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Basildon and Brentwood Clinical Commissioning Group (19 016 759b)

Category : Health > Mental health services

Decision : Upheld

Decision date : 24 May 2021

The Ombudsman's final decision:

Summary: We found a Trust failed to appropriately assess and record the needs of a young woman with entitlement to aftercare services under Section 117 of the Mental Health Act 1983 before discharging her into the community. The Trust will apologise to the complainant and pay a financial remedy in recognition of the impact of this fault on her. The Trust, Council and CCG will also review relevant policies and procedures to prevent similar problems occurring in future.

The complaint

  1. The complainant, who I will call Ms J, is complaining about the care and support provided to her by Essex County Council (the Council), Essex Partnership University NHS Foundation Trust (the Trust) and Basildon and Brentwood Clinical Commissioning Group (the CCG).
  2. Ms J complains that:
  • The Trust failed did not properly consider her diagnosis before discharging her from hospital in September 2018.
  • The Council, CCG and Trust failed to provide her with a clear care plan and discharged her from hospital without appropriate care and support.
  • The Council, Trust and CCG failed to arrange art therapy for her.
  1. Ms J says her premature discharge without support caused her extreme distress. She says she still does not have a clear care plan and remains without appropriate care.
  2. Ms J would like the organisations involved in her care to acknowledge that they failed to provide her with appropriate care and apologise for this. She would also like them to work with her to prepare a written care plan setting out her needs and how these will be met.

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The Ombudsmen’s role and powers

  1. 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).
  2. 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.
  3. 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

  1. In making this final decision, I considered information provided by Ms J and discussed the complaint with her advocate. I also considered information and documentation provided by the Council, Trust and CCG, including the relevant care records. I also considered comments on my draft decision statement from Ms J and the organisations she is complaining about.

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What I found

Relevant legislation and guidance

Mental Health Act 1983

  1. Under the Mental Health Act 1983 (the Mental Health Act), a person with a mental disorder who is considered to be putting their safety, or that of someone else, at risk, they can be detained in hospital against their wishes for treatment.
  2. Section 3 of the Mental Health Act allows for a person to be detained for treatment for a maximum of six months. This can be renewed for a further six months.
  3. A person who has been detained under Section 3 is entitled to free aftercare services under Section 117 of the Mental Health Act. These are services intended to meet any health and social care needs arising from, or related to, the person’s mental disorder. The purpose of these services is to prevent the need for that person to be readmitted to hospital.
  4. The duty to provide, or arrange for the provision of, Section 117 aftercare services rests with the relevant local authority and clinical commissioning group. In Ms J’s case, this is the Council and CCG. The Council and CCG commission the Trust to provide these services on their behalf.
  5. The Mental Health Act Code of Practice (the Code of Practice) provides statutory guidance for mental health professionals on how they should carry out their functions under the Mental Health Act.
  6. Section 33.13 of the Code of Practice says that, before discharging a patient, the responsible clinician should “ensure that the patient’s needs for aftercare have been fully assessed discussed with the patient (and their carers, where appropriate) and addressed in their care plan.”
  7. Section 33.14 of the Code of Practice says that “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.” Aftercare for all patients admitted to hospital for treatment for mental disorder under the Mental Health Act should be planned within the framework of the care programme approach (CPA). This section of the Code of Practice adds that
  8. The CPA is an overarching system for co-ordinating the care of people with mental disorders. Section 34.3 of the Code of Practice emphasises the importance of effective care planning within the CPA framework.
  9. Section 34.10 of Code of Practice says that “the care plan should be prepared in close partnership with the patient from the outset, particularly where it is necessary to manage the process of discharge from hospital and reintegration into the community.” The care plan should set out clearly the patient’s medical nursing, psychological and other needs and how these will be met in practical terms.

Key facts

  1. Ms J has a history of mental illness and has been in long-term contact with local mental health services. This has included a number of hospital admissions. In 2018, Ms J was in receipt of support from the Trust’s Recovery & Wellbeing Team and had an allocated care coordinator.
  2. In June 2018, Ms J was experiencing a deterioration in her mental health. She reported hearing voices telling her to end her life and was noted to be tearful and distressed.
  3. Following an assessment, Ms J was transferred to a private mental health clinic, where she was detained under Section 3 of the Mental Health Act 1983.
  4. Ms J’s Responsible Clinician (the consultant psychiatrist with overall responsibility for Ms J’s treatment under the Mental Health Act) prepared an assessment report for her Mental Health Review Tribunal. He concluded Ms J’s symptoms were best explained by a diagnosis of Schizoaffective Disorder (a mental illness with psychotic and mood symptoms). He recommended she remain under detention for treatment.
  5. On 29 August, Ms J was transferred to a mental health unit under the care of the Trust.
  6. The following day, Ms J was assessed by a consultant psychiatrist. He made a diagnosis of Emotionally Unstable Personality Disorder (EUPD). This is a personality disorder characterised by strong emotions that can lead to patterns of self-destructive behaviour and fluctuating moods.
  7. Ms J was discharged from her section on 4 September, with discharge from the ward planned for later that day. However, before the discharge could take place, Ms J was noted to be expressing suicidal intentions. She was readmitted to the ward as an informal patient. Following a further review later that evening, Ms J was detained under Section 5(2) of the Mental Health Act.
  8. Ms J was discharged the following day with planned follow-up by her care coordinator.

Analysis

Diagnosis

  1. Ms J complains that the Trust failed to properly consider her diagnosis before discharging her from hospital in September 2018. Ms J says the private mental health unit diagnosed her with Schizoaffective Disorder following a comprehensive period of assessment. She says the Responsible Clinician at the Trust had never met her before and based his diagnosis of EUPD on a single brief assessment.
  2. The Trust said the Responsible Clinician felt Ms J’s presentation was consistent with a diagnosis of EUPD. The Trust said this was in keeping with the views of multiple clinicians who had made an EUPD diagnosis over the years.
  3. The case records show Ms J’s diagnosis has been a matter of long-term dispute. Ms J has received diagnoses of both Schizoaffective Disorder and EUPD from various clinicians over course of her care and treatment. I understand Ms J feels strongly that a diagnosis of Schizoaffective Disorder would be more appropriate.
  4. It is important to note that the Ombudsmen cannot diagnose an individual or decide which diagnosis is correct. This is a matter of professional judgement for the clinicians involved. Therefore, my investigation has focused on whether the Trust completed a robust consideration of Ms J’s diagnosis during her hospital admission.
  5. The clinical records show that, when Ms J was first detained under Section 3 in June 2018, she had a recorded diagnosis of EUPD.
  6. Following a period of assessment and review, the Responsible Clinician at the private mental health unit completed an assessment report on 9 August for Ms J’s Mental Health Act Tribunal. He concluded Ms J was suffering from Schizoaffective Disorder and presenting with psychotic symptoms and delusions. The Responsible Clinician concluded that continued detention would be in her best interests. He also noted that it would not be possible to manage the risk to Ms J in the community without a robust support package.
  7. When Ms J was transferred into the care of the Trust on 29 August, she was allocated a new Responsible Clinician. She arrived with a copy of the papers relating to her sectioning. These recorded her diagnosis as EUPD.
  8. The private mental health unit did not initially forward a copy of the assessment report of 9 August that recorded Ms J’s diagnosis as Schizoaffective Disorder. I understand the private mental health unit did subsequently forward a copy of the report. However, this was not available to Ms J’s Responsible Clinician at the Trust when he reviewed her.
  9. The clinical records show the Responsible Clinician reviewed Ms J on 29 August. He also discussed Ms J’s care with her care coordinator. The care coordinator explained that Ms J’s diagnosis had recently been changed from EUPD to Schizoaffective Disorder. However, the Responsible Clinician noted that Ms J was not exhibiting any psychotic symptoms and that her presentation was more consistent with a diagnosis of EUPD.
  10. In the Trust’s response to my enquiries, it explained in further detail the rationale for the diagnosis of EUPD. The Trust explained that the Responsible Clinician reviewed Ms J’s clinical records and spoke to clinicians who had previously been involved in her care. The Trust said that, while there had been some different opinions regarding Ms J’s diagnosis, the “overwhelming majority” had agreed on an EUPD diagnosis.
  11. The Trust said this view was based on the shared observations of various clinicians who had not noted Ms J exhibiting any psychotic symptoms. The Trust said the prevailing view of these clinicians was that Ms J was not formally thought disordered and was not responding to auditory (or other) hallucinations. Rather, the Trust said Ms J presented with rapid mood swings, recurrent self-harm and social interactions reflecting fear of abandonment. The Trust said this presentation was consistent with a diagnosis of EUPD. The Trust said the Responsible Clinician subsequently assessed Ms J and agreed this diagnosis was appropriate.
  12. The Trust’s records show a member of the clinical team attempted, without success, to contact the Responsible Clinician at the private unit to seek his views on Ms J’s diagnosis. The clinician instead emailed the Medical Director of the private unit on 31 August to request further information. The Medical Director did not respond to the Trust’s queries until 5 September. He noted “there is some disagreement with regards to her diagnosis. Her private psychiatrist is going along with a diagnosis of schizoaffective disorder…My own opinion is that she has a primary EUPD.”
  13. The records suggest the Trust did not receive this email until after Ms J had been discharged. Nevertheless, it is clear the Responsible Clinician at the Trust was aware of Ms J’s disputed diagnosis at the time of his assessment.
  14. Taken as a whole, the evidence shows the Responsible Clinician did complete a robust consideration of Ms J’s diagnosis. This included a review of the records, discussions with clinicians who had previously been involved in Ms J’s care and a face-to-face assessment. I found no fault by the Trust on this point, albeit I appreciate Ms J disagrees with the Responsible Clinician’s conclusions.

Care planning

  1. Ms J complained that the Trust failed to provide her with a clear care plan and discharged her without appropriate care and support.
  2. On 30 August, the Responsible Clinician spoke to Ms J’s care coordinator regarding plans for Ms J’s discharge. In his note of the conversation, the care coordinator recorded that the Responsible Clinician “informed me the plan was to discharge [Ms J] next week Tuesday (4 September) and wanted to know what support will be available for her in the community…I suggested it will be a premature [discharge] if [Ms J] is discharged on Tuesday and there is a [likelihood] she will be re-admitted, because that will not give enough time to implement any support.”
  3. I understand a discharge meeting subsequently took place on 4 September. In its complaint response of 6 November 2018, the Trust said “the existence of substantial risks was acknowledged and discussed in detail by the multi-professional team” at the meeting. I was unable to locate a copy of the notes of this meeting within the records the Trust provided. As a result, it is not possible to confirm who attended the meeting or what was discussed.
  4. In his case notes for 4 September, Ms J’s care coordinator noted that, on arriving for the meeting, he was informed that she had already been discharged. Ms J remained on the ward at that time but was unwilling to engage with him for the purposes of completing a care plan.
  5. The clinical records contain a note of a discussion between the ward matron, Ms J and Ms J’s mother that afternoon. The ward matron noted that “they both expressed concern regarding [Ms J] being discharged today without a care plan/treatment plan in place” Ms J’s mother also said that she had not been invited to the discharge meeting.
  6. The Code of Practice emphasises the importance of robust care planning for any person with an entitlement to Section 117 aftercare services. The care plan represents an important record of the person’s Section 117 aftercare needs and how these will be met in the community. The Code of Practice says the care plan should be prepared in partnership with the patient, carers and relevant professionals “in good time” for the person’s discharge from hospital.
  7. The evidence strongly suggests that neither Ms J’s mother, who was her primary carer, nor her care coordinator were substantially involved in the planning for the proposed discharge on 4 September. Indeed, the care coordinator documented his concern that discharge on that date would be premature as this would not allow him time to put care in place for Ms J in the community. The Trust’s handling of the discharge on 4 September was not in keeping with the requirements of the Code of Practice. This was fault.
  8. I am satisfied the decision to discharge Ms J on 4 September did not place her at risk or leave her without appropriate care. This is because the records show Ms J did not actually leave the hospital on that date.
  9. The clinical records show Ms J became very upset when her discharge was discussed. She was noted to have become verbally and physically abusive and threw hot soup on a member of staff. It should be noted that Ms J disputes this account and says she was not physically abusive towards staff. Nevertheless, the evidence suggests the decision to discharge Ms J did cause her significant distress.
  10. The ward matron noted that Ms J “was visibly distressed, shaking and crying, she continued to state that she is going to kill herself and felt let down by the Trust. She had also stated that she felt if she had a clear care plan in place regarding her discharge this would help her to feel safe but this is not in place.”
  11. The ward matron requested an assessment by the Trust’s Crisis Resolution and Home Treatment (CRHT) team to explore whether Ms J would be suitable for home treatment. Two officers from the CRHT team met with Ms J and her mother that afternoon. They noted Ms J continued to express suicidal thoughts and that she described having no control over her actions. They found the “CRHT would not be able to safely manage [Ms J] at home due to the current risks.”
