the guidance in this document and coming to pragmatic solutions where responsibility is not immediately obvious or where it may be shared. In cases that cannot be resolved at CCG level, Area Teams of NHS England should be consulted and should arbitrate where necessary.”
- Miss C is autistic and the Council has provided social care support to her since she was of school age. When Miss C reached adult age in 2014, she transitioned to adult social care and then moved to Placement X located in Devon. Agency Y provided social care support at Placement X. The Council fully funded Miss C’s social care needs at the placement and had a contractual agreement in place with Agency Y.
- At the start of Miss C’s placement, she did not receive any mental health services only social care support from Agency Y. This was because Miss C did not have mental health needs when she first moved to Placement X.
- Agency Y contacted the Council in August 2014 shortly after Miss C moved to Placement X. Agency Y said Miss C needed extra one-to-one support because she was exhibiting what appeared to be mental health issues. The Council agreed to provide extra support for a fixed period and asked Agency Y to make urgent referrals for psychology and psychiatric support.
- A Council officer went to visit Miss C at Placement X in October. Agency Y asked the Council to extend the extra support for Miss C. Agency Y later confirmed it had not received a response from the local mental health teams after making the referrals.
- The Council had contact with Devon CMHT and the provider in February 2015. Devon CMHT recommended the Council review the suitability of the placement. The Council said it would review Miss C’s social care needs but Miss C’s healthcare needs should be met by the local health authority.
- The Council continued to have contact with the local CMHT to see if mental health support was in place for Miss C. Formal mental health support was not in place when the Council had further contact with Agency Y in August.
- The Council said from January to June 2016 Miss C had not received formal support from the local CMHT in Devon. Agency Y served the Council with a notice to terminate the placement in July 2016. Agency Y felt it could no longer meet Miss C’s needs without appropriate mental health support in place. This meant Miss C would have to vacate the provider’s premises within 28 days.
- Further discussions followed between the provider, the Council and local mental health services. Discussions included assessing whether Miss C should be detained under the terms of the Mental Health Act 1983. The Council said Miss C could not stay in the placement past 12 August 2016.
- The Council sourced a new placement and found a provider, Agency G, who could accommodate Miss C in its accommodation located in North London, Placement F. The Council said it was only when Miss C was in transit to the new placement did it discover the accommodation was registered as a hospital with the regulator, the Care Quality Commission (CQC).
- Miss C moved to the placement on 15 August and the Council said as the placement was a hospital it continued the search for a residential placement.
- The CMHT in Haringey CCG assessed Miss C in September and decided to detain her under Section 2 of the MHA and shortly after this changed to section 3. From this date, a disagreement about responsibility and funding between the Council and the CCGs started. The Council agreed to pay for the care Miss C received in Placement F up to the point she was detained under section 3. The Council said Agency G had received no funding for Miss C’s care other than the period it had funded.
- Miss C was released from detention in November and remained a voluntary patient in Placement F. Miss C also became entitled to section 117 aftercare services. She expressed a preference to return to live in Devon. At a meeting in November the Council met with Wokingham CCG. The Council said Berkshire West CCG made a ‘moral decision’ to fund and take on responsibility for Miss C’s care. The Council said Berkshire West CCG later changed its position. This is when a dispute about CCG responsibility started.
- In December, Agency Y provided the Council with costings for a new placement being built. It is unclear if Agency Y told the Council when the new placement would be ready.
- In January 2017, Berkshire West CCG contacted the Council and said Haringey CCG was responsible for Miss C’s section 117 aftercare needs and not Wokingham CCG.
Referral to NHS England
- Miss C’s social worker referred the case to NHS England for a decision on which CCG had responsibility for Miss C’s section 117 healthcare needs. The Council said NHS England provided a summary which concluded New Devon CCG was the responsible health authority with the Council the responsible local authority.
- The Council said this contradicted a previous conclusion that Haringey CCG, being the area where Miss C was detained, was the responsible health authority for Miss C’s section 117 healthcare needs.
- The Council had a meeting at the end of February 2017. It was agreed that
Miss C’s social worker would make a referral to Devon CMHT and learning disability team. The Council noted that New Devon CCG would challenge the recommendation from NHS England.
- The Council received a response from Devon CMHT in March asking it to organise a professionals meeting. The Council also contacted NHS England about CCG responsibility. The Council said it received a response from NHS England which said “NHSE has provided a view on the responsible CCG commissioner in our role to advise and support. Local commissioners will need to work together to agree and resolve the position.”
Agreement to fund Miss C’s Section 117 aftercare
- In March 2017 Agency Y told the Council it would keep the new placement available for Miss C until May 2017. From April 2017, the Council said its officers tried to get agreement from local mental health services in Devon to provide any services to Miss C she would need on discharge.
