The Ombudsman's final decision:
Summary: A man complained about mental health services provided to his son by the council and an NHS Trust. He complained about delays in assessments, about not receiving all the support services they wanted, and that staff encouraged his to move to independent housing which led to him being exploited and developing a drug addiction. We found that the Trust and Council failed to review his son’s need for support when he moved, but we could not link this to the drug addiction or other matters. We found that there were delays with social care assessments and the provision of direct payments.
- Mr P complains about the local community mental health services, which Surrey and Borders Partnership NHS Foundation Trust (the Trust) provides for both the Trust and Surrey County Council (the Council). He says:
- The care plans and social care assessments completed by the Trust and Council for his son Mr D took too long, which caused delays before the necessary services were in place;
- The Trust and Council failed to continue to provide respite breaks for Mr P as a carer. They failed to continue to provide Mr D with direct payments for the gym and a holiday. These services would have helped their well-being.
- Staff encouraged Mr D to move to accommodation which was unsuitable for him. They did not properly assess and recognise the risks, in particular of him being exploited by others. They did not recognise that he lacked the capacity to decide where he should live. As a result, local drug dealers exploited Mr D and he developed a drug addiction. This had severe consequences for Mr P.
The Ombudsmen’s role and powers
- 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. 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.
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team acting for both Ombudsmen has considered these complaints. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- 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)
- The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, section 26A(1) and 26A(2), as amended)
- The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. Nor can they decide what level of care is appropriate for any individual. We must consider whether there was fault in the way the relevant decisions were reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
How I considered this complaint
- I reviewed information provided by Mr P, the Trust and the Council in writing and by phone. I spoke with My D by phone. I took account of relevant law, policy and guidance.
- I shared a draft of this decision with the parties to the complaint and considered their comments.
What I found
- A Community Mental Health Team (CMHT) provides mental health care support from health and social care professionals in the community. This usually includes social workers, occupational therapists, community psychiatric nurses (CPNS), psychologists and psychiatrists.
- The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure that they are met.
- The Trust’s policy for care planning and assessment says care plans and carers plans should be “reviewed and evaluated on an ongoing basis”, and assessments should be updated whenever necessary. Reviews should take place at least every 12 months, more if needed.
Care Act 2014
- Under the Care Act, which came into force in April 2015, councils must assess the needs of any adult who appears to need care and support. An assessment should be carried out over a reasonable timescale taking into account the urgency of needs. Councils should let the individual know how long assessments are likely to take, and keep them informed through the process.
- The eligibility criteria for community care services is set out in the Care and Support (Eligibility Criteria) Regulations 2014. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. For a person to have needs which are eligible for support, the following must apply:
- The needs must arise from or relate to a physical or mental impairment or illness.
- Because of the needs, the adult must be unable to achieve two or more of the following outcomes:
- managing and maintaining nutrition;
- maintaining personal hygiene;
- managing toilet needs;
- being appropriately clothed;
- being able to make use of their home safely;
- maintaining a habitable home environment;
- developing and maintaining family or other personal relationships;
- accessing and engaging in work, training, education or volunteering;
- making use of necessary facilities or services in the local community including public transport and recreational facilities or services; and
- carrying out any caring responsibilities the adult has for a child.
- Because of inability to achieve these outcomes, there is likely to be a significant impact on the adult’s well-being.
- Where councils have determined that a person has any eligible needs, they must meet those needs. They must provide a care and support plan, showing the person’s needs, goals, and how they will be met. They should include a personal budget to show the funds allocated to meet the person’s eligible needs.
- Section 10 of the Care Act 2014 says that when it appears that a carer might need support, a council must carry out a carer’s assessment. Carer’s assessments must address the person’s support needs and outcomes they want to achieve. When the person has eligible support needs, they should have a carer’s support plan. Councils can give carers direct payments through a carer’s budget so they can guy goods or services to help them continue to care for someone. Carers may also receive breaks from their caring duties (respite).
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Under the MCA and the Code, people must be presumed to have capacity unless there is proof to the contrary. When there is doubt, their capacity to make a particular decision should be assessed. All practicable steps should be taken to support people to make their own decisions before concluding they lack capacity.
- An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:
- Does the person have a general understanding of what decision they need to make and why they need to make it?
- Does the person have a general understanding of the likely effects of making, or not making, this decision?
- Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
- Can the person communicate their decision?
Section 75 agreements
- Section 75 of the NHS Act 2006 allows NHS organisations and councils to delegate their functions to one another. These arrangements are known as Section 75 Agreements. Under them, NHS organisations can take on social work services which are normally provided by councils. Subsection 5 of section 75 says the NHS and councils remain liable for their own functions.
- Where the NHS and council work together under partnership arrangements and the distinction between roles and responsibilities is unclear, the Ombudsmen will not spend disproportionate time deciding individual responsibility. In these situations, if the Ombudsmen find fault they will assign it to the partnership as a whole and expect each body to contribute to any proposed remedies.
Complaints to the Trust
- Mr P’s complaint said Mr D’s care plan and his carer’s assessment were completed in July 2015 but the gym membership and respite breaks were only processed in January 2016. He said staff refused Mr D’s request for a “therapeutic break”, even though in the past his consultants supported this. Further, staff also refused his request for a break for himself. Mr P said Mr D’s previous CPN encouraged Mr D to believe he could be independent. Mr P said his view that Mr D could not live independently was ignored. Mr P said this encouragement caused many problems. These included that Mr D was robbed, drug dealers took over his bedsit, Mr P’s belongings were stolen, Mr D became a heroin and cocaine addict and Mr D’s debts substantially increased. Mr P suffered considerably. Mr P said before these events, Mr D was not using heroin and cocaine.
Response from the Trust
- The Trust’s response to Mr P’s complaint said it gave him a copy of Mr D’s care plan in May and June 2015, plus a copy in September, and that Mr P and Mr D had the opportunity to make amendments. It said it shared the final draft of the care plan with them both in October 2015, and Mr P’s views were considered. It said the social care assessment took a long time because of concerns about Mr D’s substance use and capacity, and because Mr P disagreed with parts of the assessment. It partly upheld the complaint because the assessment took a long time.
- The Trust said it assessed Mr D’s social care needs in line with the Care Act eligibility criteria. His eligible needs could be met through psychology, support from organisation to help him with employment, and a gym membership. It found no reference to Mr D requesting a holiday, and the assessment did not find that he needed a holiday to meet his needs. It said the professionals found that short breaks away from caring responsibilities would meet Mr P’s needs more than one long break. He was given funding for short breaks every three months, plus a gym membership.
- The Trust said staff working with Mr D found that he would need more support to live independently and planned to provide this when he moved, through the housing provider and “Enabling Independence” workers. They could not put this in place because they were not told when he moved. It said it documented and considered Mr P’s concerns.
- Regarding Mr D’s drug addiction and the associated events, the Trust said his mental state was stable. He’d had difficulties with substance misuse and stolen items from Mr P’s home before he moved into the flat. He had declined support with his substance misuse. It said the debts Mr P referred to were from Mr D calling premium rate phone lines, for money he owed Mr P for items he’d stolen, and resulting from his drug misuse. It said its staff had supported Mr P through this difficult period.
- The Trust’s internal investigation report said that staff consistently assessed Mr D as having capacity to make the decisions he made about his accommodation, finances and substance misuse. It noted that nursing staff were unfamiliar with social care processes and the Care Act, which contributed to the delay in the assessment. It recommended more training for staff on this. The Trust told us it has completed this.
Delayed care plans and assessments
- The records show that Mr D’s CPA care plan was regularly reviewed. However, as noted in the Trust’s response, it should have been properly transferred to the new team which took over his care in April 2016.
- The records say a social worker noted on 17 June 2015 that they would complete a social care assessment for Mr D as soon as possible. A meeting scheduled for 24 July was cancelled by Mr P. There was a meeting for the assessments on 27 August. It appears the meeting was dominated by discussion about the management of Mr D’s finances and Mr P’s concern that Mr D’s friends were pressuring him for money and drugs.
- A copy of a social care assessment and carer’s assessment were given to Mr P and Mr D in October 2015. The social worker recorded that there was a delay with writing the assessment up because of the concerns Mr P had raised, but these did not affect the outcome of the assessment. No rationale for this was included to explain how this view was reached. However, there is evidence that the concerns were explored with Mr D. Staff offered Mr D support and he refused it. There is also evidence of the social worker requesting further information from Mr P about Mr D’s circumstances. Therefore, Mr P’s views were considered.
- I have seen no information in the Trust’s records provided about when the direct payments were made to Mr D and Mr P for the services identified on their support plan, but Mr P said they were processed in January 2016. There is no information in the records the Trust provided to account for this delay.
- The Trust has recognised that the assessments took too long. I find that the delay in providing the direct payments for the services on the support plans is also fault. There is evidence that this caused Mr P frustration, which is an injustice to him. I have not seen evidence that it caused injustice to Mr D.
Provision of a respite break for Mr P and a gym membership and holiday for Mr D.
- The records say Mr P was awarded funding to pay for a gym membership and for short respite breaks. I have seen no information in the records to show how the amount was calculated to ensure that it would meet Mr P’s needs for respite. Staff should document this in the support plan.