  12. The ward matron noted that “[i]t was felt by the MDT that this is a failed discharge”. She noted that “[a]fter a long discussion with [Ms J] and her mother it was felt that she would go back onto the ward and the nursing team to liaise with the community team to ensure there is a care package in place prior to discharge.” The ward matron arranged for Ms J to be readmitted to the ward as an informal patient.
  13. The ward matron’s notes of 4 September recorded that discharge was delayed so the nursing team could “liaise with the community team to ensure there is a care package in place prior to discharge.” In a care plan the ward matron completed that day, she also noted that Ms J was “[n]ot appropriate for home treatment team due to presenting as high risk of suicide.”
  14. That evening, a duty doctor reviewed Ms J because she was attempting to leave hospital. He noted that she remained distressed and tearful. Ms J admitted having thrown boiling water over her chest shortly before the review. Ms J said she planned to leave the hospital and take her own life. After consultation with a senior doctor, the duty doctor noted “there is a risk that currently cannot be managed in the community” The duty doctor concluded that Ms J’s current presentation and risk of suicide warranted detention under Section 5(2) of the Mental Health Act. This is a section of the Mental Health Act that allows for the temporary detention of patients who are already in hospital.
  15. The multidisciplinary team (including the Responsible Clinician) met to discuss Ms J on 5 September. The notes of the meeting record that Ms J’s “presentation indicates chronic risk of accidental misadventure due to her impulsivity, emotional dysregulation and poor problem-solving skills”. The team felt Ms J’s behaviour the previous day represented an attempt to “sabotage” her discharge. The team concluded that an extended hospital admission would not be helpful and may cause Ms J to become dependent on inpatient services. As a result, the team “decided to put a community care plan in place, to take [Ms J] off section and discharge her.”
  16. Following the multidisciplinary team review, staff prepared a care plan for Ms J. Ms J’s risk of suicide or self-harm was recorded as ‘medium’ and her risk of violence or aggression to others as ‘high’.
  17. I note the multidisciplinary team’s view that Ms J’s behaviour may have been a deliberate attempt to sabotage her discharge on 4 September. I am unable to comment on this view. Nevertheless, the events of that day appear to have represented a significant change in Ms J’s presentation and showed her to be at increased risk of harm. This was reflected in the comments of the CRHT, who felt it would not be possible to safely manage Ms J’s care in the community.
  18. Despite this, I found no detailed assessment of the risk posed to Ms J by discharge back into the community and how this would be managed. The clinical records suggest Ms J was discharged on 5 September with only a planned follow-up visit from her care coordinator. This was the same level of support as had been planned prior to the events of 4 September and suggests little consideration was given to Ms J’s changed presentation. Furthermore, I found no information regarding what care would be provided to Ms J in the event of a crisis or deterioration in her mental health. This was not in keeping with the CPA care planning guidance set out in the Code of Practice. This was fault on the part of the Trust.
  19. Furthermore, I was unable to locate any clear Section 117 documentation within the clinical records. Ms J was eligible to receive free aftercare services due to her detention under Section 3 of the Mental Health Act. The Code of Practice emphasises the importance of clearly recording a person’s Section 117 needs and how these will be met.
  20. Ms J’s eligibility for Section 117 aftercare was not clearly recorded on the care plan. It is similarly unclear clear what, if any, services were to be provided to her under this section. This was contrary to the requirements of the Code of Practice and represents fault by the Trust. This fault was 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 Ms J.
  21. I have considered the impact of this fault on Ms J below.

Care in the community

  1. Ms J complained that she was discharged without appropriate care. She said the Trust failed to arrange funding for her to receive art therapy, despite this having been identified as a care need prior to her discharge from hospital. Ms J said she commenced art therapy with a private therapist on the understanding that funding had been agreed. However, she subsequently found this was not the case.
  2. The clinical records show Ms J first discussed the possibility of art therapy with the discharge coordinator during her hospital admission.
  3. Ms J was discharged on 5 September and returned to live with her parents. The clinical records show Ms J’s care coordinator visited her on 6 September to agree a care plan. This included:
  • a referral to the Trust’s Intensive Outreach Team (IOT – a multidisciplinary team providing intensive support in the community);
  • a referral for art therapy and a music group; and
  • a medication review.
  1. The CRHT assessed Ms J on 8 September. The notes of this assessment record that Ms J felt “angry and traumatised” by the circumstances surrounding her discharge. Ms J’s parents reported that they were struggling to cope in a caring role and felt unsupported by services. The CRHT agreed to provide a short period of care before transferring Ms J back to the care of her care coordinator in the Recovery and Wellbeing Team.
  2. The CRHT visited Ms J again on 9 September. The notes of the visit record that Ms J continued to report hearing voices telling her to harm herself. However, Ms J confirmed that she had no plans to act on these thoughts.
  3. A consultant psychiatrist from the CRHT reviewed Ms J on 10 September. The consultant noted that Ms J was being supported by her parents, who felt the risks associated with her condition were manageable. The consultant also completed a medication review. He found a trial of antipsychotic medication had shown only limited success and recommended that an increase on dosage would not be appropriate. The consultant concluded that Ms J would benefit from support from the IOT as the CRHT was only able to provide short-term crisis support.
  4. Ms J’s care coordinator referred her to the IOT on 20 September. The clinical records show Ms J’s care coordinator and the CRHT continued to support her until her case could be allocated within that team. Ms J’s care subsequently transferred to the IOT in October 2018.
  5. In summary, there is evidence to show the Trust was providing care and support to meet some of Ms J’s assessed care needs. This included input from the IOT, as well as support from the CHRT and Recovery and Wellbeing Team.
  6. However, there is evidence of significant confusion surrounding the provision of art therapy for Ms J.
  7. In its response to Ms J’s complaint, the Trust explained that the care coordinator arranged for Ms J to be assessed by a private art therapist. The Trust said the care coordinator understood this would simply be an assessment, but that Ms J subsequently began working therapeutically with the art therapist. The Trust said that, as soon as the care coordinator found out (on 22 October), he advised that the therapy should stop as funding had not yet been agreed. The Trust acknowledged the care coordinator had not communicated clearly with the art therapist.
  8. I understand the care coordinator’s initial funding application was delayed as he made an error on the application form. This meant the application had to be resubmitted with the correct information. The application was then declined by the funding panel on the basis that the Trust would be able to provide the art therapy service. However, Ms J was unwilling to engage with the Trust’s psychological therapies service. Ms J says this is because the Trust was only offering group-based therapy under the Dialectical Behavioural Therapy (DBT) model, which she says is not beneficial for her.
  9. A further application for funding made by the IOT in 2019 was again declined on the basis that the Trust could provide a service to meet Ms J’s needs.
  10. In my view, some of the confusion around this issue might have been avoided if a robust care plan had been in place at the point of Ms J’s discharge from hospital. This should have identified Ms J’s assessed Section 117 aftercare needs (including art therapy) and set out how, and by whom, these needs would be met.
  11. The National Institute for Health and Care Excellence (NICE) recommends psychological interventions (such as art therapy) as the primary treatment for EUPD. However, the available evidence suggests Ms J does not accept her EUPD diagnosis and remains reluctant to engage with the Trust’s psychological therapies service. This appears to have still been the case when the Trust completed a Section 117 review in October 2020.
  12. It is unclear, therefore, whether Ms J would have received of art therapy sooner even if the Trust had managed the planning of her care in accordance with the Code of Practice.
  13. Nevertheless, the evidence suggests that the lack of detailed care planning caused unnecessary delay and confusion. This in turn resulted in distress and uncertainty for Ms J.

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Agreed actions

Trust

  1. Within one month of my final decision statement, the Trust will write to Ms J to apologise for:
  • Its failure to robustly plan Ms J’s care in accordance with the CPA guidance set out in the Code of Practice prior to her discharge from hospital in September 2018. This includes the Trust’s failure to properly assess and record Ms J’s Section 117 aftercare needs and how these would be met.
  1. The Trust will also pay Ms J £400 in recognition of the distress and uncertainty caused to her by this fault.
  2. Within three months of my final decision statement, if it has not done so already, the Trust will:
  • Work with Ms J to assess her suitability for art therapy. If the Trust Is satisfied this is a suitable therapeutic intervention for Ms J, it should take prompt action to put this service in place.

Trust, Council and CCG

  1. 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 the Code of Practice.
  • 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.
  1. The Trust, Council and CCG will provide the Ombudsmen with evidence that they have completed this work.

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Final decision

  1. I found fault by the Trust with regards to the handling of Ms J discharge from hospital in September 2018.
  2. I also found fault with the Trust’s failure to put a robust care plan in place that clearly recorded Ms J’s Section 117 aftercare needs and how these would be met. This fault was shared by the Council and CCG as the agencies with the statutory duty to provide, or arrange for the provision of, Section 117 aftercare.
  3. The actions the Trust, Council and CCG have agreed to undertake represent a reasonable and proportionate remedy for the injustice caused to Ms J by this fault.
  4. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman

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