Summary: The Ombudsmen find there was fault by a Trust in giving a family incorrect information about a mental health patient’s status. When this came to light it caused the patient’s wife considerable stress which has not yet been fully addressed. The Ombudsmen also find that fault by a Council meant the patient’s wife suffered this stress for too long. The Ombudsmen has recommended small financial payments to act as an acknowledgement of the outstanding injustice.

The complaint

1. Ms N, Mr K’s daughter, complains that Mr K may have been unfairly and incorrectly denied section 117 funding for his time in a nursing home. She feels his initial detention under section 2 of the Mental Health Act 1983 (the MHA) should have been converted into a detention under section 3.
2. If it is correct that Mr K was not detained section 3, Ms N complains that:

• While Mr K was detained under section 2 a member of staff from Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust) explicitly told the family, more than once, that he would be entitled to section 117 aftercare funding on discharge;
• Professionals put the family under pressure to find a nursing home quickly;
• Professionals did not give the family sufficient written information about Mr K’s status and treatment, or appropriately involve and support them in meetings about his future care.

3. Ms N said, as a direct result of these failings, the family lost the right to make an informed choice about where Mr K went after hospital. Ms N said that, without the failings, the family would have moved more slowly and would have discussed further options, including taking Mr K home. Further, Ms N said the family would have ensured a financial assessment took place to make sure they could afford the placement.
4. In addition, again if it is correct that Mr K was not detained under section 3, Ms N complains that Mr K was illegally detained at the nursing home for ten days before Deprivation of Liberty Safeguards (DoLS) were put into place.
5. Ms N also complains about Durham County Council’s (the Council’s) actions after it said Mr K was not eligible for section 117 funding. Ms N said the Council advised waiting to complete a financial assessment until the complaints process was exhausted, including a complaint to the Ombudsmen. Ms N said this extended a delay in Mrs K claiming pension credits. In addition, Ms N complains the Council failed to give appropriate advice about who the family could contact for advice and support.
6. Ms N complains Mr and Mrs K may have been unfairly financially disadvantaged as a result of failings.
7. Further, regardless of the actual financial consequences, Ms N said these events caused Mrs K’s physical and mental health to deteriorate significantly through stress. Ms N said Mrs K did not look after herself properly as she was trying to save money to pay the bills she had presented with and the bills she anticipated receiving. Ms N said this lack of self‑care, in turn, led to an emergency admission to hospital. In addition, Ms N said Mrs K felt there may have been a lost opportunity for Mr K to return home. Ms N said, as such, Mrs K lives with the guilt that they could have spent more time together in their own home. Ms N said that it had been distressing for the whole family witnessing Mrs K suffering this stress.
8. Ms N also said that she and her sister lost out on earnings in the region of £2,000 in having to pursue their complaints about these matters.

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The Ombudsmen’s role and powers

9. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015 a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
10. 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.
11. When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
12. The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
13. 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

14. I read the correspondence Ms N sent to the Ombudsmen, liaised with her via email and reviewed the evidence she provided. I wrote to the organisations to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
15. I shared a confidential copy of my draft decision with Ms N and the organisations under investigation to explain my provisional findings. I invited their comments and considered those I received in response.

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What I found

Relevant legislation and guidance

Mental Health Act 1983

16. The MHA is the law which sets out when people can be admitted, detained and treated in hospital against their wishes. This is only done when someone is putting their own safety or someone else’s at risk, and they have a mental disorder. The MHA defines the term ‘mental disorder’ as ‘any disorder or disability of mind'. This includes dementia.
17. Section 2 of the MHA allows people to be detained in hospital for up to 28 days for an assessment of their mental health. Hospital staff cannot extend a section 2 detention. If staff believe the person needs treatment in hospital for longer, and the person will not agree to this, they can consider detaining the person under section 3.
18. Section 3 allows people to be detained in hospital for treatment for up to six months. A person can only be detained for treatment under section 3 if all of the following criteria apply:

• The person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital;
• It is necessary for the health and safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section; and,
• Appropriate medical treatment is available.

19. Section 117 of the MHA requires councils and clinical commissioning groups (CCGs) to provide free aftercare services to certain people. This includes people who have been discharged from detention in hospital under section 3 of the MHA, but not people detained under section 2.

Mental Capacity and Deprivation of Liberty Safeguards

20. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Code of Practice (the MCA Code) describe the steps people should take when deciding something for someone who cannot make that decision on their own.
21. DoLS is an amendment to the MCA. DoLS provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. DoLS protect people from being deprived of their liberty unless it is in their best interests and there is no other less restrictive alternative.
22. Once there is, or is likely to be, a deprivation of liberty it must be authorised. Without authorisation a deprivation of liberty is unlawful.

Background

23. Doctors diagnosed that Mr K had dementia in 2011. Over the following years his mental health gradually deteriorated. However, by early 2017, Mr K continued to live at home with Mrs K and did not receive any formal care support.
24. In February 2017 Mr K went into an acute medical hospital. During his admission he became increasingly confused and infirm. In the middle of March 2017 mental health professionals agreed he should be detained under section 2 of the MHA. Mr K went into a mental health hospital for an assessment.
25. On 10 April 2017 Mr K left hospital and moved into an EMI (Elderly Mentally Inform) bed of a care home (the Care Home). Both the family and Council believed that Mr K had been detained under section 3 of the MHA and that this placement would be fully funded by the Council and NHS. Neither the Care Home, nor the Council nor any other organisation sent Mrs K any invoices for the placement.
26. In September 2018 an annual review of Mr K’s case took place attended by, among others, a Social Worker and Mrs K. The Social Worker told Mrs K that Mr K was not eligible for section 117 funding. They told Mrs K that she may need to pay a contribution toward the cost of Mr K’s placement in the Care Home.
27. Ms N complained and got a response from the Council in the middle of November 2018, and responses to follow up complaints in December 2018 and January 2019. The Council said there had been a misunderstanding about Mr K’s eligibility for section 117 aftercare funding: it said Mr K had not been eligible but it had mistakenly understood he was up until September 2018. The Council said the misunderstanding stemmed from information a Social Worker got from a Trust Nurse. However, the Council said that even if the confusion about funding had not occurred Mr K would still have gone to a care home.
28. The Council said it would not ask for a contribution to the cost of Mr K’s care from 10 April 2017. In the final response the Council set an indicative date of 1 March 2019 for when it would start charging for Mr K’s care (in the case that was assessed as necessary). The Council said it understood the local CCG was due to assess Mr K’s eligibility for NHS Continuing Healthcare (CHC) funding soon. The Council said if this found Mr K was not eligible it would need to complete a financial assessment, to see if Mr K needed to make a contribution to the cost of his care. The Council said it would postpose completing a financial assessment until the CHC review had been done, and until Ms N had pursued her complaint to the Ombudsman. It said it would backdate charges to 1 March 2019 as and when the financial assessment was completed.
29. Ms N complained to the Trust in February 2019. The Trust responded at the end of June 2019, and replied to a follow up complaint in September 2019. The Trust said Mr K had not been detained under section 3 of the MHA and said it would have been inappropriate to have done so.
30. The Trust said there was nothing to definitively show that a member of staff told the family or a Social Worker that Mr K had been detained under section 3. However, the Trust acknowledged it was likely there had been some miscommunication or misunderstanding when a staff member spoke to the family in April 2017. The Trust also acknowledged that this miscommunication meant Mrs K believed Mr K’s care would be fully funded.
31. The Trust said this did not affect discussions about where Mr K should go to when he left hospital. However, the Trust apologised for the upset and distress the miscommunication had caused Mrs K and her family. The Trust said it would remind staff to signpost families to the appropriate person/authority for issues about funding and placements. It said this would ensure they received accurate information and would prevent assumptions and misunderstandings.
32. In June 2019 Mrs K received two bills from the Council. One for £8,226.90 for overpaid housing benefits between April 2017 and May 2019. Another for £2,063.51 for council tax for the years 2017/2018 and 2018/2019.
33. One of Mrs K’s daughters settled the majority of the council tax bills before the end of the month (and they were settled in full by 1 January 2020). She wrote to the Council about the bill for overpaid housing benefit and explained the circumstances of Mr K’s case. The Council agreed not to pursue this debt.
34. In July 2019 Mrs K applied for pension credits, which she began receiving at £155 per week. She was advised that she could not make a retrospective claim for these credits.