- Miss C’s social worker and another Council officer remained concerned the dispute was continuing and had not reached a conclusion to determine which CCG was responsible. The officers contacted a Lead Officer working on behalf of NHS England. After involvement from the Lead Officer and escalation of Miss C’s case Berkshire West CCG agreed to jointly fund Miss C’s section 117 aftercare needs to facilitate discharge from the placement.
- Miss C attended a discharge planning meeting on 24 May with Agency Y and the Council present. She was discharged to the new placement in Devon which was run by Agency Y. The Council and Berkshire West CCG agreed to fund the placement. The Council said the dispute between CCGs remains unresolved.
Mental health support in Placement X
- When Miss C moved to Placement X the Council arranged in Devon, she only received social care support and did not have any mental health needs. The Council had a contractual agreement in place with Agency Y to provide social care support.
- Miss C did not have any health needs the CCG should have been aware of. She was not entitled to section 117 aftercare because she was not previously detained under the terms of the Mental Health Act 1983. New Devon CCG was not aware of Miss C’s placement in its area when she moved there in August 2014 because of these factors. However, Miss C was registered with a GP in Devon and therefore health services in Devon would have had some responsibility for Miss C’s health needs.
- Had Miss C had mental health needs at the time she was placed in the Devon area it is most likely the Council would have made a referral to the local mental health team rather than directly to New Devon CCG. In response to a change in Miss C’s needs the Council increased the social care support it commissioned. This is good practice.
- It appears, due to the distance of Placement X from the Council’s area, most of the contact between Miss C’s social worker and Agency Y was by telephone. The evidence available suggests some reviews were conducted by telephone. Care and support statutory guidance is not prescriptive about how reviews should be completed and provides for some flexibility. However, the person receiving care should be involved in reviews and I have not seen enough evidence to show how the Council involved Miss C or her representative in reviews.
- Agency Y reported that Miss C’s need for more specialist, perhaps mental health, support continued to increase over months. The evidence available shows the Council asked Agency Y to make referrals to Miss C’s doctor, who was based in Devon, so she could access mental health support. Although the Council had contact with the provider for updates I have not seen evidence to show it made a formal request for specialist input to the relevant health authority. The Council should have considered making a formal request for support directly to the NHS.
- The referrals made to the NHS did not result in Miss C receiving formal support from the local CMHT and learning disability team. The local CMHT did eventually assess Miss C but then told the Council “the suitability of the current placement is reviewed due to the level of concerning behaviours and potential psychosis”. There was also a suggestion that Miss C would not consent to intervention from the health authority.
- A Council officer replied and said, “of course I will complete a new social care assessment but this will not be in regard to her mental health and should not prevent the health service supporting this young woman...”. I have not seen evidence to show the Council completed a new social care assessment.
- Miss C had a period of stability in the placement for around a year between September 2015 and April 2016. The Council had little contact with the NHS during this period and this probably contributed to the local CMHT leaving the Council with full responsibility. Although the Autism Assessment team completed an assessment, the outcome was that all the health services approached, on more than one occasion, declined to become involved as they did not deem Miss C to be eligible for their specific services.
- It is likely that New Devon CCG was not aware of the situation and there is no evidence to show it received any referrals directly which it then did not act on or progress. Therefore, I do not find New Devon CCG at fault.
- The evidence available shows the Council officer assigned to Miss C’s case tried to get input from the local CMHT. However, this proved unsuccessful. The local mental health team did not offer Miss C formal ongoing support. While this is unfortunate I cannot say this was because of fault by the Council.
- Miss C’s behaviour started to deteriorate and the provider struggled to cope with meeting her needs which it says was due to a lack of mental health support. The lack of formal arrangement in place between the Council and the local CMHT is likely to have contributed to the decision to transfer Miss C back to London once Agency Y decided the placement could not continue without appropriate mental health support being in place. The evidence available suggests that local services in Devon such as the CMHT should have done more to support Miss C.
The Council’s decision to place Miss C in Placement F
- The Council had to urgently act to place Miss C once Agency Y served it with notice to terminate the placement. The Council contacted 16 providers to try and source a new placement for Miss C. Agency G was the only provider who had capacity to take Miss C within the timescale. Staff from Agency G travelled to Devon to assess Miss C in her placement.
- Placement F is an independent hospital run by Agency G. It provides services to adults with learning disabilities who may also have mental health needs. The Council initially believed Placement F was a residential unit. This was because Agency G had told it that it was in the process of deregistering as a hospital. By the time the Council knew the placement was registered as a hospital Miss C was already in transit from Devon.
- It is understandable the Council may have felt under pressure to find Miss C a placement but it should have been aware of the status of Placement F before agreeing to move her to it. It should have ensured Miss C was appropriately placed. It did not do so and I find the Council at fault. Shortly after the move
Miss C was detained under the terms of the Mental Health Act 1983 which would have required hospital setting anyway. Therefore, any injustice relating to the type of placement Miss C was initially moved to is limited to the period before her detention.
- The Council funded Miss C’s move to Placement F and continued to fund the placement while she was detained under section 2. It is not common practice for councils to provide funding when someone is detained in a hospital setting. The Council’s decision to continue to fund the placement suggests it was committed to Miss C’s case.
- Once the health authority decided to detain Miss C under section 3 the Council could no longer fund the placement as its social care duty ended. Miss C was detained so she could receive appropriate heath funded care and mental health treatment from health professionals such as the NHS or a specialist provider.
- It is likely the Council’s initial decision to place Miss C in a hospital caused some confusion about funding after Miss C was detained. However, this does not lead to a view the Council remained responsible for funding the placement for the duration. It is likely, on balance, the Council’s duty to fund the placement ended once Miss C was detained and became subject to sections 2 and 3. The law and relevant guidance ‘Who Pays’ is clear on what process should be followed to determine the responsible commissioner. Considering the law and guidance relevant at the time I do not find fault in the way the Council made its decision.
- There is evidence to show the Council continued to look for a more suitable placement while Miss C remained subject to section 3. It also made effort to establish which CCG was responsible for Miss C’s care and treatment because Agency G was not receiving payment after Miss C was detained. This is good practice by the Council.
The care Miss C received in Placement F
- A CQC inspection of Placement F carried out a few months before Miss C moved there noted that it required improvement. In its published report in August 2016 the regulator found examples of poor management of patients’ care records and recording of incidents. Patients’ needs and how they were being met were not clear in care plans, files and records. CQC also found that patients had mixed views about their activities and level of satisfaction. The report records a breach of regulation related to ‘assessment or medical treatment for persons detained under the Mental Health Act 1983’.
- Mrs B reported that while Miss C remained in Placement F she showed signs of stress and was having nightmares. Mrs B felt this was because Miss C had to remain in Placement F for longer than necessary. She also felt it was because the care and treatment did not meet expected standards. Mrs B reported Agency G and Placement F to the regulator CQC.
- The Council confirms Agency G did not send it regular weekly updates as it should have done. It said it raised a complaint with the management about this. It is noted that after the Council stopped paying for the placement there was no health authority taking responsibility for the placement during the time she was receiving care and treatment at Placement F.
- CQC carried out an inspection in August 2017. Miss C was no longer living at Placement F and the report is used as guide to check improvement. The report published by CQC rated the service at Placement F as ‘inadequate’. The regulator found that services had not improved since the last inspection in
May 2016 and found that Agency G had breached health and social care regulations. The breaches included those relating to the assessment or medical treatment for persons detained under the Mental Health Act 1983.
- The health authorities named in this complaint have not provided documentary evidence to satisfy the Ombudsmen that Miss C received good care and treatment in line with health and social care legislation while she remained in Placement F. This is likely to be because of the dispute between the CCGs which resulted in no authority taking responsibility for Miss C’s placement when she was detained. However, the relevant guidance says “the safety and well-being of patients is paramount. The underlying principle is that there should be no gaps in responsibility…”. Therefore, one of the health authorities should have taken responsibility for Miss C’s care and support arrangements and then followed the dispute process. I find the CCGs at fault.
- It is likely, on balance, based on the evidence available that the care and treatment Miss C received in Placement F between August 2016 and
November 2016 fell below expected standard. This is likely to have had an adverse impact on her wellbeing and caused her mother, Mrs B, avoidable distress.
- Although Miss C was medically fit for discharge she had to remain in the placement because there was no health authority willing to accept joint responsibility with the Council for her section 117 aftercare needs. A care and treatment review completed identified that she wanted to return to Placement X. It was felt that a return to a different placement would be detrimental to her needs and outcomes. However, the review said a plan needed to be in place before a move could take place.
- Agency Y wanted there to be an appropriate plan before agreeing that Miss C could return. This was because the placement had previously failed due to a lack of appropriate support. This was an unfortunate situation which is likely to have impacted adversely on Miss C and caused distress to her mother Mrs B. However, the Council was not at fault as it was willing to provide section 117 aftercare but could not do so without a willing CCG joint partner. Therefore, I find the CCGs at fault.
