Summary: Mrs M complained on behalf of her son, Mr P, about the actions of Somerset County Council (the Council) and Somerset NHS Foundation Trust (the Trust). The complaint was about the Council’s adult care services and the Trust’s mental health and complaints services. We have upheld elements of the complaint relating to social care needs assessment, claims about Mrs M’s behaviour, and complaint handling. We have not upheld other parts of the complaint. The Council and Trust accept our recommendations. We have therefore completed our investigation.

The complaint

1. Mrs M complains on behalf of her son, Mr P, about the actions of Somerset County Council (the Council) and Somerset NHS Foundation Trust (the Trust). She complains that:
• the Council delayed assessing Mr P’s care needs under the Care Act 2014 between 2017 and 2018, and then decided he was not eligible for care and support;
• between August 2018 and the end of 2019, the Trust and Council failed to provide adequate communication, support and targeted treatment for Mr P’s anorexia nervosa;
• the Trust has made unfounded claims about Mrs M’s behaviour;
• a social worker: incorrectly said two local eating disorder services would not work with Mr P and that he should be an inpatient; failed to keep to agreed regular meetings from March 2019; did not act as a regular point of contact for Mr P;
• the Council failed to progress a safeguarding investigation following Mrs M’s referrals in August 2019;
• the Trust’s complaint handling, in particular the conduct of a complaint resolution meeting in August 2019, was poor and failed to meet Mr P’s need for reasonable adjustments; and
• the care plan put to Mr P at the resolution meeting was not achievable and had no timescale or long-term planning as part of it. One of the options put to Mr P at the meeting turned out to be incorrect.
2. The complainants say that as a result:
• there was a negative impact on Mr P’s psychological and physical health;
• Mr P and Mrs M suffered avoidable distress and have lost faith in the services involved; and
• Mr P and Mrs M were put to avoidable time and expense in independently pursuing assessments and services.
3. Mr P and Mrs M’s desired outcomes are:
• meaningful apologies and an explanation of why and how the faults they complain about happened;
• service improvements to avoid similar problems recurring; and
• a financial remedy.

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The Ombudsmen’s role and powers

4. 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,as amended, and Health Service Commissioners Act 1993, section 18ZA)
5. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(2) and 26A(1), as amended)
6. 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).
7. 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.
8. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).) Parts of Mr P’s complaint to us are ‘late’. However, we have decided to investigate them because he has provided good reasons for complaining late.
9. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened. 
10. We cannot find that an organisation has breached the Equality Act 2010. However, we can find an organisation at fault for failing to take account of its duties under the Equality Act. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
11. If the Ombudsmen are satisfied with the actions or proposed actions of the organisations 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

12. When investigating this complaint, I have considered:
• information Mr P, Mrs M and their solicitor have provided orally and in writing;
• the Council’s and Trust’s written responses to my enquiries;
• the Council’s and Trust’s written records from the period the complaint relates to;
• an audio recording of a meeting between the Trust and the complainants;
• relevant law and related guidance;
• advice from a psychiatrist specialising in eating disorders, who is independent of the Council and Trust; and
• relevant clinical guidance, including: “MARSIPAN: Management of Really Sick Patients with Anorexia Nervosa”; NHS England’s guidance on involving people in their own health and care; “Refocusing the care programme approach”; and National Institute for Health and Care Excellence (NICE) guideline 69.
13. Mr P, Mrs M, their solicitor, the Trust and the Council have had an opportunity to comment on a draft version of this decision. I have considered their comments before making a final decision.

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What I found

Background

14. During the period of this complaint (2017-2019), Mr P had existing diagnoses of conditions including anxiety and anorexia nervosa binge-purge subtype (an eating disorder involving trying to keep body weight as low as possible, regularly binge eating then ‘purging’ by vomiting or getting rid of the food another way). Towards the end of the complaint period, in November 2019, Mr P was diagnosed with PTSD (an anxiety disorder caused by very stressful, frightening or distressing events).
15. Mr P had a long-standing history of involvement with mental health and eating disorder services including periods of specialist inpatient eating disorder treatment which had been unsuccessful. He also had a significant history of self‑harm. By 2018, he had a body mass index (BMI, a measure that uses height and weight to work out if a person’s weight is healthy) of around 13 (a BMI between 18.5 and 24.9 indicates a person is in the healthy weight range) and was binging and purging four times a day. He also:
• had developed a distrust of eating disorder and mental health services;
• was aware his health was very poor and there was a possibility he might die without treatment;
• wanted treatment to help him stop binge and purge behaviours, to improve his quality of life;
• did not want to increase his weight above a BMI of 13 or receive inpatient treatment in an eating disorder unit;
• wanted treatment in a residential placement that would support his preferred treatment plan; and
• said he would agree to medical treatment if his condition deteriorated.
16. In 2017, Mr P and Mrs M had asked the Council for an assessment of his social care needs. In 2018, Mr P approached the Trust about funding eating disorder treatment at a specific private residential placement. The approach was via a nurse he had engaged privately to support him.
17. During 2019, the Trust, with some input from the Council, sought residential treatment that would suit Mr P’s needs and that Mr P would accept.
18. At the end of 2019, Mr P started treatment in a local hospital that is not part of the Trust. He discharged himself after about a week there and did not go on to receive residential treatment through the Trust or the Council. He has since received community treatment privately.