Analysis

MHA status

35. Mr K was not detained under section 3 of the MHA. Records show his Responsible Clinician rescinded his detention under section 2 of the MHA on 10 April 2017. There are no records of an application to detain him under section 3.
36. As noted above, specific criteria need to be met to authorise a detention under section 3. In November 2018 the Responsible Clinician spoke to Ms N and explained her view of why it would have been inappropriate to have detained Mr K under section 3 in April 2017, and why it would have been inappropriate to do so at the time of speaking. The Trust reiterated this explanation in its complaint response of June 2019. The Trust’s rationale is in keeping with the MHA and I have not found evidence of fault.

Authorisation for placement in the Care Home

37. Mr K went into the Care Home on 10 April. He was no longer detained under the MHA. There is evidence to show the Care Home completed an urgent DoLS authorisation (for seven days) the next day and asked the Council for a standard authorisation. The Council provided this on 2 May, authorising the DoLS for 12 months. There was therefore a period between 17 April and 2 May when Mr K’s liberty was deprived without an appropriate authorisation in place. This was fault.
38. I have not seen anything to suggest that there was a notable change in circumstances between 17 April and 2 May. The records show that professionals agreed the placement was appropriate for Mr K’s needs and that the restrictions on his liberty were necessary and the least restrictive way of keeping him safe. Further, I have not seen evidence of any plan or request to remove Mr K from the Care Home which was blocked. Therefore, on balance, the same decision – to authorise DoLS – would have been reached if it had been made earlier. Also, I have not seen evidence of changes to the day-to-day arrangements for Mr K’s care after 2 May. As such, the fault here did not have any material impact on Mr K’s circumstances and I do not consider this fault led to a specific injustice to Mr K or the family.

Advice about MHS status

39. On the balance of probabilities the evidence (from Ms N and from the Council) shows a Trust employee gave the family and Council incorrect information that Mr K had been detained under section 3. This was fault. As a result the family believed Mr K’s care in a care home would be fully funded. The Trust has already acknowledged this. I have looked at the impact below.

Choice between returning home and going to a care home

40. Ms N said Mrs K felt there may have been a lost opportunity for Mr K to return home. Ms N said, as such, Mrs K lives with the guilt that they could have spent more time together in their own home.
41. The Council’s records show that in late February – before Mr K had been detained under section 2 – professionals felt Mr K’s complex needs meant he would need an EMI placement. The records also show that Mrs K agreed that Mr K would need to go into a placement that could provide 24-hour care as she no longer felt able to manage his increased needs. The Council recorded this as a Best Interest decision, made with Mrs K. The evidence shows that Mrs K agreed with this with the understanding that there would need to be a financial assessment. There is further evidence (including after Mr K had been detained and was in a different hospital) which reiterates that Mrs K no longer felt able to safely look after Mr K at home, and that professionals agreed he needed an EMI placement.
42. Therefore, on balance, the miscommunication about Mr K’s MHA status did not lead to a loss of opportunity for Mr K to return home. There is enough evidence to show that, even before any discussion about costs, this possibility had already been dismissed.

Choice of care home, including pressure to act quickly and a lack of information and support

