Decision : Closed after initial enquiries
Decision date : 04 Jan 2021
The Ombudsman's final decision:
Summary: Mr D complained about his adult son’s access to mental health aftercare which should be arranged and provided by the Council and the CCG. He also complained about an error in an NHS Trust’s medical records which was preventing his son receiving the services he was entitled to. We decided not to investigate Mr D’s complaint against the Council and the CCG as the issues have since been resolved. Mr D’s complaint against the NHS Trust can be considered separately by the Parliamentary and Health Service Ombudsman.
- The complainant, who I shall refer to as Mr D, complains on behalf of his adult son, Mr B. Mr D’s previous complaint to the Ombudsmen was about Gloucestershire County Council (the Council), 2gether NHS Foundation Trust (the Trust) and Gloucestershire Clinical Commissioning Group (the CCG) failing to properly consider the aftercare services Mr B needed when he was discharged from hospital under the terms of the Mental Health Act 1983. Mr D now complains about an error in the Trust’s clinical records which is preventing his son receiving services he is entitled from the authorities. He says the Trust has omitted
Mr B's historic diagnosis of upper GI Bleeds/Mallory Wise Tear from his medical records and this should form part of the contingency plan within the support plan.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen provide a free service, but must use public money carefully. They may decide not to start or continue with an investigation if they believe:
- it is unlikely they could add to any previous investigation by the bodies, or (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered information provided by the complainant and I have considered information from the bodies complained about during a previous Ombudsmen’s investigation 17010997. I have also considered law and guidance relevant to this complaint.
What I found
Relevant law and guidance
- Under the terms of the Mental Health Act 1983, a patient who has a mental disorder and refuses treatment may be detained for treatment if certain conditions are met. Prior to doing so, two qualified medical practitioners must assess the patient and agree the patient is suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health and safety and/or safety of others. In conjunction with the opinion of the two medical practitioners, an Approved Mental Health Professional must also agree the legal criteria for detention are met and that admission, considering all the circumstances of the case, is the least restrictive option in the best interests of the person.
- Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as section 117 aftercare.
- Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health and social care needs arising from or related to the persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for.
- During 2014 and 2015 there was a section 75 agreement in place between the Council and the Trust. The Council entered into a section 75 agreement for Joint Commissioning of Adult Mental Health Services. The agreement and framework enabled the Council to align mental health commissioning budgets with NHS Gloucestershire. The agreement also provided a basis for a single contracting process to be developed for health and social care services commissioned from a provider, currently 2gether NHS Foundation Trust.
- Mallory-Weiss syndrome (MWS) is characterised by upper gastrointestinal bleeding (UGIB) from mucosal lacerations in the upper gastrointestinal tract, usually at the gastro-oesophageal junction or gastric cardia. Mallory and Weiss described the syndrome in 1929 in patients retching and vomiting after an alcoholic binge.
- Mr B is diagnosed with an autistic spectrum disorder (ASD), an emotionally unstable personality disorder and a generalised anxiety disorder. The Trust has been involved in Mr B’s care and treatment since 2008. This was due to his problems with excessive use of alcohol and symptoms of his mental health illness such as self-harming and overdosing on medication.
- Mr B went into hospital in September 2010 under the terms of Section 3 of the Mental Health Act 1983. His discharge was scheduled for 2011 and the notes of a professionals meeting dated October 2011 state “a planned discharge was being arranged but… discharged himself against medical advice before this was complete”. This happened after Mr B had become an informal patient.
- Mr B was entitled to S117 at the time of the time of his discharge but the Trust confirmed no specific S117 aftercare plan was completed at the time of his discharge. However, the Trust provided records of CPA reviews completed around the time the discharge occurred. The CPA documentation noted a discharge plan.
- Mr B had further periods in hospital because of problems with his mental health and there is evidence to show he sometimes found it difficult to engage with services.
- Mr B remained under the care of the Trust and had support from the Recovery Team. A previous investigation by the PHSO considered the care and treatment provided by the Trust between 2008 to 2013. I do not intend to revisit the complaints set out in the PHSO’s decision letter to Mr D.
Previous Ombudsmen investigation 17010997
- A previous Ombudsmen investigation reference found fault by the Council, the Trust and the CCG. The Ombudsmen found insufficient evidence to show the authorities named in this complaint did enough to ensure all of Mr B’s S117 aftercare needs were met or at least kept under review in line with the CPA. This caused Mr B injustice as the faults identified had an adverse impact on his general and mental wellbeing. Mr D has also experienced avoidable distress and frustration because of the faults identified.
- The Ombudsmen made recommendations which included agreement for the authorities to:
- ensure Mr B had a robust care and support plan in place which clearly set out his needs and the outcomes he wanted to achieve. The plan needed to identify aftercare services provided under S117 as well as any services provided under other legislation, such as the Care Act 2014. The care and support plan needed to include an agreed safety plan and a contingency plan should there be a breakdown in the arrangements.
- consider whether there was a team which could meet Mr B’s autism spectrum disorder, mental health and social care needs. Alternatively, consideration should be given to whether his existing team could undergo specific autism training to improve practice.
- The Ombudsmen decided the previous investigation in May 2019 on the basis the authorities had agreed to the recommendations.
- The Trust was tasked with coordinating a robust care and support plan which clearly set out the Mr B’s health and social care needs and the outcomes he wanted to receive. The plan should have identified s117 services as well as any other services, for example, Care Act 2014. The care and support plan should have included an agreed safety plan and a contingency plan should there be a breakdown in the arrangements.
- Mr D’s more recent contact with the Ombudsmen suggested a reference to diagnosis of an Upper GI Bleeds/Mallory-Weiss Tear in Mr B’s medical records held by the Trust was causing issues with the plan progressing. This issue has not been previously considered by the Ombudsmen.
- In February 2020, the Ombudsmen wrote to the Trust for information about the Mallory-Weiss tear anticipating this would inform our decision whether to open a new complaint.
- The Trust responded to the Ombudsmen and provided the following information after investigating a new complaint from Mr D:
- October 2015 – Mr B attended Cheltenham General Hospital (CGH) A&E presenting with potential symptoms of upper gastro-intestinal disease.
- the next day the doctor who reviewed Mr B contacted one of the Trust’s doctors to discuss Mr B’s presentation. The Trust said its records show during that telephone conversation, both doctors discussed the possibility the possibility of Mr B’s symptoms being associated with him having experienced a Mallory-Weiss tear.
- Mr B did not go on to have any further investigation, for example, an endoscopy which could have identified whether his symptoms were due to a Malloy-Weiss tear or something else. Mr B was then discharged a few days later.
- the discussion was recorded in the Mr B’s psychiatric health records.
- a Consultant Psychiatrist reviewed the Mr B’s care plan in August 2018 and wrote to the Gastroenterology Department at CGH. The Consultant asked about the risks of Mr B experiencing further upper gastro-intestinal symptoms if he consumed alcohol.
- the Gastroenterology Department replied and said Mr B had had only one endoscopy in August 2012 at CGH and this did not show signs of a
- based on this advice the Trust updated Mr B’s clinical records to reflect that he did not have a history of experiencing a Mallory-Weiss tear.
- No information has been deleted from Mr B’s records because of the update.
- there is information recorded in Mr B’s health records indicating that he had experienced a Mallory-Weiss tear; however, this information was recorded as fact in error and not based on diagnostic findings following the requisite specialist investigations.
Resolution meeting with the Trust
- Mr D and Mr B met with a representative of the Trust in October 2020. The Trust then wrote to him in November 2020 with the outcome of the meeting.
- Mr D said both he and Mr B were happy with the outcome of the meeting as this had addressed most of their ongoing complaints. The issue which remains relates to the Trust’s response to the upper GI bleeds.
- The issues Mr D complained about have been resolved in the main and therefore the Ombudsmen should not start an investigation into the actions of the Council and the CCG.
- The complaint regarding Mr B’s diagnosis is not resolved but this should be considered separately by the Parliamentary and Health Service Ombudsman.
- The matters Mr D complained about have been resolved. The unresolved part of Mr D’s complaint should be considered by the Parliamentary and Health Service Ombudsman separately.
Investigator's decision on behalf of the Ombudsman