Camden and Islington NHS Foundation Trust (18 000 974a)

Category : Health > Mental health services

Decision : Upheld

Decision date : 22 Jul 2019

The Ombudsman's final decision:

Summary: The complainant said London Borough of Islington and Camden and Islington NHS Foundation Trust failed to properly consider his brother’s entitlement to aftercare services which should have been provided without charge. During the investigation, the Council and the Trust accepted they were at fault as they had failed to act in accordance with the terms of the Mental Health Act 1983. As a result, the complainant’s brother paid for services which should have been provided without charge. To remedy the injustice, the Council and the Trust have agreed to the Ombudsmen’s recommendations to repay the financial loss plus interest. Both the Council and the Trust will apologise to the complainant and his brother, make additional time, trouble and distress payments, provide training for staff, and improve practice. The Council will also complete a register to identify whether anyone else in its locality has been affected.

The complaint

  1. The complainant, who I shall refer to as Mr B, complains on behalf of his brother Mr C. Mr B complains that London Borough of Islington (the Council) and Camden and Islington NHS Foundation Trust (the Trust) wrongly charged his brother for aftercare services between 2004 and 2010. Mr B claims because of the alleged fault his brother is out of pocket. Mr B also said he spent considerable time and trouble pursuing a complaint.

Back to top

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, 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)).
  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. 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)

Back to top

How I considered this complaint

  1. I have considered information provided by the organisations named in this complaint and information from the complainant provided in writing and by telephone. I have also considered the law and guidance relevant to this complaint.
  2. The complainant, the Council and the Trust were given an opportunity to provide comments on a draft of this decision.

Back to top

What I found

Legal and administrative background

  1. Under the terms of the Mental Health Act 1983, 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 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 and safety and/or safety of others. In conjunction with the opinion of the two medical practitioners, an Approved Mental Health Professional must also agree the legal criteria for detention are met and that admission, considering all the circumstances of the case, is the least restrictive option in the best interests of the person.
  2. The purpose of detention under section 2 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
  3. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
  4. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. 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.
  5. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health and social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for.

Background

  1. Mr C was detained in hospital under section 3 of the Mental Health Act in August 1997. He was discharged from section 3 and moved to a different hospital about two months later. He then moved to a rehabilitation project. Mr C moved again in 2004 to Placement X, a residential home, which was deregistered and changed its status to a supported living project in 2010. He remained living in the supported living project.
  2. Mr C remained subject to the care programme approach once he was discharged from section 3. The Council was appointed as Mr C’s Court of Protection Deputy for finances from November 2015 as he lacked capacity to manage his financial affairs.
  3. Although the events giving rise to this complaint occurred some time ago Mr B became appointee for Mr C around 2016. Following his own investigation and examination of Mr C’s financial affairs he complained to the Trust once he became aware there was a problem. Mr B said the Council and the Trust should have assessed his brother after he left hospital
  4. The Trust investigated Mr B’s complaint and provided a response. It told Mr B the following:
    • Its investigator spoke to the Council, who explained it held records dating back to 1993. There was no evidence in these records to support the assertion that Mr C was entitled to section 117 aftercare.
    • Three care-related documents from 2003, 2007 and 2008 said Mr C was not entitled to section 117 aftercare.
    • There was no evidence directly related to Mr C’s reviews between his discharge from section 3 in 1997 and when he moved to the Placement in 2004.
    • There was ‘no documentary evidence available for a clinical decision regarding [Mr C’s] s117 status.’
  5. In its letter to Mr B the Trust concluded, “the Trust holds no evidence that your brother was subject to MHA S117 from 2004 to 2010. The evidence collected in our investigation suggest that your brother was not subject to MHA S117 at this time.”
  6. Mr B met with representatives from the Trust in January 2018 because he remained dissatisfied with the Trust’s response to his complaint. Mr B said he had not received any evidence to satisfy him his brother was not subject to
    section 117 aftercare. The Trust’s representative said, “the evidence in the notes suggests by the time [Mr C] was at Placement X he was no longer subject to MHA section 117”. Mr B did not agree with this statement.
  7. The Trust sent a letter to Mr B around the same time as the meeting informing him that if he remained dissatisfied he could ask the Ombudsmen to consider a complaint. Mr B had complained to the Trust about other matters which included the alleged mismanagement of his brother’s bank account and misappropriation of funds.
  8. Mr B also provided documentary evidence to show he had also complained to the Council about the matters he complains about. A letter from the Council to Mr B said it had not charged Mr C for services and he was assessed as nil charge between the years 2004 to 2010.
  9. Mr B forwarded a complaint to the Ombudsmen promptly after receiving the final responses from the Trust and the Council.

The Council’s response to the Ombudsmen’s enquiries

  1. A request for information about the complaint was made from the Ombudsmen to the Council and Trust. The Council provided a joint response after an initial delay by the Trust.
  2. The Council, also replying on behalf of the Trust, accepted both authorities had come to the wrong conclusion when responding to Mr B’s complaint. The Council said the complaint should have been upheld. The Council acknowledged the errors in stating Mr C was not eligible for s117 aftercare services although he was previously admitted under section 3 of the Mental Health Act 1983.
  3. The Council said Mr C’s accommodation at Placement X should have been provided without charge between November 2004 and April 2010 in line with section 117 of the Mental Health Act 1983.
  4. The Council apologised to Mr C for the financial loss of paying for accommodation he should not have paid for. To remedy the injustice caused by this fault the Council said it would repay Mr C £19,218.13 to account for the costs he paid for accommodation between November 2004 and April 2010. It will also pay £7,902.17 of accrued interest for the period stated. The Council will pay £27,120.30 in total to Mr C.
  5. The Council will pay Mr C an additional £500 to acknowledge the prolonged financial loss had on Mr C.
  6. The Council also recognised the delay in responding to Mr B’s complaint and the unsatisfactory response provided. It apologised for this and offered to pay Mr B £200 to acknowledge his time and trouble in pursuing the complaint.
  7. The Council recognised the potential risks to Mr C in managing the money it will pay to him. It said it would complete a section 9 needs assessment under the Care Act 2014 and provide support to his appointee Mr B, and to the family if they agree to manage the funds on Mr C’s behalf. Mr B responded and said it is not necessary for the Council to provide support or complete an assessment as he will manage the funds on Mr C’s behalf.
  8. The Council also stated it will offer Mr B and any other family members a carers assessment to ensure they are receiving support in line with the Care Act 2014.
  9. The Trust will review Mr C’s Care Programme Approach (CPA) support plan and consult with his family representatives during the review to ensure all eligible services and support is in place.

Lessons learnt by the Council and the Trust

  1. The Council and the Trust have taken steps to implement measures to minimise the same mistake it their complaint procedures. They have created a working group with the relevant local clinical commissioning group to share good practice. This includes learning from the complaint and improving services for people eligible for section 117 aftercare services.
  2. The Council will create a register of all persons eligible for section 117 aftercare services. Both the Council and the Trust will seek to identify if anyone has paid for their section 117 aftercare services, and if they had, the authorities will provide appropriate redress.
  3. The Council provided a copy of a draft action plan which sets out identified learning objectives, action to be taken, lead organisation, desired outcome and date for completion.

Findings

  1. Despite the initial view by the Trust that Mr C was not eligible for section 117 aftercare services the response from the Council accepts that he was. There was fault by the Council and the Trust, and this is no longer disputed.
  2. The fault caused Mr C injustice as he paid for services the Council and the local CCG should have provided without charge. The Council accepts this and has acted to remedy the injustice caused by this fault. The Council offer to repay Mr C the money he paid for rent plus additional interest is a satisfactory outcome. There is no need for the Ombudsmen to make a further recommendation to remedy this injustice.
  3. It is unlikely Mr C was aware of his injustice until his brother, Mr B, raised the complaint. Therefore, he is unlikely, on balance, to have experienced distress caused by the financial loss during the period complained about. However, the Council accepts the fault may have impacted on his finances. It has offered to pay him £500 and the Ombudsmen consider this as a satisfactory outcome.
  4. Mr B has been pursuing this complaint since 2016 when he became Mr C’s appointee for welfare benefits. He wrote several letters to the Trust and the Council, followed up with phone calls and attended meetings. It is likely, on balance, that Mr B experienced avoidable distress during the time he pursued a complaint. Despite his valid complaint points there was a continued lack of awareness and understanding by practitioners and officers about section 117 aftercare services. The Council and the Trust have recognised this and will make improvements.
  5. Overall, the response now provided by the Council is a satisfactory outcome for this complaint. It is good practice for the Council and the Trust to accept fault, remedy the personal injustice, learn lessons, and make improvements.

Back to top

Agreed Recommendations

  1. Within four weeks of the date of the final decision the Council and the Trust will:
    • ensure Mr C receives a joint letter of apology from the Council and the Trust to acknowledge the impact on his finances when they failed to consider his entitlement for accommodation in line with section 117 of the
      Mental Health Act 1983;
    • ensure Mr C receives a payment of £27,120.30 and an additional payment of £500 into his preferred bank account. The Council should arrange the payment via Mr B who manages Mr C’s finances;
    • review Mr C’s CPA support plan and include family members as appropriate;
    • ensure Mr B receives a joint letter of apology to acknowledge his time and trouble in pursuing this complaint and the distress he experienced when he was told wrong information over a prolonged period;
    • ensure Mr B receives the £200 payment offered by the Council. The Trust will pay Mr B an additional £300 to acknowledge the injustice he experienced; and
    • ensure Mr B and any other family members who provide informal care are offered a carers assessment in line with the Care Act 2014 and receive support if found eligible.
  2. Within three months of the final decision the Council and the Trust will provide an update to the Ombudsmen to show the progress made with the action plan referred to in paragraphs 31 – 33 of this decision statement.
  3. The Council will also tell the Ombudsmen whether it has identified any other persons affected by similar faults and what action has been taken to put things right. The Council should ensure any person affected is made aware they can ask the Ombudsmen to consider a complaint if necessary.

Back to top

Final decision

  1. I have considered the comments provided by Mr B, the Council, and the Trust, and the Council and Trust have agreed to the Ombudsmen’s recommendations. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman

Print this page

LGO logogram

Review your privacy settings

Required cookies

These cookies enable the website to function properly. You can only disable these by changing your browser preferences, but this will affect how the website performs.

View required cookies

Analytical cookies

Google Analytics cookies help us improve the performance of the website by understanding how visitors use the site.
We recommend you set these 'ON'.

View analytical cookies

In using Google Analytics, we do not collect or store personal information that could identify you (for example your name or address). We do not allow Google to use or share our analytics data. Google has developed a tool to help you opt out of Google Analytics cookies.

Privacy settings