A – Care needs assessment

Relevant law and guidance

19. Section 9 of the Care Act 2014 requires councils to carry out an assessment for any adult who appears to need care and support. They must provide an assessment to all people regardless of whether the council 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.
20. The Council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. Councils should tell the individual when their assessment will take place and keep the person informed throughout the assessment.
21. The Care and Support (Eligibility Criteria) Regulations 2014 (Eligibility Regulations) set out the eligibility threshold for adults with care and support needs. When a council decides a person is or is not eligible for support it must provide the person with a copy of its decision. Where a council decides a person has any eligible needs, it must meet these needs. Eligible needs can arise from (or be related to) physical or mental impairments or illnesses. Councils may not meet eligible needs by providing or arranging for a health service, unless that service is “merely incidental or ancillary” to meeting social care needs and is something the Council could be expected to provide.
22. The Care Act 2014 gives councils a legal responsibility to provide a care and support plan. The care and support plan should consider what needs the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the local authority must involve any carer the adult has.
23. NHS Continuing Healthcare (CHC) is a package of ongoing care arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting. A person’s local NHS Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC. For most people who may be eligible for CHC, the first step in assessment is for a health or social care professional to complete a CHC Checklist. If the completed CHC Checklist indicates the person may be eligible for CHC, the next step is a full multidisciplinary assessment.

What happened

24. In February 2017, Mr P contacted the Council and it accepted it had a duty to assess his care and support needs. Mrs M made a safeguarding referral to the Council in July 2017 because the Council had not yet started the assessment. As she had not had a response, she complained to the Council in February 2018. The Council contacted Mrs M about a week later and asked to speak to Mr P to find out if he still wanted an assessment. As it had not heard from Mr P by June 2018, the Council emailed Mrs M asking her to check with Mr P if he still wanted an assessment. Mrs M replied about a week later confirming Mr P still wanted an assessment. The Council arranged for an assessment and a social worker (SW1) met Mr P and Mrs M on 8 July 2018. However, the Council did not create a written record of this assessment until 10 January 2019. There is no record that the Council shared this assessment with Mr P.
25. When SW1 met Mr P and Mrs M, she noted that:
• they were looking for funding for Mr P to go into a private residential facility (Home 1) because he had lost faith in the mental health system;
• Mrs M requested a CHC checklist;
• SW1 explained that Mr P did not have social care needs and was unlikely to meet the Council’s criteria for care and support; and
• SW1 would discuss Mr P’s request with a manager.
26. SW1 discussed this with her manager, who asked SW1 to contact the community mental health team for information and agreed to meet with Mr P and Mrs M to discuss his options.
27. In August 2018, Mrs M contacted the Council to ask for support with Mr P’s application for special health funding for residential treatment.
28. On 13 September 2018, the Council emailed Mrs M to ask for an update as it had not received an assessment form it had asked Mrs M and Mr P to complete. The email said if they did not reply in a week, the Council would assume they no longer wanted support from its adult care services and would close the case.
29. On 20 September the Council emailed Mrs M to close the case. It said it was not in a position to support Mr P “until Health Professionals have supported him with his primary needs which are his Mental and Medical Health”.
30. In November Mrs M contacted the Council again. The Council told her it could not support Mr P for as long as his mental health issues remained unresolved. This is despite the Eligibility Regulations stating that people can be eligible for support if their needs arise from mental illness.
31. In January 2019, the Council accepted another referral and carried out a joint visit with the Trust on 28 January 2019. The Council’s record of the assessment carried out on that day includes the following information.
• Mr P considered the way he was living at the time was a setback and felt that a residential placement (RP1) “would give him an opportunity to get the binging and purging under control and develop skills that will enable him to reintegrate back into the community”.
• Mr P met the Care Act eligibility criteria on eight of the outcomes.
• In SW2’s professional opinion, “support in the community is not a sustainable option. [Mr P] would benefit from medical intervention as [SW2 believes] there is a risk to life due to the degree of his eating disorder”.
32. On 3 June 2019, SW2 met with Mr P and Mrs M. SW2 went through the social care needs assessment with them.

My findings

33. The Council had a duty to assess Mr P’s social care needs when he requested this in February 2017. It failed to do so until July 2018, despite a safeguarding referral and complaint made by Mrs M. This delay was unjustified and therefore fault.
34. The Council also:
• failed to record the assessment of July 2018 and its outcome until six months later, in January 2019;
• failed to respond appropriately to Mrs M’s request for a CHC checklist;
• incorrectly told Mrs M that it could not support Mr P as long his mental health issues remained unresolved;
• failed to share a written record of its first assessment and eligibility decision with Mr P;
• delayed sharing a written record of its second assessment and eligibility decision with Mr P for about five months; and
• failed to prepare a care plan and meet Mr P’s eligible care needs after concluding in January 2019 that Mr P had eligible care needs.
35. We cannot say, even on balance of probability, exactly what support Mr P would have received if the Council had acted without fault. This is because:
• Mr P’s key aim was to secure residential eating disorder treatment;
• the Council is not permitted to fund health services, so is unlikely to have agreed to commission eating disorder treatment to meet needs identified through a social care needs assessment;
• the Council could have produced a care and support plan that included social care in the community or in a residential placement. Such support would have been subject to a financial assessment and Mr P may have been asked to contribute to the cost; and
• it is unclear to what extent Mr P would have accepted any social care support the Council could have offered and whether he would have agreed to pay towards it.
36. However, Mr P has experienced distressing frustration because of the Council’s faults. He has also missed out on the opportunity to co-produce a care and support plan and receive social care and support to meet his needs. I have recommended personal remedies for Mr P and service improvements at the end of this statement.

B – Communication, support and treatment August 2018 to end of 2019

37. The complainants say the Trust and Council failed to provide adequate communication, support and targeted treatment for Mr P’s anorexia nervosa between August 2018 and the end of 2019. They say the Council and Trust:
• did not give Mr P a care plan for this period;
• did not give Mr P a copy of an assessment of 25 September 2018;
• did not follow the recommendations of an assessment dated 18 December 2018;
• delayed or failed to source acceptable residential treatment options and criticised Mrs M when she did so herself;
• were negative about prospective placements and gave the placements incomplete or incorrect information leading to refusals;
• failed to negotiate a positive outcome with prospective placements or tried to influence their decisions;
• did not clearly explain what “medical stabilisation” meant in Mr P’s case;
• failed to make reasonable adjustments or take Mr P’s needs into account when communicating with him and setting up meetings;
• did not take written information into account when Mr P felt unable to speak; and
• communicated poorly with Mrs M, including not making weekly contact as promised.
38. The reasonable adjustment duty is set out in the Equality Act 2010 and applies to any organisation that carries out a public function. Its aim is that, as far as reasonably possible, people who have disabilities should have the same standard of service as non-disabled people.
39. Service providers have to consider removing or preventing obstacles to people with disabilities accessing their service. If the adjustments are reasonable, they must make them.
40. The duty is ‘anticipatory’. This means service providers cannot wait until a disabled person wants to use their services, but must think in advance about what disabled people with a range of impairments might reasonably need.

Communication – Trust

41. This section deals with the Trust’s communication with Mr P. I have already considered the Council’s communication with Mr P under section A above and will not revisit this here.
42. I have seen a record of one assessment, in September 2018, where Mr P felt unable to speak and chose to write comments down instead. Mr P says he was also unable to speak during another meeting with the Trust. The Trust’s records of the September 2018 assessment include a note stating “Wasn’t an assessment as [Mr P] did not speak. Towards the end of the meeting [Mr P] did write down some comments on a pad he had brought. [Mr P] only seemed interested in getting a place in the private unit…that his nurse had told him about. When I asked if he would consider anything else he shook his head”. The Trust concluded the assessment of September 2018 was not adequate because Mr P felt unable to engage in conversation at the time. The Trust planned to try again, subject to discussion with other professionals. Mr P considers the Trust should have had staff skilled enough to assess him without him needing to speak, and should have done this as a reasonable adjustment for his disability. The Trust was entitled to conclude the assessment was inadequate. The other available records indicate Mr P could speak with professionals, although he sometimes found these interactions distressing. While the Trust may not have shared the record of this assessment attempt with Mr P at the time, Mr P has since had all his records from the Trust.
43. On 13 March 2019, Mrs M told a care coordinator that Mr P had severe anxiety about attending a Trust venue, and asked for adjustments to be made so he did not have to attend a meeting there. Mr P confirmed this. The Trust arranged for Mr P to meet his new consultant psychiatrist at his GP’s surgery, where he felt more comfortable. The Trust acted appropriately and without fault in this respect.
44. Residential eating disorder treatment providers would not admit Mr P for treatment until he had “medical stabilisation”. Medical stabilisation involved Mr P’s medical condition being such that a residential placement would accept him for treatment. This was something for each residential placement to determine and agree with Mr P and the clinicians carrying out the medical stabilisation. The Trust could not give Mr P more detailed information about medical stabilisation, until it had found a hospital and a residential placement that were prepared to offer Mr P treatment and to provide clarity about what they meant by medical stabilisation. I consider there was no fault in the Trust’s communication with Mr P about medical stabilisation, as it was dependent on information from other parties.
45. Mr P’s communication with Trust staff included emails and telephone calls, some of which were abusive. The Trust’s records indicate it responded politely. The Trust has not provided us with details of any policies in place at the time for dealing with abuse towards staff. The records also indicate the Trust did not log all the incidents on Datix (incident reporting and risk management software) or give Mr P clear written expectations about appropriate behaviour. This is despite advice from a senior clinical review panel in April 2019 that the Trust should write to the family setting clear recommendations about expected behaviour and conduct. While this fault did not cause Mr P an injustice, the Trust may wish to review its current approach to ensure it properly records and deals with abuse towards staff.
46. In October 2019, the Trust committed to give Mr P weekly updates. It did not do this. It apologised to Mrs M in December 2019. This is an appropriate way for the Trust to resolve this issue.
47. In December 2019, Mr P asked the Trust to communicate with him via his GP. The Trust explained why it was not appropriate to do so for all communication. However, it agreed to Mr P’s GP attending a meeting instead of Mr P. The Trust was not at fault as it gave reasons for its decision, and it was a decision the Trust was entitled to make.
48. I have seen no evidence that the Trust failed to have regard to the need to make reasonable adjustments to enable Mr P to access its health service and in its communication with him.
49. I have addressed the specific communication issues Mr P and Mrs M have complained about above. I have addressed complaints process issues separately in section F below, and claims the Trust made about Mrs M’s behaviour in section C below. I have also reviewed the Trust’s records for the entire period of the complaint, together with records provided by the complainants. Overall, the records indicate appropriate communication with Mr P.

Support and treatment – Trust

50. This section deals with the Trust’s support and treatment for Mr P, including the treatment plan the Trust offered Mr P at a complaint resolution meeting in August 2019. I have already considered the Council’s support for Mr P under section A above and will not revisit this here.
51. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).
52. Based on the available records, Mr P would have met the criteria for care under the CPA. This would have entailed the Trust putting together a formal community care plan for Mr P and sharing it with him. However, Mr P would not accept most of the community treatment that the Trust could have offered under the CPA. Therefore, although he did not have a care plan, this was not fault by the Trust.
53. In November 2018, Mr P asked the Trust to transfer his mental health and eating disorder care to a neighbouring NHS Trust (Trust B). The Trust agreed to seek a second opinion from Trust B. A doctor from Trust B saw Mr P on 18 December 2018. I have seen no evidence the Trust failed to follow the recommendations of this assessment, which concluded:
• the Trust should consider referring Mr P for a placement at RP1, although RP1 may require Mr P to have a certain BMI and improved physical health before admitting him; and
• Mr P should continue engaging with the Trust and with regular monitoring of his physical health in the meantime.
54. In February 2019, the Trust contacted Trust B’s doctor to discuss the possibility of medical stabilisation prior to admission to RP1.
55. In March 2019, Mr P’s psychiatrist assessed him. The psychiatrist’s record of the assessment says Mr P:
• wanted to maintain his current body weight (BMI usually below 13) but refused to be weighed;
• wanted to stop his binging and purging behaviour through treatment in a residential setting;
• reported he would not consider anything other than the ‘perfect’ option for him; and
• agreed to the Trust looking at what a local provider might be able to offer, with a view to moving on to a longer term placement, with no guarantee that the Trust would be able to offer anything Mr P would accept, or Mr P complying.
56. It would have been within the guidelines for managing and treating eating disorders for the Trust to offer community treatment rather than residential treatment to Mr P. So, it would have been reasonable for the Trust to consider community alternatives before residential treatment. Nevertheless, the Trust accepted that Mr P would not agree to community treatment and sought residential placements for him.
57. During the period I am investigating (August 2018 to the end of 2019), the Trust contacted at least eight providers of residential care treatment, including one that had placements in other parts of the country. The providers were mostly ones suggested by Mr P and Mrs M. The Trust also involved NHS England and the local NHS clinical commissioning group in its search for a suitable placement. For most of this period, the providers contacted by the Trust said either that they did not have a place for Mr P, could not meet his needs, or could not accept the risk of admitting him in his current medical condition. Some residential care providers would have considered admitting Mr P for treatment, but only after medical stabilisation. Mr P was unwilling to accept medical stabilisation as an in-patient in a hospital until late 2019. Taking all this into account, I consider that the delays in sourcing residential treatment were not because of faults by the Trust.
58. The available records indicate appropriate communication and information sharing with potential treatment providers. I have found no evidence that the Trust provided inaccurate information or tried to influence providers to refuse to admit Mr P. The Trust said it contacted one provider at a time until June 2019, and asked Mrs M not to contact providers independently, to avoid confusion. I have not found any fault in this approach.
59. By August 2019, the Trust had decided it needed to stop searching for residential placements that Mr P may want, but may not exist, or may not be suitable for his needs. It decided to check:
• whether RP1 would still accept Mr P if he were medically stable and if so, what it would consider as medically stable; and
• if a local hospital could offer medical stabilisation.
60. The Trust’s plan was to offer this option to Mr P if RP1 and the hospital were in agreement. If not, its plan was to offer its regular community-based approach. The Trust intended to discharge Mr P from its service if he rejected either option.
61. Around the same time, Mr P sent the Trust a detailed care plan he had devised for himself, which presupposed that he would be admitted to a residential treatment unit.
62. At the end of August 2019, the Trust met with Mr P, Mrs M and their solicitor and offered its preferred options. These were:
1. admission to a local hospital, with treatment involving nasogastric (NG) feeding (providing nutrition through a tube passed down through the nose into the stomach), followed by a residential placement;
2. admission to a hospital as above, followed by community treatment; or
3. discharge back to care under Mr P’s GP.
63. Mr P was too distressed to stay in the meeting after seeing the options on offer and left before detailed discussion continued between the Trust, Mrs M and the solicitor. It is clear the Trust’s insistence on a meeting to discuss treatment options was distressing for Mr P. However, this approach was not fault. It can be justified because of the urgency of finding a way to resolve the lack of a clear plan for Mr P’s care and treatment.
64. The options the Trust offered Mr P at the meeting in August 2019 were in line with relevant clinical guidance and standards, other than the plan for hospital treatment to include NG feeding. Guidance applicable at the time says NG feeding should only be considered if oral refeeding (feeding by mouth to restore weight) fails. However, NG feeding is something the hospital was suggesting. The hospital is not part of the Trust. Therefore, there was no fault by the Trust in offering Mr P options a) to c).
65. After the meeting in August 2019, email and telephone discussions continued between the Trust and the complainants. The Trust also continued to work with NHS England and look for possible alternative placements that could offer medical stabilisation and residential treatment.
66. On 17 October 2019, Mrs M emailed the Trust to say that Mr P was not ruling out medical support, but would want to go to a different facility and would not accept NG feeding. By 21 October, records confirm Mr P was interested in the option involving medical stabilisation in hospital followed by residential treatment in RP1. The Trust contacted the local hospital again about a possible admission. The hospital had concerns around NG feeding and a lack of a clear exit strategy to an agreed residential placement, so at the end of October it decided not to accept the referral.
67. The Trust continued to contact possible alternative placements in October and November 2019. Most of the placements contacted would not admit Mr P. On 15 November, a placement I shall call RP2 confirmed it:
• had assessed Mr P;
• was confident it could meet his needs if he could achieve medical stabilisation and transfer straight there from the stabilising unit;
• wanted Mr P to have a BMI of 16, but would consider 15 if his blood test results were acceptable; and
• should have bed availability by the time the Trust found a stabilisation programme.
68. The Trust asked Mr P’s GP to contact the local hospital on 28 November 2019 about a possible admission. Discussions about admission to hospital continued throughout December. On 19 December, the local CCG confirmed that the NHS would fully fund medical stabilisation.
69. The records indicate that the Trust made appropriate efforts to arrange treatment between August and December 2019.
70. On 24 December 2019, Mr P contacted the hospital to advise he was in crisis. The hospital agreed to an admission at that point. Mr P signed a contract committing to engage with treatment and stating the hospital would discharge him if he did not. By 31 December, Mr P had discharged himself from hospital. His BMI was just under 15. RP2 did not consider him medically fit for placement and stated it would be unlikely to accept him for residential placement even with a BMI of 15 “given the medical picture” from the hospital discharge details.
71. In summary, there was no fault in the Trust’s clinical support and treatment for Mr P because:
• there was an acceptable reason why Mr P did not have a care plan;
• the Trust arranged a second opinion from a doctor from Trust B and followed the doctor’s recommendations;
• the Trust made appropriate efforts to source a residential treatment provider that would admit Mr P and provide treatment he considered acceptable; and
• the Trust shared information appropriately with potential providers.

C – Claims about Mrs M

72. Mrs M says the Trust has made unfounded comments about her, including that she sent derogatory emails, that she had “Munchausen’s syndrome by proxy” and that certain providers felt harassed by her. The complainants’ solicitor has told us Trust staff told him Mrs M had Munchausen’s syndrome by proxy.
73. Munchausen’s syndrome by proxy is now known as “fabricated or induced illness” (FII). FII is a rare form of child abuse when a parent or carer exaggerates or deliberately causes symptoms of illness in a child. I have seen no documentary evidence to support the complainants’ concern that the Trust made claims relating to FII or Munchausen’s syndrome by proxy about Mrs M, and the Trust denies doing so. It is difficult to resolve the conflict between the information from the complainants and the Trust. There is not enough evidence for us to uphold this part of the complaint, even on balance of probability.

Events to June 2019

74. The Trust has not shown us any policies for dealing with unwanted behaviour towards staff for the period 2018-2019.
75. As detailed in section B above, Mr P sent an email containing abusive language on 25 April 2019. A Trust psychiatrist forwarded this to a manager and said Mrs M was also abusive and accusatory. The Trust’s records leading up to this time do not support this statement about Mrs M. A care coordinator also sought advice from colleagues in the Trust on 1 May 2019 about “abusive/derogatory constant email contact from mum and [Mr P]”. Again, there is no documentary evidence of abusive emails from Mrs M. The records also do not show “constant email contact” from Mrs M. At this point she had good cause to chase information, for example a copy assessment.
76. A senior clinical review panel meeting on 30 April 2019 recommended that the Trust:
• sent the family a letter setting clear boundaries on expected behaviour and conduct; and
• recorded incidents of abusive behaviour towards staff in Datix.
77. This would have been an appropriate response to the email from Mr P. However, I have seen no records of abusive behaviour from Mrs M at this point. The Trust also did not write to her expressing concern about the frequency or nature of her contact, or explaining how it expected her to behave.
78. The Trust noted that Mrs M and Mr P were laughing and making what it considered derogatory comments about a care coordinator during a telephone meeting on 17 June 2019. Mr P has told us he was not laughing, but distressed and crying and showed us emails from the Trust stating staff at the meeting could not hear him properly. The Trust recorded its concerns in Datix. The Trust was entitled to do this. However, there is no evidence the Trust told the complainants of its concerns and gave them an opportunity to respond.
79. On 27 June 2019, a social worker contacted six possible placements for Mr P. On the same day, Mrs M asked the social worker to contact another provider. The Trust told her that it had previously asked her not to contact providers independently because of the impact on Mr P if things did not work out. There is nothing in the Trust’s records to indicate it had done this. The Trust also did not follow up its request in writing, as recommended by the Panel in April. This was fault.
80. I have seen no documentary evidence supporting the Trust’s references to abusive behaviour from Mrs M up to June 2019. I would have expected to see evidence, since the Trust references abusive emails which should be in the Trust’s records if they existed. The Trust was at fault because:
• it referred to Mrs M behaving in an abusive way, despite there being no records to back this up at the time;
• it failed to give her written expectations for future behaviour, despite deciding it would do so; and
• it did not use a clear policy for dealing with unwanted behaviour towards staff.
81. This has caused avoidable distress and frustration to Mrs M, which the Trust should apologise for. I have also recommended service improvements for the Trust, to avoid similar faults causing problems for others. Details of these are at the end of this statement.

Events July to December 2019

82. The Trust has a record of a telephone call of 10 July 2019 which states Mrs M was “very angry” and “quite aggressive”. Mrs M accepts she was upset but denies being aggressive. The Trust did not follow this up with Mrs M or record the incident on Datix.
83. Mr P’s care coordinator had a telephone conversation with Mrs M on 27 September 2019. His record of the conversation says he explained:
• her behaviour of sending multiple emails and seeking multiple placements could not continue as it would set Mr P up for disappointment, and made it impossible to get to grips with a care plan;
• she and Mr P had some unrealistic expectations and there was a difference between wants and clinical needs; and
• Mrs M needed to allow him and the MDT to “get on with things”.
84. Mrs M and Mr P said they were distrustful of the Trust and seeking to self-fund a placement, so had good reasons for contacting multiple placements independently. The Trust was entitled to put its view to Mrs M and ask her to modify her behaviour. However, the Trust did not follow this up with a written set of expectations about appropriate behaviour, contrary to advice from its Panel in April.
85. In October 2019, the local hospital contacted the Trust following calls from Mrs M about viewing the ward, which its staff found demanding and hostile. The hospital is not part of the Trust. It would have been for the hospital to deal with any inappropriate behaviour towards its staff appropriately. Mrs M denies acting inappropriately and considers the Trust misrepresented the hospital’s concerns. Over the following days, the Trust sent internal emails referring to people feeling harassed by Mrs M’s behaviour. The Trust also emailed Mrs M clarifying she and Mr P could only have access to the ward at the local hospital once medical teams had discussed and agreed a way forward. There is no record of the Trust challenging Mrs M about her behaviour or applying any sort of behaviour standards policy to her.
86. In summary, records for July-December 2019 show behaviour from Mrs M which the Trust and a local hospital found concerning and considered abusive. Mrs M denies acting in an abusive way and considers her actions were understandable in the context of the Trust’s treatment of her and Mr P. The Trust failed to challenge Mrs M over behaviour it found inappropriate or act in accordance with a policy on acceptable behaviour standards. This was fault. While I consider this fault did not cause Mrs M an injustice, the suggested service improvements set out at the end of this statement should help ensure the Trust properly records and deals with challenging and/or abusive behaviour in the future.

D – Issues related to social worker’s actions and availability

87. The complainants say a social worker acting on behalf of the Council (SW2):
• incorrectly said two community eating disorder services would not work with
  Mr P and that he should be an inpatient;
• failed to keep to agreed regular meetings following a call in March 2019; and
• was not permitted to act as a regular point of contact for Mr P.

What happened

88. SW2 became involved with Mr P’s case in January 2019.
89. Mrs M emailed the Trust and SW2 on 11 March 2019. Her email said that during a call the previous week with a care coordinator (CCO1), they had agreed that SW2 could meet with Mr P regularly to try to rebuild trust and support him. The Trust has no record of this call. Mrs M’s email suggested weekly meetings. I have seen no evidence the Trust addressed this request at the time.
90. Mr P continued meeting CCO1, but not every week. In April 2019, Mr P and Mrs M asked for more frequent meetings with someone. The Trust wrote to Mrs M saying that CCO1 would be Mr P’s care coordinator and meet him “on a regular basis”. The following day, CCO1 emailed Mr P to say she could not meet him sooner because of diary conflicts. She also told him that SW2 “remains off work”.
91. SW2’s notes of contacting six eating disorder services on 27 June 2019 say that:
• one service (CS1) offered support in the community, but not to people who are “medically unstable”;
• CS1 did not want to raise Mr P’s expectations because it did not work “with people with this level of risk”; and
• RP2 was a residential service that did not accept NHS patients and would not consider the type of treatment programme Mr P wanted.
92. In August 2019, Mrs M told the Trust and Council that SW2 had committed to meeting Mr P weekly but had withdrawn after being advised by somebody not to go ahead with this. The Trust said this was because it would be better to have a person with a medical background to meet regularly with Mr P.

My findings

93. The two services the complainants are concerned about told the Council in June 2019 that they would not accept Mr P. This was either because they considered Mr P’s condition too risky or because they did not operate a maintenance programme. I have found no evidence the Council gave Mr P and Mrs M incorrect information about what these services told it.
94. While it would have been good practice for the Trust to reply to Mrs M’s email in March 2019 and to clarify what it meant by regular meetings, its omission is not significant enough for a finding of fault. The Trust has explained why SW2 would not be the professional having regular meetings with Mr P. I find no fault with the reasoning for this. I have already found in section B above that there was no fault in the Trust’s clinical support and treatment of Mr P. This includes the frequency of contact with CCO1. I will therefore not revisit the matter in this section.

E – Handling of safeguarding referrals

95. Councils do not have to make enquiries in response to every safeguarding referral. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Section 42, Care Act 2014)
96. Mrs M contacted the Council on 3 and 4 July 2019 to make a safeguarding referral on the grounds that the Council and Trust were putting barriers up to Mr P accessing help and support from suitable residential placements and were preventing Mrs M from contacting potential placements. She was concerned the professionals involved were waiting until Mr P became so ill that he could be detained under the Mental Health Act 1983, rather than working with Mr P to find a solution.
97. Between 5 and 9 July 2019, the Council decided:
• this was not a safeguarding matter because Mr P had not experienced, nor was at risk of, abuse or neglect; and
• the Trust should treat Mrs M’s concerns as a complaint and respond accordingly.
98. Mrs M contacted the Council’s safeguarding team again in early September 2019 after a complaint resolution meeting with the Trust. Mrs M raised further concerns about the following:
• proposed tube feeding even though Mr P could eat and was willing to do so;
• the Trust not attempting to secure funding for specialist treatment over the past year; and
• she considered there was a risk Mr P would either be too scared to accept the proposed plan, or give up hope of getting help, placing him at high risk mentally and physically.
99. The Council again told Mrs M that the safeguarding team was unable to address these issues because they were not neglect or abuse. Mrs M disagreed and considered the Trust’s actions amounted to organisational abuse that could lead to Mr P being at risk of harm.
100. There was no fault in the way the Council decided not to carry out a safeguarding enquiry because it has shown evidence that it:
• considered Mrs M’s concerns;
• acted in accordance with relevant law and guidance;
• provided reasons for its decision; and
• informed Mrs M of the outcome.

F – Complaint handling

101. The complainants say the Trust’s complaint handling, especially the conduct of the complaint resolution meeting of 28 August 2019:
• was poor; and
• failed to meet Mr P’s need for reasonable adjustments.
102. The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 (I shall refer to them as NHS complaint regulations going forward) set out how NHS trusts should investigate and respond to complaints.
103. The Parliamentary and Health Service Ombudsman has published a document called “Principles of Good Complaint Handling”. It details the Ombudsman’s views on acting fairly and proportionately, as well as openness and accountability.
104. I have explained how we consider organisations’ compliance with the reasonable adjustment duty in paragraphs 10 and 38-40 above.

What happened

105. Mrs M asked the Trust to deal with the issues she had reported to the safeguarding teams as complaints on 16 July 2019. The Trust confirmed on 26 July that it would investigate her complaint and respond by 16 September.
106. In August, the Trust proposed a meeting between Mr P, Mrs M, the Head of Mental Health Placements and the Trust’s complaint investigator (who is also the Trust’s Associate Director of Mental Health) to discuss their complaints. Mrs M emailed the Trust to refuse a meeting and asked it to work instead on securing a suitable placement for Mr P. She later clarified that they agreed to meet the complaint investigator but not with the Head of Mental Health Placements. She did not want a meeting to delay the work on securing treatment for Mr P. The Trust arranged a meeting for 20 August 2019.
107. On 15 August 2019, the Trust’s complaint investigator emailed a consultant at a local hospital which is part of another NHS trust. The email:
• contained a brief description of Mr P’s condition and challenges in agreeing treatment; and
• asked whether the consultant would agree in principle to allow the Trust to offer Mr P “the possibility of an admission to [the hospital] to allow for medical stabilisation with a planned discharge to a residential setting”.
108. The consultant replied saying they would consider the Trust’s request. The response includes the following points.
• The gastroenterology (deals with diseases of the stomach and intestines) team occasionally admitted people with eating disorders. This was usually in the context of NG feeding as a lifesaving intervention, as the medical ward was not a therapeutic environment for eating disorders.
• The admission was in the context of a detention under the Mental Health Act. If the patient declines NG feeding, they would need a plan for safe restraint.
109. The Trust’s complaint investigator responded on the same day to say that:
• the admission to hospital “would only be done with a very clear management plan” which Mr P would need to accept or be discharged from the eating disorder service;
• the Trust did not expect at this point that Mr P would accept this offer of treatment; and
• she would ask Mr P’s consultant psychiatrist to talk to the hospital further.
110. The Trust’s complaint investigator also emailed Mr P’s GP. The email said that she had spoken with Mr P’s multidisciplinary team (MDT) and decided that they would present three options to Mr P at a meeting the following week.
111. The Trust rearranged the meeting for 28 August 2019 and:
• reassured the complainants that the presence of its Associate Director of Mental Health and Complaints Manager would ensure the process was impartial; and
• said this was the only option for a meeting. If Mr P and Mrs M decided not to come, the Trust would notify them of the decisions made in their absence.
112. The meeting of 28 August 2019 lasted abut 80 minutes. After about 20 minutes, the Trust’s complaint investigator asked Mr P to stop talking to allow her to finish what she had started to say. Mr P then left. Mrs M and their solicitor continued with the meeting and tried to put Mr P’s views across. The action points from the meeting were for Mr P to respond to the options suggested by the Trust by 2 September 2019, adding if possible anything that he thought would help him to accept any of the options. The Trust was to look into the alternative options presented by Mrs M.
113. During the meeting the Trust’s complaint investigator told the complainants that she had:
• spoken to the consultant at the local district hospital, who was fully aware of Mr P’s medical status and accepting of a planned admission; and
• consulted Mr P’s GP as part of devising the three options presented to Mr P that day.
114. These statements are not supported by the Trust’s records, which indicate:
• the Trust’s complaint investigator had not spoken to the consultant but had sent him an email;
• the consultant had not agreed to an admission, and had rather stated his team would consider an admission, but had concerns; and
• while the Trust’s complaint investigator had emailed Mr P’s GP with a copy of the three options and invited him to contact her, she had done so at a time when she was unlikely to be available to have any further discussion with the GP. Therefore, while she had technically consulted with Mr P’s GP, I consider this was not a meaningful engagement as implied by her description in the meeting with the complainants.
115. On 2 September 2019, Mr P’s solicitor wrote to the Trust. The letter complained about the conduct of the meeting. It also said:
• Mr P was not rejecting Option 1. Option 1 had the ‘bare bones’ of what he wanted, but was missing an identified eating disorder unit and residential placement; and
• Mr P objected to NG feeding.
116. On 5 September 2019, the Trust sent Mrs M a written response to the complaint she submitted at the end of July 2019. In summary, this said:
• from the outset, Mr P wanted treatment aimed at reducing or eliminating his binging and purging while maintaining his BMI at around 13;
• the Trust tried to encourage a safer and more effective intervention involving medical stabilisation, but Mr P declined;
• the Trust fully engaged in looking for placements and provided them with objective information. However, placements’ requests for medical stabilisation and Mr P’s wish not to increase his BMI limited his options for a residential placement;
• the Trust did not influence placements’ decisions to refuse to admit Mr P. However, the Trust had a duty of care to fully inform placements of Mr P’s presentation and risks associated with it;
• while there was no delay by the Trust in contacting and chasing placements, some of them were slow to respond; and
• Mr P’s actions contributed to some delay.
117. The complainants were dissatisfied with this response and complained again. The Trust replied in writing on 30 September and 31 October 2019. It did not uphold the complaint and suggested that Mrs M either:
• contacted the Ombudsman; or
• approached the Trust’s insurers (NHS Resolution) as a ‘Litigant in Person’.

My findings

118. Mr P met the criteria to be considered disabled under the Equality Act 2010. The Trust therefore had a duty to make reasonable adjustments to enable him to use its complaints process. I consider the Trust had regard to this duty and did not act with fault. This is because correspondence between Mrs M and the Trust indicates it:
• was aware of Mr P’s anxiety around meetings and considered this when asking him to attend the meeting;
• explained why it considered it important that he should attend;
• explained it would offer a written response if he did not attend but that this would mean he would not have the opportunity to contribute his views to the meeting;
• allowed him to attend the meeting accompanied by Mrs M and his solicitor; and
• offered to take into account any amendments Mr P wanted to make at the meeting or after it.
119. The complainants were concerned about the fairness of the complaints process. This is especially because one of the senior officers they had complained about was involved in the Trust’s response, including the meeting of August 2019. The officer’s involvement was not contrary to NHS complaint regulations or the Ombudsman’s Principles of Good Complaint Handling. I have seen no evidence that local policy prevented it either. The Trust gave a justification for the officer’s presence at the meeting and included other staff who were not subject to complaints. I therefore consider there was no fault in this respect.
120. I have listened to the Trust’s recording of the meeting of August 2019. The Trust’s records of correspondence with the consultant and GP contradict what the Trust told the complainants at the meeting about its contact with those professionals and about the hospital’s readiness to admit Mr P. The Trust conveyed an inaccurate account of this to the complainants at the meeting, which was contrary to the Ombudsman’s Principles of Good Complaint Handling, and fault. This has caused the complainants a justified sense of frustration and loss of trust, which the Trust should apologise for.

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Agreed actions

121. Within four weeks of my final decision, the Council and Trust will write to Mr P and Mrs M to acknowledge the faults we have identified and apologise for their impact on the complainants. In addition to an apology, the Council will, within four weeks of my decision:
• pay Mr P a symbolic amount of £500 in recognition of the distress and missed opportunity caused by the Council’s flaws in social care assessment and planning;
• offer Mr P an assessment of his social care and support needs; and
• provide Mr P its standard information about social care assessment, support and charging.
122. If Mr P accepts the offer of an assessment of his social care and support needs, the Council should complete the assessment and any actions arising out of it within eight weeks of Mr P agreeing to an assessment. We would not hold the Council to account for any delays by Mr P, or any extensions to this timescale which the Council agrees with Mr P.
123. The Ombudsmen can recommend service improvements to help prevent the faults we have identified causing injustice in the future. The faults we have identified happened up to four years ago. Staff, policies and procedures are likely to have changed by now. Both social care and health services in England have also changed significantly because of the COVID-19 pandemic. Therefore, we will not recommend specific changes to services which might already have changed since Mr P’s experiences. Instead, in the paragraphs below we recommend reviews and, if appropriate, action plans to address any problems that may persist.
124. Within three months of our final decision, the Council will:
• review its processes for assessing adult social care needs and producing care plans to check whether the faults we have identified in section A above are current systemic problems; and
• produce an action plan with timescales to resolve any systemic problems the review identifies.
125. Within three months of our final decision, the Trust will:
• review its policies and procedures for dealing with unwanted or abusive behaviour and how it implements those policies and procedures;
• produce an action plan with timescales to resolve any systemic problems the review identifies; and
• send a copy of the plan and our final decision to the Care Quality Commission and NHS Improvement.
126. The Council and Trust will provide evidence to the Ombudsmen that they have implemented our recommendations.

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Final decision

127. I have upheld parts of the complaint relating to: Mr P’s social care needs assessment; how the Trust recorded views about Mrs M’s behaviour; and a complaint meeting of August 2019. I have not upheld other parts of the complaint. I have completed my investigation because the Council and Trust accepted my recommendations.

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Investigator's decision on behalf of the Ombudsman