43. Ms N said that if the miscommunication had not happened the family would have moved more slowly and would have discussed further options, including taking Mr K home.
44. The Council’s records show that social care staff quickly concluded that Mr K would need an EMI bed. This happened in February. As noted above, other professionals concurred with this view at this early stage and later. The Council approached a placement, Care Home B, in February (before Mr K had been detained) and provisionally put Mr K’s name on its waiting list. However, at the end of this month this placement said it could not meet Mr K’s needs. The Council approached another home.
45. A Social Worker made a note in early March (before Mr K had been detained) about a conversation with a family member about possible placements. The family member noted one which they did not consider would be suitable and said they would prefer a placement to be in Bishop Auckland. The Social Worker said that, at that time, they could not find a placement in that area.
46. By the time Mr K transferred to the mental health hospital Mrs K told staff that three care homes had said they could not meet Mr K’s needs.
47. A week after Mr K’s detention the Social Worker asked ward staff to ask Mrs K to ‘to look at nursing homes now in advance of final decision as places were hard to find [and] the [only] EMI nursing bed currently available in Bishop Auckland is at [Care Home B]’.
48. Six days later Mrs K told the Social Worker that she and her family had been to see Care Home B. The Social Worker noted Mrs K said were not very impressed with it but said ‘they would rather have him there than be outside of Bishop Auckland area and as there were no other nursing beds available at the moment she agreed to me asking [Care Home B] to visit for the pre-admission assessment’.
49. Council records from the following day show that they were still working on the understanding that Mr K was detained under section 2. The Social Worker told a member of the family that the hospital was hoping to discharge Mr K before 8 April. The Social Worker said Care Home B had been the only home with the required type of care in Bishop Auckland with a vacancy. The Social Worker noted they ‘explained this did not restrict an admission to [Care Home B] and if [the family] found another home they preferred which had an EMI [nursing] vacancy then this could be arranged instead of [Care Home B]. [The member of the family] confirmed her understanding and agreed to explain further to her mother – and with her check out the possibility of other alternatives…’
50. Ms N said Trust staff later told the family that there was a vacancy at the Care Home. She said the staff member said places went quickly and, if the family wanted Mr K to go there, they would need to make a quick decision. Ms N said they agreed to this placement as it was better than Care Home B, and because they understood it would be fully funded.
51. Overall, the evidence shows that the search for an appropriate placement started before the confusion about Mr K’s MHA status. Further, the evidence shows there were limited choices of appropriate placements in the desired area with vacancies. In this context the advice to make a quick decision because a vacancy may go quickly seems understandable. It seems that, even without the miscommunication about Mr K’s MHA status, the options available to the family would still have been limited, and there still would have been time pressures. Therefore, on the balance of probabilities, I cannot say that Mr K missed out on an available placement at another provider because of the fault that occurred.
52. The records from the Council show that staff involved Mrs K in discussions and decisions about Mr K’s care. Staff also spoke to members of the family about the status of things. The evidence shows that family were able to advocate on Mr K’s behalf and were able to express their own views and preferences about his needs and support. Therefore, I have not found any fault that either the Council or Trust failed to adequately support Mr K or his family during this time.

Impact of being told Mr K was not eligible for section 117 funding

53. As noted above, a Social Worker told Mrs K that Mr K was not eligible for section 117 funding at a review in September 2018. Mr K had been in the Care Home for 17 months by this point. No one had asked the family for any financial contribution to the cost of Mr K’s care during this time.
54. Ms N said when her sister visited Mrs K after this meeting Mrs K was ‘inconsolable. She thought that [Mr K] would be moved from [the nursing home] as she did not have the funds to pay for all the care he had already received’. Entries in later Council records also reference Mrs K’s distress.
55. Therefore, there is evidence to show this news caused Mrs K a significant amount of worry about what the consequences may be. This would not have happened if the original fault had not occurred, so this stress is an avoidable injustice which the Trust was responsible for. I do not consider the Trust’s apology fully addresses the impact on Mrs K. I have made a recommendation for further action, below.

Actions of the Council after identifying the mistake

56. Ms N said that at the review in September 2018 the Social Worker said they would investigate what had happened and would get back to Mrs K about it. As detailed above, she said Mrs K was worried about the financial implications and about whether Mr K may have to move.
57. There is a note in the Council’s records which states that a manager spoke to a member of the family in early October, 17 working days after the review. The manager recorded that they ‘tried to reassure that any costs for care will be paid for by [the Council] from date of admittance into [the Care Home]…’ The manager also noted ‘I have offered reassurance that any request to look at finances will not proceed until [a newly allocated Social Worker]…has introduced herself and I have had the opportunity to discuss details with my senior managers’.
58. The Council sent its response to Ms N’s complaint in the middle of November 2018. In this it said it ‘would not seek to recover any contribution your father was liable to make towards his care home fees from 10 April 2017’. The Council said there would be no requirement to backdate any assessed financial contribution, if Mrs K was required to make one.
59. In summary, the evidence shows the Council offered some reassurance that Mrs K would not be asked to make any back payments a little over three weeks after it told her Mr K was not eligible for section 117 funding. It provided written confirmation of this six weeks later (about nine weeks after the initial news). By September 2018 Mr K had been in the Care Home for around 17 months. As such, concerns about a move from a settled environment and routine would have been very daunting. Further, had a back payment been requested, it is likely to have been a significant sum. It was within the Council’s power to offer support and reassurance about this. The Council should have provided confirmation that it would not seek a repayment sooner. It was fault that it did not do so.
60. As referenced earlier, there is evidence to show that Mrs K experienced considerable stress because of these events. Ms N said Mrs K’s worry was such that she did not care for herself and this, in turn, caused her to become ill needing a hospital admission. From my perspective I cannot say that Mrs K’s hospital admission would not have happened otherwise, and cannot link this as a consequence of the fault. Nevertheless, on balance, the stress Mrs K experienced was considerable and did not need to last for as long as it did. Therefore, this fault by the Council exacerbated the Trust’s original mistake and there is an avoidable injustice which the Council holds some responsibility for. I have made a recommendation to address this.

