The Ombudsman's final decision:
Summary: We found fault with the care and support provided by the Council, Trust and CCG to Miss X, a vulnerable young woman with complex needs. We found this placed Miss X at significant risk in the community and caused her and her family avoidable distress. These organisations have agreed to apologise to Miss X and pay a financial remedy in recognition of the impact of this fault on her.
- The complainant, who I will call Mr X, is complaining about the care and support provided to his daughter, Miss X, by Royal Borough of Kensington and Chelsea (the Council), Central and North West London NHS Foundation Trust (the Trust) and West London Clinical Commissioning Group (the CCG).
- Mr X complains that Miss X’s discharge from hospital in February 2018 was unsafe. He says the Trust discharged Miss X to unsuitable accommodation without a section 117 aftercare plan and with inadequate community support. Mr X says this meant Miss X was subjected to frequent hospital readmissions and discharges over the following year. Mr X says this placed Miss X’s life in danger and caused her and her family unnecessary distress and trauma.
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), as amended).
- If it has, they may suggest a remedy. Our recommendations might include asking the organisations to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisations take action to stop the same mistakes happening again.
- 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
- In making my final decision, I considered information provided by Mr X and discussed the complaint with him. I also considered information and documentation provided by the Council and Trust. This included copies of the social care, mental health and housing records for Miss X. I also obtained advice from an independent consultant psychiatrist with relevant knowledge and experience.
- Furthermore, I considered comments on my draft decision from Mr X and the organisations he is complaining about.
What I found
Relevant legislation and guidance
Mental Health Act 1983 – Detention
- The Mental Health Act 1983 (the Mental Health Act) says that, when someone has a mental disorder and is putting their safety, or that of someone else at risk, they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
- Section 2 of the Mental Health Act 1983 allows 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.
- 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. At the end of this period, the detention can be renewed for another six months following a review.
- Section 136 of the Mental Health Act is an emergency power. It allows the police to remove a mentally disordered person from a public place to a place of safety if a police officer considers it necessary in the interests of that person or for the protection of others.
Mental Health Act 1983 – Care Programme Approach
- The Care Programme Approach (CPA) is a system for coordinating the care of people with mental disorders. It requires the allocation of a care coordinator.
- The Mental Health Act Code of Practice 2015 (the Code of Practice) is the statutory guidance that accompanies the Mental Health Act.
- Section 34.3 of the Code of Practice explains that a central part of the CPA is the CPA care plan. This should include “a treatment plan which details medical, nursing, psychological and other therapeutic support for the purpose of meeting individual needs promoting recovery and/or preventing deterioration.” The plan should detail how the patient will be supported to meet their personal goals and set out any social care support needs and how these will be met.
Mental Health Act 1983 – Section 117
- In 2017, Miss X was detained in hospital for treatment under Section 3 of the Mental Health Act. When she was discharged, Miss X became eligible for free aftercare services under Section 117 of the Mental Health Act. These are care and support services intended to meet any needs related to the person’s mental disorder and prevent the need for them to be readmitted to hospital in future.
- Responsibility for providing, or arranging for the provision of, Section 117 aftercare services rests with the local authority and local clinical commissioning group. In Miss X’s case, these services were provided by the Trust, on behalf of the Council and CCG.
- The Code of Practice emphasises the importance of effective aftercare planning using the CPA.
- Section 33.13 of the Code of Practice say that “[b]efore deciding to discharge or grant more than very short-term leave of absence to a patient…the responsible clinician should ensure that the patient’s needs for after-care have been fully addressed, discussed with the patient (and their carers, where appropriate) and addressed in their care plan.”
- Section 33.14 of the Code of Practice says that “[a]fter-care for all patients admitted to hospital for treatment for mental disorder should be planned within the framework of the care programme approach…But because of the specific statutory obligation it is important that all patients who are entitled to after-care under Section 117 are identified and that records are kept of what is provided to them under that section.”
Care Act 2014
- Sections 9 and 10 of the Care Act 2014 (the Care Act) say councils must carry out an assessment of any adult who appears to need care and support. This assessment must look at the adult’s needs and how these needs affect their wellbeing and the outcomes they want to achieve. It must involve the individual and, where appropriate, that person’s carer or any other person they want to be involved.
- Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high-quality joint assessment.
Housing Act 1996
- The Housing Act 1996 (the Housing Act) is the legislation that set out local authorities’ duties in respect of homelessness.
- In 2006, the government produced statutory guidance for local authorities entitled the Homelessness Code of Guidance for Local Authorities (the Code of Guidance).
- Section 6.5 of the Code of Guidance (as it stood until April 2018) says that, if a housing authority has reason to believe an applicant may be eligible for assistance, homeless and have a priority need, it has an immediate duty under Section 188 of the Housing Act to ensure suitable accommodation is available to that person. This duty remains in place until the housing authority has completed its inquiries and decided what homelessness duty, if any, it owes the applicant.