- The records show that the professionals considered Mr P’s needs as a carer and provided a significant amount of support to him. They considered that short breaks from caring for Mr D would meet his respite needs better than a longer holiday. It is not for the Ombudsmen to question professional judgement about how eligible needs would best be met.
- Mr P asked at times for a holiday for both him and Mr D together. This would not have met a need for respite from each other. He also asked for a holiday for Mr D to get him away from his associates and because he felt it would be therapeutic for Mr D and allow him time to reflect on the events. There is no evidence that Mr D asked for a holiday himself, and this was not identified as an eligible need on his social care assessment. The Trust and Council were entitled to only provide the services they identified as meeting specific eligible needs using the Care Act criteria.
- The professionals explored options for Mr D to get him away from the flat when his associates had his keys, as a way of managing risk to him. They did not need to do more than this. That Mr D’s consultants had previously supported him having funding for a holiday does not mean that staff should have found that a holiday was an eligible social care need under the Care Act.
- With regard to the gym membership for Mr D, the social care assessment of October 2015 notes that using the Care Act criteria, the direct payment for the gym was no longer an eligible need, so should not continue. Mr D was accessing the community independently at the time. There is no fault with this.
Mr D’s move to the flat
- The Trust’s records show that Mr D repeatedly expressed a desire to live independently back to at least 2014. Records from April 2015 say both his parents wanted him to live independently too. His parents considered renting accommodation for him privately, and both Mr P and Mr D took part in discussions and plans to arrange social housing for him.
- I have not found evidence that the Trust’s staff pushed him into the move. The evidence suggests that they supported him towards achieving his goal. They took into account that the strained relationship between Mr P and Mr D at home was not likely to be helpful. They identified that Mr D was likely to have difficulty managing the financial aspects of living independently, but there were no plans to change the fact that Mr P looked after his finances.
- There are frequent references in the records to Mr D having the capacity to make his own decisions, and frequent references to his mental health being stable. Therefore, I have not found that the Trust failed to consider his capacity to decide where he lived. Without signs that Mr D’s capacity to decide to accept the flat might be compromised, the Trust had to support his decision. That the move was unsuccessful does not show that the Trust was at fault for not advising Mr D against it.
- Health and social care professionals are expected to work with people to promote their independence, and to provide support where the person needs it to increase their independence. The provider of Mr D’s flat offered support to help people live independently, but Mr D chose not to accept this. The Trust offered Mr D an occupational therapy assessment of his daily living skills, and he refused it.
- However, the Trust identified in the social care assessment of October 2015 that both Mr D and Mr P would need more support when Mr D moved. The Trust’s complaint investigation report said this could not be put in place because staff were not told when he moved. But the move had been planned for several months before Mr D moved, and staff knew it was forthcoming. Though they identified that Mr D would need more support, I have seen no evidence of planning for what that might involve, which would have included a consideration of the risks to Mr D. There is evidence in the Trust’s records that Mr D told his care coordinator about the move on 20 May 2016, around the time he moved. There is no evidence that the care coordinator considered additional support for Mr D or Mr P then, and no review of the social care assessment and support plan. I consider that this was fault.
- I cannot say whether this fault had an impact on what happened later, because we do not know what support would have been offered, whether Mr D would have accepted it, and if so what effect this may have had. But the uncertainty around this is an injustice to Mr P and Mr D.
- I cannot link any fault by the Trust or Council to Mr D’s behaviours around his acquaintances, his drug addiction, or his behaviours towards Mr P. There is evidence in the records that Mr D was stealing items from Mr P and using cannabis and cocaine back to at least September 2015. He did not tend to be open with professionals about his drug misuse. Mr D’s mental health was consistently reported to be stable, and there are consistent notes that he had the capacity to make his own choices. The records show that the professionals believed the difficulties Mr D experienced when living independently were down to his choices, rather than because of vulnerability caused by his mental health condition. In these circumstances, neither the Trust or Council could prevent this behaviour.
- Within one month, the Trust and Council will jointly write to Mr P and Mr D to apologise for the impact of the faults I found, and explain how they will prevent similar faults in future.
- I find that:
- The social care assessments were delayed, and there were further delays providing the direct payments. This caused frustration to Mr P.
- There is no evidence of fault with the decisions the Trust and Council made about what to fund through direct payments.
- The Trust and Council were at fault for failing to review Mr D’s need for support when he moved into his flat (or before), and for failing to put in place the additional support that they identified he and Mr P would need. There is uncertainty about what impact this may have had. I cannot link this fault to Mr D’s drug addiction, the consequences of this, or his behaviour to Mr P. However, it was a missed opportunity and the uncertainty about this is an injustice.
Investigator's decision on behalf of the Ombudsman