Council’s actions in 2019

61. In January 2019 staff from the Council met Ms N to discuss her concerns and then wrote to her the same day. The Council said it would make Mr K’s placement chargeable (pending the outcome of a CHC review and a financial assessment) from 1 March 2019. It also agreed to postpone the financial assessment until the full complaints process was complete. The Council also offered to arrange a review of Mrs K’s benefit entitlement.
62. By May 2019 the financial assessment continued to be ‘held’. A Social Worker made notes of a meeting at the end of the month and noted that Mrs K was anxious about finances. The Social Worker noted ‘Discussed if this was causing Mrs K increased anxiety would it not be [worthwhile] having this assessment (knowing it would not be chargeable until complaint(s) resolved)…[Mrs K’s daughter agreed] and agreement made for [financial assessment] to be arranged with finance team, Mrs K to be supported by daughter for this assessment…’
63. Overall, I am satisfied the Council acted reasonably and fairly during this time. It gave advance warning of when the placement could become chargeable. It also took account of the family’s wishes in terms of the timing of the financial assessment in relation to a CHC assessment and complaint. Further, the Council offered to complete a review of Mrs K’s benefits. There was no requirement on the Council to direct the family to any possible sources of advice. Therefore, I have not found any fault in the Council’s actions during this period.

Financial consequences

64. In June 2019, Mrs K was asked to repay £8,226.90 for housing benefit payments she had received since Mr K went into the nursing home. Also in June 2019 Mrs K received a bill for £2,063.51 for unpaid council tax for the period Mr K had been in the nursing home. In July 2019 Mrs K began receiving pension credits. However, she could not make a retrospective claim for the credits she would have been eligible for from April 2017 to July 2019. This meant she missed out on roughly £8,500 in credits.
65. Mrs K remains without the pension credits she would have been entitled to from April 2017. Further, it is probable that, had Mrs K been receiving pension credits from April 2017, she would have received a full council tax reduction. Mrs K has paid the bill in full. The Council has agreed not to seek repayment of the overpaid housing benefit payments. However, as with the council tax, it is likely she would have been entitled to this had she been in receipt of pension credits from the outset.
66. Therefore, had the initial mistake about Mr K’s status not occurred she may have been roughly £10,000 better off, in terms of pension credits, benefits and council tax. However, this is only half of the consideration. This is the potential income and deductions Mrs K missed out on, but we also need to consider the potential costs Mr K and Mrs K missed as well, also because of the initial mistake. Had the original fault not occurred it seems likely that Mrs K would have been liable to make a contribution to Mr K’s care home fees from April 2017. Further, it seems probable that the total contribution from April 2017 to July 2017 would have been more than £10,000. Therefore, I have not found evidence that Mrs K has suffered a financial injustice because of the original fault.

Complaint handling

67. There is inevitably time and trouble involved in bringing a complaint. We will generally only consider recommending a remedy when there has been a fault in the way the organisation considered the complaint which meant the complainant incurred time and trouble above what is considered usual.
68. Both the Council and Trust provided written responses to Ms N’s complaints and met with her to discuss her concerns. I am satisfied both organisations engaged in the complaints process appropriately, and neither imposed an unnecessarily difficult process on Ms N. Therefore, I have not found fault and have not found cause to recommend any reimbursement of costs the family incurred in pursuing the complaint.

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Agreed actions

69. Within one month of the date of the final decision the Trust and the Council should each pay Mrs K £300 (i.e. £600 in total). This is to act as a tangible acknowledgement of the avoidable stress she suffered as a result of, firstly, the Trust’s initial miscommunication and, secondly, the Council’s failure to address the mistake quicker after it came to light. The Trust and Council should send an accompanying letter to acknowledge what the payments are for.

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Decision

70. I have completed this investigation on the basis there was fault by both the Trust and the Council which led to an unremedied injustice. The Trust and Council have agreed to take action to address the injustice.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman