Summary: Miss A complains about the actions of the Rotherham Doncaster and South Humber NHS Foundation Trust and Essex County Council in relation to her mental health. We have decided that the joint issues of s.117 of the Mental Health Act are outside our time limit and we will not investigate them.

The complaint

1. Miss A complains about the actions of the Rotherham Doncaster and South Humber NHS Foundation Trust’s (the Trust) Intensive Communities Therapies (ICT) team and Essex County Council (the Council) in relation to her mental health. Specifically, she complains that they have failed to provide the s117 aftercare provisions to which she is entitled.
2. As a result, Miss A says she has been unable to access proper support and this has impacted on her mental health and quality of life. She also says the Trust’s actions impacted on court proceedings and led to her receiving a custodial sentence.
3. Miss A would like the Trust to acknowledge its mistakes and apologise. She would like a clear diagnosis, for factually inaccurate records to be corrected and proper support and treatment put in place as part of her s117 aftercare provision.
4. We referred the case back to Miss A’s previous council, Essex County Council, to get further information about whether her s.117 was transferred over to Doncaster when she moved there in 2012. Unfortunately, the Council is not aware if this transfer happened and does not have documentation which shows whether the s.117 has remained in place.

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The Ombudsmen’s role and powers

5. 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, as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

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How I considered this complaint

7. To assess this complaint I considered evidence from the Council, the Trust and Miss A. I considered Miss A’s comments on my draft decision before making my final decision.

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What I found

8. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/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 s.117 cannot be charged for. This is known as section 117 aftercare. S.117 aftercare services continue until such time as the NHS body and social services authority both decide a person no longer requires any aftercare services.
9. I have looked at whether the s.117 issues occurred outside our 12 month limit and if so whether we should exercise our discretion to investigate them.
10. Miss A complains that when she moved from Essex to Doncaster in 2012, her s.117 did not follow with her and so she has not received the aftercare she required. She has said this is still the case as she is not receiving s.117 aftercare despite being eligible for it.
11. There is evidence that Miss A was aware of s.117 eligibility issues by early 2013. This is supported by the fact Miss A asserts that she has never received adequate mental health support or s.117 aftercare since moving to Doncaster, and therefore must have been aware of these issues in 2013. If this is the case, it would have been reasonable for Miss A to have raised her concerns at an earlier date than 2015 (when she first complained to the Trust), three years after she moved to the area. I have not seen evidence that in this period of 2013 and 2014 Miss A was too unwell to make a complaint.
12. Miss A is of the view that she has tried to raise her complaint with PHSO several times but kept having it declined for different reasons, such as being premature or asking her to be more specific.
13. She notes that the Trust has also taken a long time to deal with her complaint which is accurate. The Trust appears to have taken on average around four months to respond to her each time. In addition, between February to May 2015, Miss A was caring for her terminally ill father until his death. She also says she struggled to access an advocate while court proceedings were going on, between September 2015 to February 2016, and was also briefly in prison. Furthermore, there was an informal inpatient stay from April to June 2018.
14. Miss A also notes that her mental health has contributed to delays and she has frequently been detained by the police under s136 of the Mental Health Act over the last few years from mid-2015.
15. Miss A was aware of the s.117 issues in April 2013. She was signposted by the Trust to PHSO as early as May 2016, so could have escalated her complaint at that point, although the Trust had also encouraged her to return to it for further local resolution, which she did and this was not unreasonable.
16. However, Miss A could have reasonably come to the Ombudsmen in October 2016 after receiving the Trust’s further response to her complaint. Miss A has been involved with the advocate organisation, Voiceability, since at least 2014, therefore has known about and had access to support for submitting complaints. Voiceability has been involved a several stages of Miss A’s complaints, therefore it is clear she was regularly accessing their service for support progressing her complaints. She only mentions having difficulty accessing her advocate for three months during October 2015 to January 2016, while the court proceedings were ongoing.
17. Bearing this in mind Miss A was aware of the complaint in 2013, and had access to advocacy in 2014 but did not pursue the complaint locally until 2015. Her first approach to an Ombudsman was then in 2017. Even taking into account her periods of ill health, looking after her father and the delays in responses from the Trust, there is still a significant period at the start of this complaint of over two years as well as further delays from October 2016 in bringing the complaint to the Ombudsmen. Miss A has not given sufficient reasons why she did not pursue this matter several years ago.
18. In addition, the Council has apparently lost a significant number of papers, which would impact on our ability to investigate Miss A’s existing s.117 entitlement.
19. The Council, in its latest response, has not been able to confirm if Miss A was still entitled to s.117 aftercare when she moved to Doncaster. In addition, the Trust has not been able to confirm this either and speculates that Miss A may have been discharged from her s.117 in 2012. These factors would present obstacles to us carrying out an investigation that can come to a sound decision.
20. I have considered that the claimed fault and injustice (lack of access to s.117 aftercare) is ongoing, and potentially continues to impact on Miss A. However, there is no realistic prospect of finding if Miss A’s s.117 should have passed over or whether it was discharged before she moved to Doncaster. The Council has confirmed it no longer has any of the relevant papers and while this lack of paperwork is concerning, it is not a reason on its own to consider Miss A’s complaint further. In addition, eight years later, the injustice to Miss A would be extremely difficult to quantify and to link to any potential fault.

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Final decision

21. For the reasons I have outlined we will not investigate Miss A’s complaint about s.117 aftercare as it is late and there is not sufficient good reason for the lateness of the complaint.

Investigator’s final decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman