The Ombudsman's final decision:
Summary: Mr B complains the Trust refused to detain his father, Mr C, in hospital. The Trust properly considered whether to detain Mr C. Mr B also complains the Council did not offer Mr C a placement in a care home. Mr C did not want to go into a care home but preferred to be at home with his wife. There is no fault.
- Mr B complains about his father, Mr C’s care and treatment by the Northumberland, Tyne & Wear NHS Foundation Trust (the Trust) and Northumberland County Council (the Council). In summary:
- the Trust did not admit Mr C to a mental health hospital during his initial assessment on 30 June 2019.
- a respite bed at a care home organised by the Council was not available on 10 July 2019. Mr C took an overdose that evening.
- Mr C was admitted to hospital again in September 2019. When he was discharged, Mr B believes the Trust failed to take appropriate action. In particular, Mr B requested Mr C be detained under the Mental Health Act. He disputes the Trust’s comments that he was happy for his father to remain at home.
- In December 2019, a Psychiatrist visited and Mr B again requested his father be detained. The Psychiatrist promised a bed closer to his home. Mr B says his father was never offered a bed.
- the Council’s offers of respite were inadequate and Mr C should have been offered 24-hour care rather than short breaks. Mr B believes the Social Worker who assessed his father refused to recommend a place at a specific care home as her own mother was not eligible for a place there.
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 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.
- 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
- I have considered a complaint form Mr B completed and I have discussed the matter with him. I have asked the Council and Trust for comments on the complaint and considered the responses with supporting records.
- Mr B, the Trust and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Legal and administrative background
Mental health and mental capacity
- Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
- 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.
- 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.
Adult social care
- Sections 9 and 10 of the Care Act 2014 require local authorities to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to all people regardless of their finances or whether the local authority thinks an individual has eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
- On 30 June 2019 Mr C contacted the Trust. Two crisis clinicians visited Mr C that afternoon. The record of the visit said Mr C’s risk of suicide was low. His low mood was also related to the stress of caring for his wife, Mrs C. Mr C said he wanted to be admitted to hospital as he was having thoughts of self-harm because of the pain in his legs. Mr C said the pain had become worse over the last three months. Mr C wanted to speak to a psychiatrist to review his medication. The clinician reassured Mr C his medication could be managed in the community rather than being admitted to hospital, she recommended a further medication review and social care needs assessment.
- On 1 July 2019, Trust clinicians visited Mr C again at home. Mr C said over the previous two weeks the pain in his legs had worsened, he was feeling increasingly tired and ‘pretty down’. Mr C reported suicidal thoughts, although fleeting, and increased anxiety. The notes record Mr C had capacity. Mr C was offered another visit the following day. However, Mr C preferred a telephone call, a visit a few days later and a change in medication. One of the Trust’s specialty doctors reviewed Mr C’s medication the same day. The doctor recommended increasing Mr C’s anti-depressant medication, but he declined.
- The Trust reviewed Mr C again on 3 July 2019. His mood had improved since he had taken medication to improve his sleep. Mr B thought that Mr C needed hospital admission. Mr C said he did not feel he needed to be admitted to hospital, but would ask if he felt this was needed. Mr C denied suicidal intent or planning and agreed to another visit on 5 July.
- A crisis clinician assessed Mr C again on 5 July. He agreed to increase his anti-depressant medication and said his mood had improved even though he was finding the pain difficult.
- Mr C had a further home visit on 5 July. Mr B again said Mr C should be in hospital as he had been wandering outside at night and had thoughts of suicide. However, Mr C said he did not think hospital would improve his situation. The records noted Mr C had capacity to make decisions about his care and treatment.
- On the afternoon of 8 July 2019, Mr C’s crisis clinician asked the Council for urgent respite for Mr C. The referral form recorded that Mr C was not managing and was self-medicating. The family was requesting respite that evening. However, the contact records show a member of the Council’s Duty Team called Mrs C approximately an hour after receiving the referral. Mrs C said respite was not required that evening as Mr C had gone to bed. However, she asked a care manager to contact Mr C the following day to discuss respite.
- The contact sheets show a manager from the Council’s Duty Team (Mr D) visited the following morning, 9 July 2019. Mr C told Mr D he suffered from pain in his legs which made it difficult for him to sleep. He mentioned that his mood was worse at night. Mr D recorded that he did not think an emergency admission was appropriate but would contact Mr C’s GP and the crisis team. Mr D suggested social care support at home twice a day but Mr C said he would prefer respite. Mr D contacted Mrs C later that day who requested respite for the following day. Mr D asked for approval for a respite placement the same day.
- A different care manager visited on 10 July 2019 and confirmed respite was appropriate. She arranged respite to start the following day. Mr C took an overdose that evening. The notes later show Mr C explained that the pain in his legs was very severe. He tried drinking alcohol to reduce the pain and, when this did not work, decided to take an overdose.
- On 13 July 2019 the Trust reviewed Mr C in hospital. He discussed the possibility of staying in hospital because of the overdose but said he would like some time to think about it. Mr C was able to weigh the pros and cons of the options put to him and decided he wanted to continue with home-based treatment. He said he would revisit the option of hospital admission after 16 July. Mr B was present and again said Mr C needed a psychiatric evaluation in hospital.
- In late July Mr C agreed to go into hospital voluntarily. His medication was reviewed and adjusted during this time. Mr C went home for two brief periods to visit Mrs C.
- In early September, Mr B contacted the Council and asked that Mr C be given a 24-hour placement at a specific care home (Home A). Mr C left hospital a few days later against medical advice. The notes of his assessment before he left record that it was not appropriate to detain Mr C against his will as he scored low on a depression test and there was evidence he was at no risk of neglect and was not suicidal. The records suggest Mr B was aware of Mr C returning home. A nurse from the Mental Health team attempted to visit Mr C at home two days later but he declined to see her. The following day Mr C went back to hospital as he was having suicidal thoughts because of the pain in his legs.
- Later that month, a discharge nurse assessed Mr C. He was ready to leave hospital. Mr B wanted a placement for Mr C at Home A but he needed to be assessed by other health teams first. The nurse contacted Home A which advised it had no beds available. Mr C was discharged to a respite placement (Home B). However, Mr B contacted the Trust to explain he did not think Home B was appropriate. He explained he had contacted Home A and a bed was available from October. The records note the possibility of Home A was not discussed with Mr C. There is a note in the records indicating the option should be discussed with Mr C. The note confirms that, as Mr C had capacity to decide to go to Home B from hospital, he would be able to consider whether he wanted a place at a care home ‘…notwithstanding whether he meets the criteria.’
- In late September the Council allocated a social worker (Ms H). Ms H spoke to Mr B and explained she would need to assess Mr C before agreeing to a place at Home A. Ms H explained she had spoken to Home B who advised Mr C was independent with his care and she felt his care needs could be met in the community. Ms H also discussed the matter with Mr C’s community psychiatric nurse who agreed Mr C did not need the level of support Home A provided. However, she confirmed Mr C would not engage with her team so remained at risk of suicide.
- Ms H later visited Mr C at Home B. Mr B was present. Mr B again said Mr C should be in Home A but Ms H said Mr C was not eligible for a place there. Mr C said he wanted to go home.
- A Psychiatrist visited Mr C at Home B in mid-September. He noted there was a reduced risk of harm to Mr C while he was in 24-hour care but this would increase if he returned home.
- Ms H visited Mr C at the end of September to discuss his care options. Mr B was present. Ms H again confirmed that, as Mr C was independent with his care, he was not eligible for a place at Home A. Mr C said he wanted to go home. Ms H also spoke to Mrs C who confirmed they both wanted Mr C at home.
- At the start of October, Ms H visited Mr C again. She discussed whether Mr C wanted to stay at Home B for longer, go to a residential placement or to go home with a care package. Mr C said he wanted to go home. Ms H also spoke to Mrs C the same day who confirmed both she and Mr C wanted him at home.
- Mr C returned home in early October and the Council put in place one and a half hours of support from a care agency each week to encourage Mr C to leave the house and so he could speak to someone other than Mrs C. The same month a nurse carried out a joint visit with Ms H. Mr C said he liked Home B as it was a less-restrictive alternative to hospital. He confirmed his preference for Home B over hospital in another visit later that month.
- In November, Mr C had three separate hospital admissions. In early December he contacted Ms H and requested a weeks’ respite as he explained his pain was at ‘unbearable’ levels. Mr C went to Home B for respite again in early December.
- Mr B contacted the duty team shortly after Mr C returned home from Home B, in mid-December. He advised that he was worried for Mr C’s wellbeing. Ms H explained that Mr C needed input from physical and mental health services rather than social care. In mid-December the Psychiatrist who assessed Mr C when he was at Home B visited Mr C at home. Mr C agreed to go to hospital voluntarily. However, the only hospital bed available was where he had stayed during his admission in July and August and the family felt this was too far away. Therefore, Mr C wanted to stay at home until a closer bed became available. A Trust nurse called Mr C the following day and he said he did not want to go to hospital. The Trust maintained contact with Mr C and his family throughout December and the records note he was improving and did not want to go back to hospital. The Psychiatrist did not pursue the option of the hospital bed nearer to Mr C’s home on this basis and took him off the waiting list.
- The records from early January 2020 indicate Mr C was feeling more positive about the future. In particular, Mr C’s nurse noted Mr C seemed ‘brighter and more positive’ than before Christmas. Ms H spoke to Mr C about increasing his visits from the care agency. However, he declined.
