The Ombudsman's final decision:
Summary: The Ombudsmen find no fault in a mental health team’s decision to discharge a patient back to his GP. The patient remains entitled to section 117 aftercare.
- Mr N complains that Dr R incorrectly discharged him back to the care of his GP in March 2018, and his section 117 aftercare support has incorrectly ceased. Dr R is a psychiatrist at Camden & Islington NHS Foundation Trust (the Trust)
- Mr N says that, as a result, no one is providing the health and social care support he is entitled to. He said this has had a negative impact on his mental health and made him more vulnerable. Mr N says he has recently had to access emergency/crisis services because of lack of section 117 support.
- Mr N would like appropriate section 117 aftercare to be reinstated as soon as possible.
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)).
- Section 37 of the Mental Health Act 1983 (the MHA) allows authorities to detain people in hospital instead of prison. Section 117 of the MHA imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 37. Councils and NHS Clinical Commissioning Groups (CCGs) cannot delegate these aftercare duties, regardless of the day‑to‑day arrangements for delivering a person’s aftercare. In view of this, Ombudsmen investigations about section 117 aftercare will always include the relevant council and CCG. The Trust provided a service to Mr N and is therefore also included in the investigation.
- 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 read the correspondence Mr N and his sister sent to the Ombudsmen. I considered the records the organisations provided. I also considered relevant legislation and guidance and took advice from a clinical adviser – a Consultant Psychiatrist with relevant knowledge and experience.
- I shared a confidential copy of my draft decision with Mr N and the organisations to explain my provisional findings. I invited their comments and considered the comments and documents I received in response.
What I found
- Section 117 of the MHA requires councils and CCGs to provide free aftercare services to certain people. This includes people who have been discharged from detention in hospital under section 37 of the MHA. They must provide these services from the point the person leaves hospital until the council and CCG decide the person no longer needs them.
- Section 117 does not define what aftercare services are. The MHA Code of Practice (the Code) gives some guidance on this. Paragraph 27.1 of the 1999 Code detailed that: ‘the central purpose of all treatment and care is to equip patients to cope with life outside hospital and function there successfully without danger to themselves or other people’.
- Patients do not have to accept the aftercare services offered to them (paragraph 33.24 of the 2015 Code).
Ending section 117 aftercare
- People do not automatically remain entitled to section 117 aftercare for life. Professionals should keep the person’s eligibility under review. They may decide a person no longer needs aftercare and end their entitlement.
- In February 2000 the Department of Health issued a Health Service and Local Authority Circular titled ‘After-care under the Mental Health Act 1983: Section 117 After‑Care Services’. I will refer to this as the Health Circular. This noted it ‘is for the responsible health and social services authorities to decide in each case when after-care provided under section 117 should end, taking account of the patient’s needs at the time’.
- The Code says the same thing. Paragraph 33.20 of the 2015 Code states ‘The duty to provide after-care services exists until both the CCG and the local authority are satisfied that the patient no longer requires them’.
- Authorities should not withdraw aftercare services solely because the patient has been discharged from the care of specialist mental health services (paragraph 33.21 of the 2015 Code).
Responsible commissioner – NHS
- At times it can be unclear which CCG and which council are responsible for providing a person’s section 117 aftercare.
- In 2007 the Department of Health published its guidance ‘Who Pays? Establishing the Responsible Commissioner’. I will refer to this as the Who Pays Guidance. This set out to help make clear which organisation would be responsible for commissioning a person’s care within the NHS. The Who Pays Guidance included separate guidance about section 117 aftercare.
- Both the Health Circular and paragraph 85 of the Who Pays Guidance note: ‘a patient who was resident in an area before admission to hospital does not cease to be resident there because of his/her detention under the [Mental Health] Act. If a patient with ordinary residence in one area is sent to another area on discharge, it is the responsibility of the health and social services authorities in the area where the patient was resident before admission to make the necessary arrangements under section 117’.
- However, the Health Circular and Who Pays Guidance both also note: ‘where a patient does not have a current residence, the responsibility for providing after‑care under section 117 falls to the health and social services authorities covering the area to which the person is sent on discharge’.
- The Who Pays Guidance also contained a section of people of no fixed abode. Paragraph 17 noted: ‘Where a patient has ‘no fixed abode’ and they are not registered with a GP practice, the responsible [Primary Care Trust (organisations that were replaced by CCGs)] should be determined by the terms of the ‘usually resident’ test’. Annex A noted the main factor in deciding someone’s ‘usual residence’ is ‘the patients’ perception of where they are resident’.
- In 2011 the Department of Health issued its best practice guidance Ordinary Residence. Paragraph 185 repeated the guidance that responsibility for section 117 aftercare rests on where the person was resident before being detained unless this could not be established. Paragraph 187 guided that ‘The term “resident” is not defined in the 1983 [MHA] Act, and so, like “ordinarily resident” the term should be given its ordinary and natural meaning subject to any interpretation by the courts’.
- A new version of the Who Pays Guidance came into force in September 2013. This said the CCG responsible for section 117 aftercare should be determined by where the person’s GP is registered. Or, if they do not have a GP, where the person is ‘usually resident’. This repeated the guidance that the main factor in determining ‘usual residence’ is the person’s perception of where they are resident. This version of the Who Pays Guidance also said that if a person is resident in one area but discharged to another the responsible commissioner will be the one of the area the person moves to.
- An annex to the Who Pays Guidance came into force on 1 April 2016. This effectively reversed the 2013 changes. It set out that the originating CCG would continue to be responsible for section 117 aftercare services even where the person is discharged to a different area.
Responsible commissioner – local authority
- The current version of section 117 of the MHA sets out the responsible local authority is the one where the person was ordinarily resident immediately before they were detained.
- In 1993 the Department of Health issued Local Authority Circular Ordinary Residence (LAC (93)7). I will refer to this as the LA Circular. This noted in the summary that its guidance covered aftercare for people detained under the MHA. Paragraph 16 noted that ‘When a person states that he has no settled residence or describes himself as NFA (no fixed abode) the social services authority where he present himself should normally accept responsibility’.
- In 2009 Mr N was homeless, living on the streets of north London. He was arrested for assault and sent to prison. In June 2009 Mr N moved from prison to a hospital psychiatric intensive care unit under section 37 of the MHA. Documents from this time noted Mr N had ‘no fixed abode’. The last GP he had been registered with was in Leyton, in the London Borough of Waltham Forest.
- Toward the end of October 2009 the hospital discharged Mr N from section 37. It did this so Mr N could be remanded in custody from the Inner London Crown Court, in relation to his alleged involvement in further crimes. Mr N left hospital and went to court where the case was quickly dismissed. Mr N was free to leave. He was street homeless again.
- Mr N went to the GP he had last been registered with (in Leyton). A short time later Mr N moved into general needs housing in Walthamstow (in the London Borough of Waltham Forest). His GP referred Mr N to mental health services. Mr N began getting support from community mental health services in Waltham Forest in November 2009.
- In 2014 Mr N was still in Walthamstow, and was still entitled to section 117 aftercare. In September 2014 a psychiatrist in Waltham Forest noted Mr N ‘Not yet discharged from Section 117. I have asked our clinical lead…to look into this and how he can be discharged’.
- At the start of 2015 Mr N moved from Walthamstow to Islington. The Waltham Forest mental health service referred Mr N to the Trust’s mental health service toward the end of January 2015. It noted Mr N was subject to section 117 aftercare.
- The North Islington Rehabilitation and Recovery Team (NIRRT) at the Trust accepted responsibility for Mr N’s care in early 2015. He remained under their care for the next couple of years. The NIRRT is a service for people diagnosed with a psychotic disorder.
- In April 2017 a psychiatrist from the NIRRT reviewed Mr N’s case. They noted Mr N had an episode of psychosis in the past but, since being under the NIRRT, had mainly struggled with Post Traumatic Stress Disorder (PTSD) symptoms. The psychiatrist said Mr N may be better cared for by the Complex Depression, Anxiety and Trauma Team (CDAT).
- The psychiatrist referred Mr N to CDAT which placed him on its waiting list. In November 2017 CDAT invited Mr N to see a psychologist for an assessment. Mr N still did not want to be transferred to CDAT and wanted to stay with the NIRRT.
- Shortly after the appointment with a NIRRT psychiatrist in April 2017, Mr N (and his sister) complained to the Trust about the decision to transfer his care to CDAT. The Trust sent a written response at the end of October 2017. It said the decision was clinically appropriate.
- Mr N remained unhappy. He met with the NIRRT Service Manager and Dr R at the end of January 2018. At this meeting the Trust agreed Mr N could stay with the NIRRT, to receive support from its Step Down Group. Dr R also planned to review Mr N in three months’ time. However, Mr N continued to have concerns about the support on offer.
- Mr N met Dr R again at the end of March 2018. The NIRRT concluded Mr N’s relationship with it had broken down and could not be repaired. Dr R discharged Mr N to the care of his GP, although the team continued to plan for Mr N to work with CDAT.
- In May 2018 the Trust sent a final written complaint response to Mr N’s complaint. It found it had acted reasonably and made appropriate clinical decisions.
- In June 2018 CDAT sent another invitation to Mr N for a psychology assessment.
- Mr N tried to kill himself in the middle of August 2018. He went to A&E and was seen by the Psychiatric Liaison Team. They felt he would benefit from mental health support in the community.
Trust complaints process
- In brief terms, during the complaints process the Trust concluded:
- It knew Mr N was under section 117 aftercare when Waltham Forest referred to him to its service in 2015
- It assigned his case to the NIRRT in 2015 as it understood Mr N suffered from psychosis
- Over time the clinical picture changed and clinicians in the team no longer considered Mr N suffered from psychosis. Instead, they felt his issues were trauma-related and that he had PTSD
- The NIRRT is not commissioned to support people with PTSD, whereas CDAT is
- Based on this new understanding of Mr N’s needs, and in keeping with the roles of the NIRRT and CDAT, it made a clinical decision to transfer Mr N’s care to CDAT and planned to support him through the transition process
- It understood Mr N viewed this decision as an abandonment, found it very distressing and did not want to move
- It offered to let Mr N stay with the NIRRT using a different part of the service
- Mr N did not trust staff in the NIRRT
- The professionals considered the breakdown in trust was irreversible and, as such, there was no longer any clinical benefit to Mr N remaining with the team. Because of this, it discharged him back to his GP
- Having reflected on these events it remains satisfied the clinical decisions were appropriate and reasonable
- It accepts that communication could have been better. In particular, it feels Mr N was under the impression section 117 entitled him to the same, continuing service from the same team for life. The Trust said it did not properly explain that section 117 aftercare stays under review and may end.
Eligibility for section 117 aftercare and responsibility for this
- When Mr N left hospital in October 2009 he became entitled to section 117 aftercare. He was homeless before and after his detention in hospital. He had last been registered with a GP in the London Borough of Waltham Forest before his detention, and he returned to them after he left hospital. Mr N also settled in the London Borough of Waltham Forest after he left hospital.
- Therefore, based on the guidance referenced in paragraphs 17 to 26, the London Borough of Waltham Forest and Waltham Forest CCG had the responsibility to provide, or arrange, Mr N’s section 117 aftercare. This responsibility stayed with these organisations when Mr N moved to the London Borough of Islington.
- The Trust’s complaint response is correct that entitlement to section 117 can come to an end. However, I have not seen persuasive evidence to show that the London Borough or Waltham Forest and Waltham Forest CCG have decided that Mr N no longer needs section 117 aftercare, and have discharged him from it. Therefore, they both still have a duty to provide any aftercare Mr N needs.
- This leads to the question of what care Mr N needs, and what has been offered.
The decision to discharge Mr N back to his GP in March 2018
- As noted above, in paragraph 12, section 117 of the MHA does not define what aftercare services are. It is for professionals to determine what services should be offered. Therefore, decisions about what care and treatment a person needs rest on clinical judgement.
- As noted in paragraph 13, people do not have to accept what is offered to them. However, being entitled to section 117 aftercare does not give a person a right to a service that is clinically inappropriate or unnecessary.
- The Trust’s decision to refer Mr N to CDAT rested on its understanding of his needs and symptoms, which professionals had been built up over time. Professionals felt Mr N’s problems would be better treated by a more relevant specialist team. The Trust was entitled to make this clinical decision and there is evidence of an understandable clinical rationale behind it. Therefore, I find no fault in the way the Trust made this decision.
- When Mr N made it clear he did not want to move teams the Trust offered an alternative. This was appropriate. There is evidence in the records to support the Trust’s conclusion that Mr N’s relationship with NIRRT then broke down. In this situation it was clinically reasonable to refer Mr N back to his GP. It was also appropriate that the Trust kept the offer of a referral to CDAT open.
- In summary, I have not found fault in The Trust’s decision to discharge Mr N back to his GP. It had offered a service it considered was clinically appropriate for Mr N’s needs and it there is evidence to support its view that NIRRT’s relationship with him had broken down.
- It would be open to Mr N’s GP to refer him back to mental health services. If this were to happen mental health professionals would need to take account of Mr N’s continuing entitlement to section 117 aftercare. This will remain in place until an assessment determines it is no longer necessary.
- I have completed this investigation on the basis that there was no fault.
- Entitlement to section 117 does not give people the right to choose what service they will receive. Professionals are entitled to make clinical decisions about Mr N’s mental health needs and about what services would best meet them. It offered Mr N a service and there is evidence of appropriate clinical decision making in its actions.
- While Mr N has been discharged from secondary mental health services he remains entitled to section 117 aftercare. The London Borough of Waltham Forest and Waltham Forest CCG are responsible for providing or arranging this until they jointly decide Mr N no longer requires it.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman