Summary: The Ombudsmen found that a Council complied with the Ombudsmen’s recommendations to complete a care review for an individual, in line with the Mental Health Act Code of Practice. The Ombudsmen found fault with governance arrangements between the Council and the CCG, but this did not cause any injustice in this case. The Ombudsmen has recommended actions to address this.

The complaint

1. Mrs H complains Hampshire County Council (the Council) failed to follow the Ombudsmen’s recommendation. This was to produce a section 117 aftercare plan for her daughter, Miss G, in accordance with the Mental Health Act Code of Practice. Mrs H also says the Council failed to take her comments or relevant medical evidence into account for the assessment.
2. Portsmouth CCG (the CCG) has joint responsibility for Miss G’s section 117 aftercare plans and has therefore been included in this investigation.
3. Mrs H also complains the Council failed to agree a Disabled Facilities Grant (DFG) when the Miss G applied in May 2016.

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The Ombudsmen’s role and powers

4. 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).
5. 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.
6. 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)
7. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
8. 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

9. In reaching my decision, I took account of the information Mrs H provided to the Ombudsmen during this and her previous complaint to the Ombudsmen. I made enquiries of all the Council and the CCG and took account of the documents and comments they provided, including relevant social care records. I have also considered additional documents Mrs H sent to the Ombudsmen and her comments on a draft of this decision statement.

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What I found

Legal and administrative context

Section 117 aftercare and Code of Practice

10. The Mental Health Code of Practice (the Code of Practice) provides statutory guidance for councils and health commissioners. It shows professionals how to carry out their responsibilities under the Mental health Act 1983 (the Act). The Code of Practice says that section 117 of the Act requires Clinical Commissioning Groups and councils, in co-operation with voluntary agencies, to provide or arrange for the provision of aftercare to patients who have been detained in hospital for treatment under section 3 of the Mental Health Act 1983.
11. The duty to provide after-care services continues as long as the patient is in need of such services to prevent their readmission to hospital and to support them in regaining or enhancing their skills, or learning new skills, in order to cope with life outside of hospital.
12. The aftercare plan should be recorded in writing. Once the plan is agreed, it is essential the statutory agencies discuss the plan with the patient, as well as other relevant persons, before the services are implemented. The aftercare plan should be regularly reviewed and it is the responsibility of a designated care co-ordinator (or other officer responsible for its review) to arrange reviews of the plan until it is agreed that it is no longer necessary.

Mental Capacity Act

13. 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.
14. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
15. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.

Background

16. Miss G began receiving support from mental health services in 2007 when she was 13 years old. She was detained under section 3 of the Mental Health Act in 2009. Clinicians diagnosed Miss G with severe depressive episodes, social anxiety, and autistic spectrum disorder. She was discharged from hospital in 2010.
17. Mrs H previously complained to the Ombudsman about failings with the care provided by the Council and health organisations after leaving hospital. The Ombudsmen completed their investigation in early 2018. This found the Council failed to meet its duties around section 117 aftercare planning. The Council agreed to produce a section 117 aftercare plan for Miss G which met the requirements of the Code of Practice.
18. Mrs H complained again to the Ombudsmen in October 2019. She did not consider the Council had completed the agreed actions in completing a section 117 aftercare plan that met the Code of Practice.

Analysis

19. The records show the Council started the assessment with Miss G. It recorded that told her care coordinator she did not want Mrs H involved in the process as she wanted independence. The result of the assessment was a reduction in hours (15 to 13 hours), which Miss G agreed to. The reduction was because Miss G was not using the 15 hours the Council previously assessed her as needing and she had a surplus with her funding.
20. The records show this was a fully considered decision and involved Miss G in the decision making. I am therefore satisfied the Council followed the Code of Practice in completing this assessment. It included Miss G in the assessment process, discussed the decision with her and sought agreement before making any changes.
21. Mrs H complains the Council did not consider a psychiatry report when completing the assessment. These were letters Miss G’s psychiatrist wrote to her GP following a clinic review. It was not a report written for a care assessment. The date of the first letter was September 2018 and the second was July 2019.
22. The Council confirmed that it did not have sight of the letters until after the date it completed Miss G’s care assessment in March 2019. The Council therefore could not have taken these letters into account when it completed the assessment. However, the records support that when the Council became aware of the information, and because of Mrs H’s continuing disagreement with the assessment the Council had completed, it agreed to reassess Miss G. It is evident the Council therefore took the new information into account and agreed to reassess Miss G to see if this affected the outcome. This was the right thing to do to meet its care planning responsibilities. There was no fault by the Council.
23. It is clear from the records there has been a lot of contact between Mrs H, Miss G and the Council about the assessments. The records show at times during the assessments that Miss G did not want anyone else involved in her care planning. As she had no recorded issues with mental capacity to make decisions, there was no reason for the Council to question or discount these wishes. However, when Miss G was happy to include Mrs H with her care, the records show the Council communicated and shared appropriate information.
24. Miss G’s care plan addresses needs arising from her mental health with a funded package of direct payments. She used this to employ a personal assistant to help promote her confidence and independence. By using direct payments, this also provides Miss G with flexibility of how and when to use the hours of support.
25. If Miss G’s situation changes and she believes the agreed care plan no longer meets her needs, she should raise this first with the Council or relevant health professional.
26. The Council and the CCG have joint responsibility for the funding and provision of section 117 aftercare. The CCG had no knowledge of this case and therefore I can conclude it had no oversight of the section 117 aftercare planning in this case. This is fault. However, I do not consider there was any injustice arising from this fault as in this case, this is an administrative failing rather than anything affecting Miss G’s aftercare planning. This lack of oversight could however potentially cause issues in other cases.

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Agreed actions

27. The CCG and the Council have agreed to review their section 117 aftercare planning governance arrangements to ensure adequate oversight of section 117 aftercare provision and review. They have agreed to complete this within three months of the date of the Ombudsmen’s final decision.

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Final decision

28. I am satisfied the Council has acted in accordance with the Ombudsmen’s recommendation to reassess Miss G and that this followed the code of practice with aftercare planning. I have not therefore found fault by the Council in this regard.
29. There was fault with the lack of communication between the Council and the CCG in terms of joint oversight and responsibility for section 117 aftercare provision. The organisations have agreed actions to address this. I have therefore completed my investigation.

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Parts of the complaint that I did not investigate

30. Mrs H’s complaint that the Council failed to agree a Disabled Facilities Grant (DFG) when the Miss G applied in May 2016 is late. This issue relates to events that happened in 2016. Mrs H has not brought this complaint to the Ombudsman previously and I have seen no reason why she could not have raised this sooner. Mrs H was aware of the issue when she previously complained to the Ombudsmen, but this issue was not mentioned to us until she raised her new complaint. By this time it was three years after the event. We cannot therefore consider this complaint.

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Investigator's decision on behalf of the Ombudsman