- Section 17.5 of the Code says local authorities “will need to consider carefully the suitability of accommodation for applicants whose household has particular medical and/or physical health needs.”
- Section 17.6 of the Code says “[a]ccount will be taken of any social considerations relating to the applicant and his or her household that might affect the suitability of accommodation.”
- Section 193(2) of the Housing Act says that if, on completing its inquiries, a local authority is satisfied the applicant is unintentionally homeless, eligible for assistance and has a priority need for accommodation, it must “secure that accommodation is available for occupation by the applicant”. This is often known as ‘the main homelessness duty’.
- Miss X has complex mental health needs and a history of substance misuse. Between 2013 and 2017, Miss X was living in Wales in a house owned by her family. She was under the care of local mental health services.
- In October 2017, Miss X decided to move to London. Mr X helped her find a room to rent.
- In November 2017, Miss X suffered a psychotic crisis and attempted suicide. The police used the powers given them under Section 136 of the Mental Health Act to take Miss X to a place of safety. She was subsequently admitted to hospital for assessment under Section 2.
- Clinicians noted Miss X had stopped taking her antipsychotic medication. She was experiencing auditory hallucinations and persecutory delusions. In addition, she was low in mood and reported having harmed herself on several recent occasions.
- Miss X failed to return from a short period of voluntary leave in December 2017. Trust staff found Miss X jumping in front of traffic and returned her to hospital. Following a further assessment, Miss X was detained under Section 3.
- In January 2018, the team supporting Miss X discussed possible accommodation options for her. The team supporting Miss X felt she may benefit from supported accommodation. However, there was a six-month waiting list for this.
- Miss X applied to the Council’s housing team for assistance. The Council identified interim accommodation for Miss X to move to on discharge while it assessed her eligibility for ongoing housing support. This was a hotel in a neighbouring borough.
- In February 2018, Miss X was discharged from hospital. She moved into the interim accommodation.
- Miss X was supported by the Trust’s Home Treatment Team (HTT) and was referred to a Community Mental Health Team (CMHT) in the same borough as her temporary accommodation (also part of the Trust).
- On 28 February 2018, Miss X was readmitted to hospital and detained under Section 2 of the Mental Health Act.
- Miss X was discharged from hospital again on 26 March 2018. The Trust appointed a social worker from the local CMHT to act as her care coordinator. Miss X returned to her temporary accommodation.
- Miss X continued to experienced crisis episodes over the course of the year, necessitating several attendances at, and admissions to, hospital.
- In July 2018, the Council declined Miss X’s housing application on the basis that she did not have a local connection with the area. Miss X appealed this decision the following month.
- In October 2018, the Council upheld Miss X’s appeal and accepted the main homelessness duty. It placed Miss X on the housing register.
- Miss X was admitted to hospital again informally in December 2018. She was later detained under Section 3 of the Mental Health Act in January 2019.
- On 15 April 2019, Miss X transferred to a specialist personality disorder unit at a private hospital. Miss X remained in the hospital until June 2019, when she was discharged to temporary accommodation arranged by the Council.
What I found
Discharge – February 2018
- Mr X complained that the Trust discharged Miss X from hospital in February 2018 without proper support and without a robust Section 117 care plan.
- The Trust said it did not maintain a specific Section 117 aftercare plan for Miss X as this was incorporated into her ongoing care plan, a copy of which had been shared and with which she agreed. The Trust said Miss X was discharged with support from the HTT, a referral to substance misuse services and follow-up care from the CMHT.
- Miss X moved to London in October 2017 and was living in a privately rented flat. However, she appears to have experienced a mental health crisis the following month. This led to her being detained under Section 2 of the Mental Health Act.
- In December, Miss X did not return from a short period of voluntary leave. Staff found her nearby, jumping in and out of traffic, and returned her to the hospital. Following a further assessment, Miss X was detained under Section 3 of the Mental Health Act.
- On 2 February 2018, a hospital clinician discussed Miss X’s care with a psychiatrist from the mental health team in Wales which had previously provided her care. The clinician noted the view of the mental health team in Wales that “[Miss X] is not able to live independently and deteriorates [rapidly] due to an inability to cope and related drug use in the community.”
- On 4 February, Miss X reported to staff that she had taken cocaine during a period of leave and had also taken an overdose of Clozapine (an antipsychotic medication).
- Miss X attended a multidisciplinary team review meeting on 6 February to discuss her care. The clinicians present discussed with Miss X whether she would be able to live independently in the community. Miss X acknowledged she would need support to take her medication and help addressing her substance misuse problems. In addition, Miss X said she would like to go to college and find ways to keep herself busy.
- On 7 February, Miss X’s consultant psychiatrist requested an assessment by an Occupational Therapist (OT) review to help the team reach a view on whether Miss X would be able to live independently. The consultant psychiatrist noted Miss X “has a diagnosis of Schizoaffective disorder and [Emotionally Unstable Personality Disorder – EUPD], although the psychotic illness is less evident to me she has responded well to Clozapine and Lithium (a mood stabilising medication).”
- An OT visited Miss X on 12 February to complete an initial assessment. She noted Miss X appeared largely independent but would need support with managing her money and prompting to keep accommodation clean. The OT noted she would need to complete her assessment. She also noted she would explore the possibility of referring Miss X to the local substance misuse service.
- Miss X’s consultant saw her on the ward on 14 February and rescinded the section. Miss X remained on the ward informally.
- The consultant reviewed Miss X on 15 February. She noted “[i]t is evident she has a diagnosis of EUPD, it is not clear whether she has an additional diagnosis of Schizoaffective disorder but she has benefited from Clozapine and lithium since her time with us and in the past.” The consultant noted concerns about Miss X’s ability to live independently. However, she balanced this against the fact that there was likely to be a wait of several months for supported living accommodation. She concluded it would not be appropriate for Miss X to remain in hospital during this time and noted “it makes sense to try temporary accommodation – link her in with local mental health support and housing support.”
- The consultant discussed this with Mr X later that day. Mr X said he felt Miss X should remain in hospital until supported accommodation could be arranged. However, the consultant explained that Miss X did not meet the threshold for detention under the Mental Health Act and refused to stay on a voluntary basis. The consultant noted “I tried to reassure him that we would be testing things out and if it doesn’t work she can come back into hospital.”
- Miss X left hospital on leave on 15 February. The HTT visited Miss X at her interim accommodation the following day. The HTT officers noted she was "relatively stable in her mental health and mood” and was not experiencing any crisis symptoms, such as paranoia, low mood or suicidal feelings. The HTT continued to visit Miss X over the following days, noting that her condition appeared stable, though she was sometimes low in mood.
- Miss X attended a review meeting with her consultant psychiatrist on 22 February. The consultant discharged Miss X with continued support from the HTT until she had an allocated a care coordinator. The consultant also noted Miss X would need to be referred to the dual diagnosis team to explore her substance misuse problems in the context of her mental health.
- The HTT visited Miss X again on 23 February. They noted Miss X “reports feeling low in mood throughout most part of the week…She expressed that she has tried to help herself but that nothing seems to work”.
- On 26 February, Mr X contacted the HTT to express concerns about Miss X’s welfare. He reported that “she needs to be readmitted because she has spent 2 weeks of benefits money in one go and is now broke. He feels the discharge from hospital will fail and is worried about [Miss X] escalating her behaviour should she not feel psychologically contained.”
- A further HTT visit that day found Miss X did not feel depressed or and was not displaying psychotic symptoms. However, Miss X said she needed support with budgeting. The HTT noted that Miss X “could cope well in the community with some basic structure”. The HTT also felt Miss X would benefit from support from the dual diagnosis service.
- At a visit on 28 February, the HTT found Miss X to be “tearful, low in mood and expressing suicidal ideations…She reported interrupted sleeping pattern, auditory…and visual hallucinations…She has insight into her condition however she feels that she can’t be helped any longer and her life has to end at some point.” The HTT concluded Miss X “presents with imminent risk to self…Therefore [Miss X] requires a compulsory admission to hospital.”
- Miss X was admitted to hospital later that day under Section 2, following a Mental Health Act Assessment.
- The Code of Practice says the CPA should be used for individuals who are at high risk of suffering a deterioration in their mental condition and require ongoing support. This includes most people who are entitled to Section 117 aftercare. The purpose of this structured support is to prevent deterioration in the person’s mental condition and, accordingly, reduce the risk of readmission to hospital in future.
- The Code of Practice emphasises the importance of effective care planning using the CPA process. This is to ensure there is a comprehensive record of a patient’s health and social care needs and how these needs will be met in the community. The CPA also requires the identification of a named care coordinator.
- I was unable to locate a CPA or Section 117 care plan in the Trust’s records relating to Miss X’s discharge from hospital on 22 February 2018. Similarly, I found no evidence the Trust convened a formal CPA or Section 117 discharge planning meeting prior to discharging Miss X. This meant there was no robust record of Miss X’s needs at the time of her discharge. These were significant omissions given the complexity of her care needs.
- The information provided by the mental health service in Wales that previously cared for Miss X raised serious concerns about her ability to live independently in the community.
- The lack of a CPA or Section 117 care plan contributed to confusion over the following months about her care and accommodation needs.
- The notes of a consultant review on 15 February record that “[w]e have concerns about her living independently and her father and team in Wales have reiterated this…The wait for supported accommodation could take several months and as she is now well it does not seem feasible to keep her in hospital for this time.” Miss X also felt she needed supported accommodation.
- The clinical records show an OT did visit Miss X on 12 February to assess her ability to live in the community. However, she had not completed her assessment by the time the Trust discharged Miss X on 22 February. I found no further detailed consideration of Miss X’s accommodation needs in the care records for this admission.
- However, following Miss X’s readmission later that month, the notes of a ward round (on 2 March) record that “we have assessed that she does not need supported accommodation”. This conclusion does not appear to be supported by the clinical records for either admission.
- The lack of robust care planning also appears to have caused confusion about Miss X’s entitlement to Section 117 aftercare. Indeed, I identified entries in the Trust’s records from September 2018 in which it was erroneously recorded that Miss X had not been detained under Section 3 and so was not entitled to Section 117 aftercare.
- Furthermore, it is clear from the clinical records that Miss X did not have a named care coordinator at the time of discharge, as required by the Code of Practice.
- The care records also suggest there was also considerable confusion surrounding Miss X’s diagnosis prior to her discharge. This had been a matter of dispute for some time, with diagnoses of both Schizoaffective Disorder and EUPD recorded by the clinicians involved in Miss X’s care.
- In its response to my enquiries, the Trust explained the consultant psychiatrist felt Miss X’s symptoms were consistent with a diagnosis of EUPD. However, the consultant psychiatrist also noted in the care records that “[i]t is not clear whether she has an additional diagnosis of Schizoaffective disorder”. I found no evidence in the care records to suggest the treating clinicians attempted to clarify Miss X’s diagnosis (or diagnoses) before her discharge on 22 February.
- This had an impact on Miss X’s subsequent care in the community. For example, Miss X was twice referred to the local personality disorder service only for the referral to be declined on the basis that she had a primary diagnosis of Schizoaffective Disorder. Conversely, during Miss X’s various hospital admissions, clinicians noted protracted time as an inpatient would be ineffective due to her EUPD diagnosis.
- In my view, the evidence shows the Trust failed to manage Miss X’s discharge from hospital in February 2018 in accordance with the requirements set out in the Code of Practice. This was fault by the Trust. This fault is shared by the Council and CCG as the agencies with the statutory duty to provide, or arrange for the provision of, Section 117 aftercare services for Miss X.
- I cannot say with any certainty whether Miss X’s readmission to hospital on 28 February would have been prevented even if her discharge the previous week had been handled appropriately. Nevertheless, I consider the failure to properly plan her discharge placed her at greater risk and made a readmission more likely.
Discharge – March 2018
- Mr X complained that the lack of support available to Miss X meant she endured repeated hospital admissions and discharges over the following year. Mr X said he eventually had to make an application for Miss X to be detained under Section 3 of the Mental Health Act to allow for a period of treatment and stabilisation.
- In its response to my enquiries, the Trust noted Miss X’s inability to control her emotions, impulsive behaviour and thoughts of self-harm. It said that these symptoms, complicated by Miss X’s substance misuse, were consistent with an EUPD diagnosis. The Trust said the decision to treat Miss X’s emotional instability and substance misuse was appropriate, therefore.
- Following her readmission to hospital, Miss X was seen during a ward round on 2 March 2018. The reviewing consultant psychiatrist noted Miss X was more settled on that ward. The consultant explained there was no clinical reason for Miss X to remain in hospital and that the plan was to discharge her with support in the community. The notes of this ward round show Miss X was concerned that she did not have support at her interim accommodation. The consultant explained that “as we have assessed [Miss X] does not need supported accommodation, that will not be offered to her, even if she were to stay in hospital.”
- The Trust convened a multidisciplinary meeting on 8 March. The consultant psychiatrist noted that “[Miss X] and her father have told us that [she] was assessed and recommended for supported accommodation – however, this is not the case”. The meeting heard that Miss X did not lack the skills to live independently but may be suitable for referral to the local personality disorder service.
- A member of the HTT who was present queried whether Miss X had successfully lived on her own in the past. He also said he thought it unlikely the personality disorder service would accept a referral for Miss X given her Schizoaffective Disorder diagnosis. The consultant noted that “an OT assessment would probably indicate that [Miss X] has the skills to live alone, however she probably does not have the emotional maturity to do this. Unfortunately this probably would not be accepted by supported accommodation in [the Council’s area].”
- These entries in the clinical records represent further confusion around Miss X’s care and accommodation needs. I note it was not until May 2018 (three months after her original admission) that Miss X’s care coordinator referred her for supported living accommodation.
- Following the discussion on 2 March, Miss X and Mr X attended for a discharge meeting. The notes of the meeting show Mr X remained concerned that discharge without additional support would likely result in Miss X being readmitted to hospital. However, the multidisciplinary team assured Mr X that Miss X would have an allocated care coordinator to support her. In addition, the consultant psychiatrist said she would arrange an OT assessment for Miss X.
- The OT who had carried out the initial assessment during Miss X’s previous admission completed her assessment on 12 March. She noted Miss X felt able to manage day-to-day tasks but required support with budgeting and money management.
- The following day, the ward referred Miss X to the dual diagnosis team for support with her substance misuse.
- At a ward round on 15 March, Miss X’s consultant psychiatrist discharged her from her section. However, Miss X agreed to remain in hospital on a voluntary basis until her care plan could be finalised.
- Miss X’s care coordinator met her on the ward on 21 March. The notes of this visit show the care coordinator agreed to explore the possibility of a supported living placement for Miss X. The care coordinator also agreed to look at available events at the Trust’s Recovery and Wellbeing College (a service providing educational courses and workshops for Trust service users).
- The Trust discharged Miss X back to her interim accommodation on 26 March, with a recorded diagnosis of “Schizoaffective disorder/PD”.
- In the case notes for her assessment on 12 March, the OT recorded that Miss X “requested a copy of her care plan; copy given and explained. Reported that she was happy with the content.” I have reviewed the records the Trust provided and was only able to identify one care plan for March 2018. This appears to be an inpatient care plan, which records only that “you will be discharged to suitable accommodation with appropriate support when you are well enough to leave hospital.”.
- This readmission represented an opportunity for the Trust to complete a comprehensive review of Miss X’s case, including her diagnosis and potential treatment and accommodation options, as well as the reasons for the failed discharge in February. I found no evidence to suggest it did so. Rather, Miss X was discharged to the same accommodation with largely the same support in place, albeit she now had an allocated care coordinator.
- In summary, the evidence I have seen suggests Miss X was discharged from hospital in March 2018 without a proper CPA or Section 117 care plan in place. This was not in keeping with the Code of Practice. This was fault by the Trust. The Council and CCG share responsibility for this fault as they had a statutory duty to ensure Miss X was receiving appropriate Section 117 aftercare.
- The clinical records show Miss X subsequently attended hospital twice in April 2018 having taken overdoses of analgesic medication. Miss X was eventually readmitted in June 2018, having taken a further overdose. This was part of a repeated cycle of hospital attendances, admissions and discharges during 2018. These were often precipitated by Miss X’s ongoing substance misuse problems.
- Once again, I am unable to say whether Miss X’s readmissions could have been prevented if the discharge and care planning had been more effective. However, in my view, the absence of effective care planning placed Miss X at increased risk of harm.
Admission – June 2018
- In the Trust’s response to my enquiries, it explained that Miss X’s EUPD diagnosis meant it was appropriate to focus on addressing her emotional instability. The Trust also highlighted the importance of addressing Miss X’s substance misuse problems.
- To this end, Miss X’s care coordinator referred her both to the specialist personality disorder service and the dual diagnosis team.
- However, on 17 April, the specialist personality disorder service declined the referral on the basis that its treatment is not evidence-based for patients with a diagnosis of Schizoaffective Disorder.
- In May, Miss X’s care coordinator referred her to the Council’s housing team for supported living accommodation. She wrote that Miss X’s “housing situation appears to be impacting significantly on her health…she does not like the environment at [the interim accommodation] and is anxious to move from there.”
- By June, the case records suggest Miss X was not engaging meaningfully with the dual diagnosis team and continued to misuse substances.
- Miss X’s care coordinator arranged for her to attend a psychoeducational group on 10 July. However, on 25 June, Miss X was readmitted and was unable to attend the group.
- On 28 June, the Trust completed a Mental Health Act Assessment. This concluded that Miss X had capacity to agree to remain on the ward as an informal patient.
- On 30 June, a registrar reviewed Miss X and noted that she would only be allowed to leave the ward for four escorted cigarette breaks per day. The note of this review records that Miss X “agreed that if she felt unable to abide by this, duty doctor would be called and decisions about varying the plan or need for detention would need to be discussed with her.”
- Later that day, a nurse recorded that Miss X “said she wants to leave and is being kept against her will, so again the doctor was contacted to come and see her. At this point she started pushing on the door of the ward, shouting and then bursting into tears.”
- In a further note on 2 July, a nurse recorded that Miss X expressed her intention to harm herself and her ex-partner if allowed to leave the ward and that “staff did not allow her out of the ward for her safety and others…Staff made numerous attempts explaining to her she cannot leave the ward at present.”
- Section 14.11 of the Code of Practice says mental health professionals must always consider whether there are less restrictive alternatives to detention under the Mental Health Act. This can include admission to hospital as an informal patient.
- Section 14.16 goes on to explain that “[c]ompulsory admission should, in particular be considered where a patient’s current mental state, together with reliable evidence of past experience, indicates a strong likelihood that they will have a change of mind about informal admission, either before or after they are admitted, with a resulting risk to their health and safety or to the safety of other people.”
- The evidence above shows that, by 30 June, Miss X wanted to leave the ward. However, despite her status as an informal patient, Trust staff made clear to Miss X that she would not be allowed to leave. In my view, this amounted to a deprivation of her liberty. I found no evidence in the records to suggest the clinical team considered whether a compulsory admission would be appropriate at that stage as indicated by Section 14.16 of the Code of Practice.
- The Human Rights Act 1998, which came into force in 2000, is intended to incorporate into UK law the rights contained in the European Convention on Human Rights (ECHR). Article 5 of the ECHR sets out that everyone has the right to liberty and security of person.
- Section 26.49 of the Code of Practice states that “[r]estrictions that alone, or in combination, deprive a patient of their liberty without lawful authority will breach article 5 of the ECHR.” The evidence I have seen shows the Trust failed to have regard for Miss X’s right to liberty as set out in the ECHR and Human Rights Act. This was fault.
- This is not to say that the Trust should have discharged Miss X. Indeed, the evidence suggests it was in Miss X's best interests for her to remain in hospital at that time. Furthermore, I am unable to say what the outcome of a Mental Health Act Assessment would have been even if the Trust had completed one.
- Nevertheless, the case records show Miss X found the Trust’s decision to prevent her leaving the ward extremely distressing. This is understandable, in my view, given Miss X only agreed to admission as an informal patient.
- The Trust convened a discharge meeting for Miss X on 5 July. Mr X also attended. The notes of the meeting show Miss X was to be discharged with follow-up support from the HTT and an adjustment to her medication. Miss X returned to the temporary accommodation that day.
- However, that evening, Miss X was taken by police to a place of safety for assessment under Section 136 of the Mental Health Act. The clinical records show that Miss X was intoxicated and reported hearing voices. Miss X’s friend called the police. When the police arrived Miss X attempted to run out into traffic. A Mental Health Act Assessment resulted in Miss X being detained under Section 2.
- On 9 July. The Trust rescinded Miss X’s section and discharged her back to the temporary accommodation. The treatment plan remained identical to that recorded for her previous admission.
- Miss X was readmitted, briefly, on 11 July, to a different hospital but was too intoxicated for staff to assess her. Following an assessment the following day, she was again discharged back to her accommodation.
- On 13 July, Mr X contacted Miss X’s care coordinator to report his continued concerns about her care. The notes of this call record he “was of the view that his daughter required to be in hospital as the current support is not working…I reminded [Mr X] that HTT provided quite intense support but he felt that this was not sufficient as [Miss X] needs to be stabilised in hospital.”
- The following day, Miss X was again admitted to hospital under the care of a different Trust having taken an overdose of paracetamol. Miss X’s care coordinator spoke to the HTT and noted “my colleague relayed that it is not considered safe for [the HTT] to work with [Miss X]. Therefore, [the HTT] will suggest for [Miss X] to be admitted to hospital”.
- Miss X was transferred back to the care of the Trust as an informal patient on 17 July. She left the ward the following day and returned to her accommodation. On 19 July, the Trust discharged Miss X in her absence.
- The care records show Miss X was admitted two further times in August 2018 and again in October 2018. Again, I cannot say whether these further admissions could have been avoided. Nevertheless, the evidence shows Miss X remained at significant risk in the community.
- On 10 September, Miss X disclosed to a dual diagnosis worker that she was using drugs heavily, including crack cocaine, Valium and methadone. The dual diagnosis team explored the possibility of an inpatient drug rehabilitation programme. In her notes of a care review on 20 September, Miss X’s care coordinator recorded that it was unlikely funding would be agreed as Miss X “does not have eligibility for section 117”.
- The Trust’s response to my enquiries clarifies that the professionals supporting Miss X considered addressing her substance misuse problems to be a priority. The clinical records contain ample evidence of these problems and the continued impact of Miss X’s substance misuse on her mental health.
- However, the lack of any robust Section 117 documentation left the care coordinator with the erroneous understanding that Miss X was not entitled to aftercare. This in turn prevented Miss X from accessing suitable care and treatment.
- Miss X was admitted to hospital again in early November 2018 and detained under Section 2. By 13 November, Miss X’s condition had stabilised and she was using unescorted leave successfully. The clinical notes show the treating clinicians were planning her discharge.
- On 15 November, Mr X spoke to the care coordinator. He said he felt Miss X required a Community Treatment Order (CTO – an order allowing for supervised treatment in the community rather than in hospital) to ensure she received appropriate support. However, the care coordinator told him a CTO would not be appropriate as Miss X did not meet the threshold for detention under Section 3.
- Miss X absconded from the ward three times in early December while using her unescorted leave. On the last occasion, she refused to return to the ward and was discharged in her absence on 6 December. Miss X was noted to be staying with a friend.
- On 14 December, Miss X called Mr X to inform him that she had taken an overdose. Mr X arranged for an ambulance to transport Miss X to hospital. She reported having taken a substantial amount of cocaine as well as an overdose of prescription medication. The Trust admitted Miss X under Section 2.
- It is of note that, even at this late stage, the clinicians treating Miss X felt she would not meet the criteria for detention under Section 3. This led Mr X (as Miss X’s nearest relative) to apply for her to be detained under Section 3 against the recommendations of the clinical team.
- The subsequent Mental Health Act Assessment was completed by two independent psychiatrists. These clinicians noted Miss X was presenting with emotional dysregulation and represented a significant risk to herself. They agreed Miss X should be detained Under Section 3 for treatment. Furthermore, they suggested Miss X would benefit from treatment in a specialist personality disorder unit.
- The case records suggest Miss X’s condition stabilised and she moved to a specialist personality disorder placement in April 2019, where she remained until June 2019. I understand Miss X has since lived independently in the community.
- In my view, there was evidence available, by early July 2018, to show the support Miss X was receiving in the community was not sufficient. This is shown by her repeated readmissions and discharges between February and July 2018. This should have led the Trust to consider a longer admission to allow her condition to stabilise. This would also have allowed clinicians to complete a comprehensive review of Miss X’s diagnosis and care needs.
- In fact, this did not happen until Miss X’s readmission in December 2018. Even then, the change in approach to Miss X’s care came about only because of Mr X’s decision to seek a detention under Section 3 against the recommendations of the clinical team. This was fault by the Trust.
- This meant Miss X remained at significant avoidable risk in the community.
- Mr X complained the temporary accommodation the Council arranged for Miss X was unsuitable for someone with her needs. Mr X said there were other substance misusers at the accommodation and that this placed Miss X at greater risk as she did not have adequate support in the community.
- The Council said it offered Miss X interim accommodation in a bed and breakfast hotel while it decided whether it owed her a housing duty. The Council said a housing officer completed a suitability assessment that considered Miss X’s circumstances and complex care needs. The Council said the accommodation was close to Miss X’s GP practice and an outpatient unit at which she was receiving treatment and allowed her to access these services without disruption. The Council concluded the accommodation was suitable for Miss X.
- The records show Miss X first approached the Council for housing support in January 2018. Under Section 188 of the Housing Act 1996, the Council had a duty to provide Miss X with interim accommodation while it made inquiries to determine whether it owed her the main homelessness duty.
- A housing officer completed a suitability assessment for Miss X. This recorded Miss X’s diagnoses of Schizoaffective Disorder and EUPD. It also noted that Miss X had a long history of substance misuse.
- The housing officer identified a potential placement in a neighbouring borough. This was a bed and breakfast hotel with 24-hour on-site staff. In addition, the Council told me drug use is not permitted at the hotel.
- As I have explained above, I do have concerns about the circumstances surrounding Miss X’s discharge from hospital in February 2018 and the planning of her care more generally.
- Nevertheless, the evidence I have seen suggests the Council appropriately assessed the suitability of the interim accommodation, taking account of Miss X’s mental and physical health needs. This was in keeping with the requirements of the Code of Guidance. Based on the evidence available at that time, I have identified no grounds on which to challenge the Council’s decision that the placement would be suitable for Miss X on an interim basis. I find no fault by the Council on this point.
- I am aware of Mr X’s concerns about drug use among guests at the hotel and have reviewed the care records in relation to this issue. Between February and June 2018, I found no evidence to suggest Miss X or the professionals involved in her care raised this as a concern.
- Miss X’s care coordinator did write to the housing team in May 2018 to seek a change of accommodation. This made no mention of substance misuse at the hotel, noting simply that Miss X “does not like the environment at [the hotel] and is anxious to move from there.” A housing officer subsequently provided the care coordinator with application forms for the Council’s Single Homeless Team. This was with a view to supporting Miss X with an application for supported living.
- However, in July 2018, Mr X wrote to Miss X’s care coordinator to express concerns about her care and accommodation. He wrote that “[m]ost worrying of all it has become evident over the last month that [the hotel], where she has been living, has an endemic drug culture.”
- The care coordinator contacted the housing officer to report Mr X’s concerns. She also spoke to Mr X the following day, noting he “said that [Miss X] is now saying that she likes living at the hotel but he’s concerned about the alleged drug use that he says takes place there.”
- Shortly after this, the housing officer completed her inquiries. She found Miss X had no local connection to the area and referred the case to the local authority in Wales where Miss X had previously been resident. The Council did not consider reviewing Miss X’s accommodation at that stage as it believed the duty to accommodate Miss X would pass to the other local authority. I find no fault by the Council on this point.
- Miss X subsequently appealed successfully against the Council’s decision. This process was not concluded until October 2018. The Council then accepted Miss X onto its housing register.
- By this point, there was further evidence to support Mr X’s concerns about substance misuse at the hotel. During a meeting on 10 September, Miss X discussed her ongoing substance misuse problems with her social worker. The note of this conversation shows Miss X was purchasing drugs locally and had been in a relationship with another substance misuser at the hotel.
- A further entry, from 18 October, details a conversation between the housing officer and the manager of the hotel. The manager informed the housing officer that he had recently evicted two residents for drug and alcohol misuse.
- In my view, there was certainly a case for reviewing the suitability of the temporary accommodation by this point. However, during her hospital admission in November 2018, Miss X told the housing officer she would not return to the hotel and the booking was cancelled.
- Miss X remained, for the most part, an inpatient until June 2019. The Council arranged alternative temporary accommodation for Miss X on her discharge from the specialist personality disorder unit.
- In summary, I consider the lack of robust care planning had a significant impact on the care and support provided to Miss X in the community. This meant opportunities were missed to explore specialist accommodation options for Miss X (such as the personality disorder unit or inpatient drug rehabilitation) as part of her Section 117 aftercare provision.
- However, I found no fault with the actions of the Council’s housing team regarding its choice of temporary accommodation for Miss X, based on the information that was available to it at that time.
- Within one month of my final decision statement, the Trust will write to Miss X to apologise for:
- Its failure to properly plan and record Miss X’s Section 117 aftercare needs, in accordance with the requirements of the Mental Health Act Code of Practice during her hospital admissions in February and March 2018.
- Its failure to robustly review Miss X’s diagnosis to ensure clarity and allow her to access appropriate care services in the community.
- Its failure to have regard for Miss X’s rights under the ECHR and Human Rights Act 1998 when detaining her in hospital without lawful authority during her admission in June and July 2018.
- Its failure, from July 2018, to consider a longer admission for Miss X to allow her condition to stabilise and for a review of her ongoing care needs to be undertaken.
- The Trust’s apology should recognise the significant impact of this fault on Miss X in terms of the distress she suffered during this period and the fact she was placed at risk of harm in the community.
- The Trust will also pay Miss X £1,000 in recognition of the impact of this fault on her.
- Also within one month of my final decision statement, the Trust will write to Mr X to apologise for its failure to provide Miss X with appropriate care. This fault caused Mr X distress and put him to unnecessary time and trouble.
- The Trust will also pay Mr X £100 in recognition of the impact of this fault on him.
Council and CCG
- Within one month of my final decision statement, the Council and CCG, as the agencies with the statutory duty to provide, or arrange for the provision of, Section 117 aftercare services, will write to Miss X to apologise for:
- Their shared failure to ensure that Miss X was provided with appropriate Section 117 aftercare services in accordance with the Mental Health Act 1983 following her discharges from hospital in February and March 2018.
- The Council and CCG’s apology should recognise the significant impact of this fault on Miss X in terms of the distress she suffered during the period following her discharge and the fact she was placed at risk of harm in the community.
- The Council and CCGT will also each pay Miss X £500 in recognition of the impact of this fault on her.
Trust, Council and CCG
- Within three months of my final decision statement, the Trust, Council and CCG will review all relevant policies and procedures to:
- Ensure there is a clear process in place for assessing, and recording, the needs of service users who are entitled to Section 117 aftercare services. This process should ensure that each service user’s Section 117 needs, and how these will be met, are clearly recorded in a robust care plan in accordance with the requirements of Mental Health Act Code of Practice.
- Ensure there is a clear process in place for completing regular and timely reviews for service users with an entitlement to Section 117 aftercare services. These reviews should clearly record the service user’s ongoing care needs. The process should also ensure the service user and, where relevant, carers and family members are central to the review.
- Ensure a clear register is maintained of all service users in the area with an entitlement to Section 117 aftercare. This should record when each service user became eligible for Section 117 aftercare and when their next aftercare review should be completed.
- Ensure all staff with responsibility for administering, commissioning, assessing for, or providing, section 117 aftercare have knowledge of the revised policy, as well as any relevant law and guidance.
- The Trust, Council and CCG will provide the Ombudsmen with evidence that they have completed this work.
- I found fault on the part of the Trust, Council and CCG in terms of the care and support they provided to Miss X following her discharge from hospital in February 2018.
- This fault caused Miss X significant distress and placed her at risk of harm.
- In my view, the action these organisations have now agreed to take represents a reasonable and proportionate remedy for the injustice suffered by Miss X as a consequence of the fault I have identified.
- I have now completed my investigation on this basis.
Investigator's decision on behalf of the Ombudsman