- Furthermore, the evidence available shows the Council actively tried to resolve the situation. When the Council could not make progress, it escalated the matter to NHS England so it could arbitrate.
Dispute between the CCGs and referral to NHS England
- The Council approached a different authority CCG not named in this complaint following Miss C’s detainment. This authority area was where Miss C was registered with a GP. Responsibility was disputed by this CCG as it felt New Devon CCG was responsible for Miss C’s aftercare needs.
- Miss C was detained in the London area and the relevant CCGs at this point were the CCG where Miss C was registered with a GP, Berkshire West CCG and Haringey CCG. New Devon CCG was also involved in the dispute because it was not clear to the other CCG authorities whether it had previously provided funding for Miss C when she lived in Placement X.
- The Council said Berkshire West CCG initially agreed to take on responsibility for Miss C’s aftercare. However, it appears that it later reneged on this agreement. This left the Council in a position where it was the only authority which had committed to meet Miss C’s section 117 aftercare needs. The Council continued to liaise with Agency G while Miss C remained subject to section 3.
- Agency G’s legal representative wrote to all three CCGs named in this complaint about fees owed for Miss C’s placement for the period she was detained on section 3.
- Who Pays guidance sets out what should happen when there are disputes about which CCG is the responsible commissioner. NHS England can act as arbitrator and did so in this case. NHS England decided that New Devon CCG was responsible for Miss C’s aftercare needs but New Devon CCG disputed this. There was no provision to escalate the complaint so the CCGs dispute continued. However, one of the CCGs should have taken responsibility while the dispute continued.
- NHS England arbitrated and provided a view on who it thought was the responsible commissioner. However, it is unclear what information NHS England based its decision on at the time. Following this arbitration there was little more that NHS England could do. I do not find NHS England at fault.
- It is not for the Ombudsmen to decide in this case which CCG was the responsible commissioner. The Ombudsmen have considered how decisions were made, whether there was fault and if there was fault did this cause injustice to the person affected.
- Miss C was released from detention around November 2016. This meant she was eligible for section 117 aftercare. Councils and clinical commissioning groups are jointly responsible for this provision. The Council accepted responsibility for
Miss C’s aftercare needs which related to social care. I have seen little evidence to show it disputed its position or tried to shirk responsibility. This is good practice.
- Miss C moved from Placement F in May 2017 and it is likely she could have moved sooner had the CCGs resolved the dispute or one CCG agreed to act in Miss C’s best interests while resolving the dispute. Who Pays guidance says, “the NHS is expected to act in the best interest of the patient at all times and work together in the spirit of partnership”. That did not happen in this case and the CCGs are at fault.
- Eventually, Berkshire West CCG took responsibility for Miss C’s aftercare needs together with the Council. This was after Council officers assigned to Miss C’s case had escalated the dispute to NHS England.
- The dispute between CCGs about responsibility meant Miss C remained in an inappropriate placement for longer than necessary. The Council reported that this was evidenced by Miss C being prescribed anti-depressants to manage her low mood and an escalation in self-harming behaviours while the uncertainty of a move remained unclear. This is likely to have impacted adversely on her wellbeing and caused her mother, Mrs B, avoidable distress.
Mrs B’s remaining concerns
- At the time of this complaint Mrs B said the dispute about which CCG would provide long term commitment was unresolved. The Council also confirmed this. There are also concerns about health services in Devon not agreeing to provide Miss C with care and support, for example, psychological input.
- It is important that the authorities now involved in Miss C’s care and support arrangements provide reassurance to Mrs B and Miss C about any remaining concerns.
- The authorities named in this complaint have agreed to the Ombudsmen’s recommendations and within six weeks of the final decision the:
- CCGs named in this complaint will each write a letter of apology to Miss C for the adverse impact on her wellbeing caused by the dispute between CCGs which led to her remaining in an inappropriate placement for longer than necessary;
- CCGs named in this complaint will each write a letter of apology to Mrs B for the avoidable distress she experienced;
- CCGs named in this complaint will each pay Miss C £500 to acknowledge the adverse impact the dispute had on her wellbeing for at least eight months;
- CCGs named in this complaint will each pay Mrs B £150 to acknowledge the avoidable distress she experienced for at least eight months;
- CCGs named in this complaint will review the current NHS ‘Who Pays’ guidance on resolving disputes to see if any lessons can be learnt; and
- Council will reiterate to officers involved in contracting and commissioning the importance of gathering necessary information about prospective providers, such as registration status, when considering placements.
- I uphold Mrs B’s complaint as set out in the findings section of this decision statement. The authorities have agreed to the Ombudsmen’s recommendations so I have completed the investigation.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman