Decision : Closed after initial enquiries
Decision date : 16 Mar 2021
The Ombudsman's final decision:
Summary: The Ombudsmen have decided not to investigate a complaint about mental health care being transferred from an NHS Trust to a Council without telling the family. This is because although there appears to have been fault, this has been acknowledged and the organisations have already taken action to put these right. We are therefore unlikely to achieve more by investigating.
- Mrs D complains on behalf of her daughter, Mrs F, about Kent County Council (the Council) and Kent and Medway NHS and Social Care Partnership Trust (the Trust). She is unhappy with some actions taken by the Trust and the Council after Mrs F’s care plan was completed in August 2018.
- Mrs D says there was a ‘clandestine transfer’ of her daughter’s mental health care from the Trust to the Council. She says they were told four times that the problem had been resolved and a Council social worker’s involvement was a mistake, but she does not believe this to be correct.
The Ombudsmen’s role and powers
- 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 would find fault, or the injustice is not significant enough to justify their involvement. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:
- it is unlikely we would find fault, or
- the fault has not caused injustice to the person who complained, or
- the injustice is not significant enough to justify our involvement, or
- it is unlikely we could add to any previous investigation by the Organisations.
(Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered information Mrs D has provided about this complaint. I have also considered the Council’s and the Trust’s complaint responses. Mrs D has also commented on a draft of this decision statement.
What I found
Legal and Administrative context
Mental Health Act Section 117
- Section 117 of the Mental Health Act imposes a joint duty on health and social services to meet the health/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). 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.
- The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and NHS organisations must follow it, unless there are good reasons not to.
- Mrs F had a care plan completed in August 2018. A few months later Mrs F asked for some medication changes and some changes to her care plan. She said she sent a series of written requests to the Trust to seek the removal of the care plan from Mrs F’s records. Mrs D believed the Trust had agreed to do this but later found out the changes did not happen.
- Later in March 2019 a social worker from the Council visited Mrs F. The Council says it arranged this visit in error. This was because it was reorganising its services and it had mistakenly allocated Mrs F to the wrong social care team.
- In July 2019 the Trust arranged a meeting with Mrs F. It invited a social worker from the Council to attend this meeting. Mrs D considered the Trust was trying to transfer Mrs F’s mental health care to the Council.
- Mrs D raised concerns with the Trust and the Council, but had preferred not to make a formal complaint at that point. However, the Trust decided to deal with Mrs D’s concerns through its complaints procedures after receiving written correspondence from Mrs D in September 2019.
- The Trust sent its complaint response letter in October 2019. This addressed Mrs D’s concerns about the care plan, the perceived transfer of care and meeting invitations sent to Council staff. It said it could not remove the care plan from the records, but confirmed the care plan from August 2018 was closed. It explained that this meant it was no longer active and could not be used in the future. It also explained that the Trust and the Council both have legal responsibilities for aftercare planning under the Mental Health Act. It therefore invited Council staff to meetings to ensure a holistic review of Mrs F’s care.
- Mrs D complained to the Council in February 2020. It responded in April 2020 and included a response to her concerns about its social worker visiting in March 2019. Mrs D sent two further emails of complaint to the Council in October 2020 about the perceived transfer of care and the Council’s involvement in Mrs F’s care. It responded in December 2020. It explained that a visit to assess Mrs F by its staff should not have been arranged and was as a result of a misunderstanding following a reorganisation of its services. It said it had mistakenly allocated Mrs F to the wrong team. The Council explained Mrs F’s mental health care had not been transferred to its social care team and confirmed that it would not be.
- In Mrs D’s complaint to the Ombudsmen she said she believes clandestine plans to transfer Mrs F’s mental health care to the Council are still happening and this continues to cause her distress.
- The issues complained about started shortly after completion of the care plan in August 2018. However, Mrs F and Mrs D may not have been aware of the issues about transferring care until July 2019.
- The records show the Trust agreed to review information in Mrs F’s care plan from August 2018 and agreed that some information should be changed. It therefore appears to have acknowledged some failings. It seems there was some delay in how it communicated this to Mrs F and Mrs D, which has caused some distress. However, Mrs F now has a new care plan and the care plan from August 2018 is closed. It is therefore unlikely the Ombudsmen could achieve more by investigating this issue.
- The Trust has provided a reasonable explanation for inviting Council staff to meetings about Mrs F’s care planning. I have seen no evidence to suggest the Trust’s mental health team arranged the meeting as a way to transfer care to the Council. The Trust and the Council both have responsibilities for care planning. It is therefore unlikely the Ombudsmen would find fault by either organisation in having a collaborative approach or sharing relevant information about aftercare planning.
- With regards to the Council starting to plan Mrs F’s transfer between social care teams, it has accepted there was fault in the way it handled matters and this resulted in some confusion about responsibilities. It seems this was partly because of a reorganisation of services.
- Once the Council was aware of the mistake, it did not continue with allocating Mrs F’s care to its social care team. Her mental health care therefore was not transferred to the Council. It has also provided a reasonable explanation that it could not take over provision of Mrs F’s mental health care. This is a health function provided by NHS clinicians.
- I recognise that Mrs F’s mental state meant that uncertainty around her care caused her some distress and anxiety. However, the Council has apologised for the fault and distress this caused. It has also given assurances that Mrs F’s mental health care has not and will not transfer from the Trust to it. This is a proportionate response and it is unlikely investigation by the Ombudsmen would achieve more.
- Mrs D believes clandestine the Trust and the Council continue to discuss transferring the Mrs F’s care. She provided the Ombudsmen with information that she says shows evidence of these plans. This was documentation suggesting the Trust may have involved a Community Interest Group with Mrs F’s case. The Community Interest Group is not connected to the Council. It appears that it provides a service to help provide a link between primary and secondary mental health care. I therefore do not consider this is evidence of the Trust transferring care to the Council or any other organisation. However, if Mrs D or Mrs F have concerns about the Trust involving the Community Interest Group to help with coordination of services, they would need to raise this in the first instance with the Trust.
- The Ombudsmen should not investigate this complaint. This is because although there were failings by the Council and the Trust, there is insufficient evidence of serious harm to Mrs F from the faults and the organisations have already taken action to remedy the complaints. Investigation by the Ombudsmen would not be a proportionate use of our resources and it is unlikely we would achieve more.
Investigator's decision on behalf of the Ombudsman