- In late January Mr B contacted the Trust asking for a visit as Mr C’s ‘mind ha[d] gone’. However, when a nurse contacted Mr C later that day he denied feeling low or suicidal. The nurse visited the following day. However, Mr C had passed away. Mr B explained Mr C died from pneumonia.
First opportunity to admit – 30 June 2019
- Mr C said he wanted to be admitted to hospital when the Trust assessed him. However, after having discussed home-treatment and medication review, he agreed to remaining at home.
- The power to detain someone in hospital relates to whether that person is putting their safety, or somebody else’s at risk. Although Mr C had thoughts of self-harm, he explained he did not intend to act on these those thoughts. The clinician thought Mr C was at low risk of harming himself. On this basis, the Trust decided Mr C could remain in the community with a medication review and a social care needs assessment. Mr C ultimately had capacity to decide what he wanted to do, and he decided he preferred treatment at home, with the option to be admitted to hospital if he so wished, later. The reasoning is clear and there is no fault.
- The notes of the visit record Mr C had capacity at the time and was therefore able to decide whether to be admitted to hospital or be reviewed in the community. Although he initially said he wanted to be admitted, Mr C agreed to remain at home subject to further visits and medication reviews. I have seen, in Mr C’s follow-up assessment and reviews that he sometimes said he wanted to be admitted to hospital, but also that he preferred to remain at home. There is evidence the clinicians considered whether Mr C had capacity on each occasion and that they regularly reviewed Mr C, and this included medication reviews. This approach is consistent with mental capacity law.
Respite care on 10 July 2019
- Mr C contacted the Trust on 30 June 2019. He was clearly distressed and in need of services. Although I appreciate he was sometimes uncertain about whether he wanted respite care. Mr D assessed Mr C on 9 July 2019 and concluded respite care was appropriate. Mr D requested respite care the same day.
- Unfortunately, by the time the Council completed the second assessment and arranged respite, another day had passed. The failure to arrange respite for 10 July is evidence of fault.
- However, I cannot conclude Mr C would not have taken the overdose had he been offered respite a day earlier. Mr C said he took the overdose because of the pain in his legs. He tried alcohol but that did not work, so he took medication. I cannot conclude that the pain would not have been just as severe had he been in respite and therefore that he would not have taken the same action. Therefore, the delay of one day has not caused an injustice.
Failure to detain Mr C during his September 2019 admission
- Mr C discharged himself against medical advice in September as he was feeling better. This went against medical advice. Trust staff consulted with him and explained it would be safer for him to stay in hospital. However, he chose to go home. I have seen evidence the Trust considered detaining Mr C under the Mental Health Act. However, given he had capacity and appeared better, detention was not considered appropriate. There is therefore no evidence of fault.
The offer of a bed
- The records confirm Mr C was offered a bed at the hospital where he was previously admitted. However, the family considered this was too far away. Therefore, it is not the case the Trust did not offer a bed, but that Mr C and his family chose not to accept the offer.
- The offer was made in December and the records indicate that, while waiting for a closer bed to become available, Mr C’s mood improved and he no longer wished to be admitted to hospital. It seems reasonable to have taken Mr C off the waiting list for a bed on the basis he no longer wanted to go to hospital and there is therefore no fault in this decision.
- The Psychiatrist does not appear to have communicated his decision to the family and this is fault. However, Mr B complains that a closer bed was not offered and I do not consider the outcome would have been different had the decision been communicated, especially as Mr C confirmed he no longer wanted to go to hospital. The fault has therefore not caused an injustice.
The Council’s refusal to offer a place at Home A
- The Care Act emphasises the need to involve people in assessing their needs. I appreciate Mr B wanted Mr C to go to a residential placement, ideally Home A, as he was worried Mr C would not cope at home. However, Mr C had capacity. Ms H discussed Mr C’s wishes with him, including the option of a residential placement. Mr C declined as he preferred to return home to his wife. It therefore seems Ms H appropriately involved Mr C in assessing his care needs and there does not appear to be evidence of fault. It would not have been appropriate for Ms H to pursue the option of residential care, whether at Home A or anywhere else when Mr C wanted to return home.
- On the evidence, it appears Mr C did not want to go into residential care. There is no evidence of fault.
- The Trust appears to have properly considered whether to detain Mr C. In doing so it considered whether he was likely to harm himself and the fact he had capacity. There is no evidence of fault.
- While there appears to be some fault in arranging the July respite placement a day late, this does not appear to have caused Mr C an injustice as I cannot conclude, on the evidence, he would not have taken an overdose had he been in respite care at the time.
- The Council also appears, on the evidence, to have appropriately involved Mr C when deciding whether to pursue residential care. There is no evidence of fault.
- I have therefore completed my investigation.
Investigator's decision on behalf of the Ombudsman