Barnet, Enfield & Haringey Mental Health NHS Trust (18 011 391b)

Category : Health > Mental health services

Decision : Not upheld

Decision date : 03 Jun 2019

The Ombudsman's final decision:

Summary: Mr B complained his late mother Mrs B wrongly had to pay for her care home fees after she was discharged from hospital in August 2017. He said the Council and CCG should have paid all her care fees under section 117 of the Mental Health Act. The Council and CCG have now agreed to pay the care fees. They have also agreed to review and improve their processes in this area. The Ombudsmen have therefore completed their investigation.

The complaint

  1. Mr B complains that after his mother Mrs B was discharged from section 3 of the Mental Health Act 1983 in July 2017, the family did not get any information about her entitlement to free section 117 aftercare support under the Mental Health Act 1983. Mr B said he had to arrange for his mother to go into a care home at short notice in August 2017, when she was discharged from the acute hospital (North Middlesex). Mr B then paid for his mother’s care home fees privately from her funds until her death in March 2018. Mr B believes his mother’s discharge to a care home should have been arranged and funded under section 117 aftercare. He said the Council, CCG, Mental Health Trust and Acute Trust should have been appropriately involved in the discharge planning.
  2. Mr B complained to us that the Council and CCG offered to pay for 50% of the care home fees, but be believes they should reimburse the full costs because of his mother’s entitlement to section 117 aftercare. Mr B does not accept the Council and CCG’s position that although his mother was eligible for s117 aftercare, this did not cover her residential placement as this need did not arise from her mental health needs. Mr B said his mother’s physical frailty developed as a result of her mental health difficulties, and that the need for the care home placement was linked to her mental health and should have been provided under section 117.
  3. As an outcome to his complaint Mr B wants a full reimbursement of the cost of his mother’s care home fees.

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The Ombudsmen’s role and powers

  1. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team acting on behalf of both Ombudsmen has considered these complaints. (Local Government Act 1974, section 33ZA,as amended, 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), as amended). 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.
  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. As part of my investigation of this complaint I have considered:
    • information Mr B provided in writing and verbally
    • written information from the Council, CCG, Mental Health Trust and Acute Trust
    • relevant legislation and guidance.
  2. All parties were given the opportunity to comment on a draft decision about the complaint, and their comments were taken into account.

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What I found

  1. Under section 2 of the Mental Health Act 1983, a person can be detained for assessment of their mental health and to receive any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
  2. Section 3 of the Mental Health Act 1983 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.
  3. Before the person is discharged from detention under section 3 of the Mental Health Act, 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 mental health aftercare they will need. This is known as section 117 aftercare. Section 117 imposes a duty on health and social services to meet the health/social care needs arising from or related to the persons mental disorder.

What happened

  1. Mrs B was admitted to hospital (the Mental Health Trust) under section 2 of the Mental Health Act on 19 May 2017, with psychotic depression. She later transferred onto section 3 of the Mental Health Act and remained in hospital at the Mental Health Trust.
  2. On 9 June, due to a deterioration in her physical health, Mrs B was moved to a different hospital, part of the Acute Trust. She remained under section 3 of the Mental Health Act at that time and she also received treatment for her physical health needs. On 3 July staff rescinded Mrs B’s section 3 detention. The consultant liaison psychiatrist felt that physical health issues were the primary concern, not mental illness, and that detention under section 3 was no longer needed.
  3. Mrs B spent approximately ten weeks at the Acute Trust. From 17 July onwards, staff had discussions about how Mrs B’s needs should be met after discharge from hospital. The options discussed were a care package at home including mental health support, transfer to a residential care home, or re-admission to a mental health unit. Staff decided the most appropriate option was a residential care home with mental health input from the Mental Health Trust’s Community Mental Health Team. Staff asked Mrs B’s family to identify a suitable care home for her to be discharged to.
  4. Mrs B’s financial means were over the threshold of £23,250 for financial support with care fees from the Council, so Mr B paid for her residential care from her funds on a private basis. Her weekly care fees were £965.
  5. Mrs B was discharged to the residential care home on 19 August 2017. She stayed there until her death in March 2018.

The complaint

  1. Mr B said that after his mother had been discharged from hospital, in September / October 2017 he found out her care fees should possibly have been paid for under section 117 of the Mental Health Act, as she had been detained under section 3. Mr B said he raised this with his mother’s social worker and she said in November 2017 that a panel had agreed the Council and CCG would pay the fees under section 117 and that this would be backdated to the start of the residential placement. When this did not happen, Mr B pursued this with the Council and CCG and met with them in April 2018. As the situation was still not resolved Mr B made a formal complaint in July 2018.
  2. The Council and CCG provided a joint complaint response on 28 August 2018. They apologised that the hospital or Mental Health Team had not given Mr B any clear guidance in relation to section 117 of the Mental Health Act, when discussing his mother’s discharge arrangements. However, they said that although Mrs B was entitled to section 117 aftercare, they did not consider this applied to her residential care home fees because ‘the need for the placement did not arise because of her mental health needs. She required the placement under the Care Act due to her social care needs, with her mental health needs being reviewed and met by psychiatric services.’
  3. The Council and CCG said the complaint was partially upheld and they offered to reimburse 50% of the cost of Mrs B’s residential care fees, totalling £13,050. The Council re-stated its position in a further letter dated 27 December 2018. Mr B declined the offer as he felt all the care fees should be reimbursed, and he complained to the Ombudsmen.

Consideration by the Ombudsmen

  1. The Ombudsmen decided to investigate Mr B’s complaint. We wrote to the Council, CCG, Mental Health Trust and Acute Trust on 19 February 2019 setting out our proposal to investigate and seeking their comments.
  2. On 6 April 2019 the Council and CCG sent a joint response to our proposal to investigate. They said they now proposed to reimburse the full cost of Mrs B’s residential care fees. This was because further examination of Mrs B’s records had highlighted ‘there was a multi-disciplinary team discussion at the ward where future accommodation options were recommended including residential care that would meet her ongoing mental health needs’. The Council and CCG acknowledged there had been a lack of clear information between the multi‑disciplinary professionals and to Mrs B’s family. They offered apologies to Mr B and proposed a full reimbursement of Mrs B’s care fees in the sum of £29,155.79.
  3. In addition, the Council and CCG outlined remedial action that will be taken as a result of the issues raised by Mr B’s complaint. They said the Council, CCG, Acute Trust and Mental Health Trust would review the processes and procedures of planning and future funding arrangements after older adults are discharged from section 3 of the Mental Health Act to section 117 aftercare. They said this review will include communication and information given to families and advocates at the time of discharge.

Agreed action

  1. Within four weeks of our final decision, the Council and CCG will reimburse Mr B the sum of £29,155.79 covering the costs of Mrs B’s residential care fees.
  2. Within three months of our final decision, the Council and CCG will write to Mr B and the Ombudsmen setting out what action they have taken to ensure the processes and procedures for planning and future funding for patients moving from section 3 of the Mental Health Act to section 117 aftercare have been improved. The Council and CCG should involve any other relevant organisations, such as the Mental Health Trust and the Acute Trust, in developing the action plan.

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Decision

  1. I have completed my investigation as I am satisfied the actions to be taken by the Council and CCG appropriately remedy the injustice caused to Mr B.

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Investigator's decision on behalf of the Ombudsman

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