The Ombudsman's final decision:
Summary: There were some delays and failings in the way a mental health team and social services supported a woman with dementia. It is unlikely these failings changed the course of events but the delays by the Trust caused some avoidable stress in their own right. The Trust will acknowledge these failings and apologise for the impact.
- Ms Y and Mrs Z complain that both Hertfordshire Partnership University NHS Foundation Trust (the Trust) and Hertfordshire County Council (the Council) failed to ensure Mrs X had an allocated Social Worker or a suitable support package from February 2019 to May 2019. This includes concerns:
- That the Trust did not provide adequate support in a timely manner,
- That the Trust did not refer Mrs X to the Council in a timely manner,
- That the Council did not react appropriately to the family’s direct contact with it about Mrs X’s situation, and
- That the Council made an inappropriate decision to close its case after one initial visit to Mrs X.
- Ms Y and Mrs Z said the Council allocated a named Social Worker to Mrs X in May 2019, by which time it was too late.
- In terms of the impact, Ms Y and Mrs Z said if the Trust and Council had provided appropriate support to Mrs X in a timely way she would not have deteriorated as she did. They said this, in turn, could have prevented Mrs X being detained under the Mental Health Act (MHA). Ms Y and Mrs Z said Mrs X was unnecessarily traumatised by the process, as were they in witnessing these events. In addition, Ms Y and Mrs Z said that, without the failings, they would have received support and advice when they needed it and would have been better prepared.
- Ms Y and Mrs Z said the emotional and physical impact on them has been huge. They said they are both now taking medication for depression and Mrs Z is having therapy. Further, Ms Y and Mrs Z said the emotional trauma had exacerbated their own medical problems.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship. (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended) If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused. We might also recommend the organisation takes action to stop the same mistakes happening again.
- When considering complaints, if there is a conflict of evidence we make findings based on the balance of probabilities. This means we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
- The Ombudsmen cannot question whether a decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
- I read the correspondence and supporting evidence Ms Y and Mrs Z sent to the Ombudsmen and spoke to Ms Y on the telephone. I wrote to the Trust and Council to explain what I intended to investigate and to ask for their comments and copies of relevant records. I considered all the comments and records they provided. I also considered relevant legislation and guidance.
- I shared a confidential provisional decision with Ms Y and Mrs Z along with the Trust and the Council and asked for their views on it. I considered the comments I received in response.
What I found
Legislation and guidance
Trust’s Early Memory Diagnosis and Support Service Operational Policy
- The Trust’s Early Memory Diagnosis and Support Service (EMDASS) provides assessments for the diagnosis of dementia. For those people diagnosed with dementia it offers a period of post diagnostic support, provided by the Alzheimer’s Society.
- EMDASS aims to deliver a diagnosis to the individual within 12 weeks of receipt of a referral. This is a key commissioning performance indicator.
- In addition to post diagnosis support from the Alzheimer’s Society, EMDASS can also refer people on to other services if it determines this is decides this would help.
Care Act 2014
- Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment of any adult who appears to need care and support. They must assess anyone, regardless of their finances or whether the council thinks they have eligible needs. The assessment must be of the adult’s needs and how they impact on their wellbeing and the outcomes they want to achieve. It must involve the individual and where appropriate their carer or any other person they might want to be involved.
Mental Capacity Act 2005
- The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
- Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says people should take all practicable steps to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
- The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.
Mental Health Act 1983
- Under the Mental Health Act 1983 (the MHA), when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’. Usually three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in MHA detentions and another doctor. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
- The purpose of detention under section 2 of the MHA is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for a maximum of 28 days.
- This chronology includes key events in this case and does not cover everything that happened.
- In January 2019 Mrs X’s GP referred her to EMDASS. The GP noted that Ms Y and Mrs Z were worried about Mrs X’s poor memory, occasionally aggressive behaviour and signs that she was not taking good care of herself.
- A Consultant Psychiatrist and Memory Nurse assessed Mrs X at the end of March 2019. The Psychiatrist recorded an impression of unspecified dementia and arranged further tests to confirm the particular type of dementia. EMDASS also referred Mrs X for post diagnostic support from the Alzheimer’s Society and offered Mrs Z a carer’s assessment.
- Several days later, in early April 2019, the Memory Nurse made a note of a telephone call with Mrs Z. She noted that Mrs Z asked about care in the future. The Memory Nurse recorded that she advised about community services and said the family could make a self-referral to social services if necessary. Ms Y advised that Mrs Z had at least five conversations with the Memory Nurse, mainly around concerns about Mrs X still driving.
- Ms Y and Mrs Z said Mrs X’s condition continued to worsen and her behaviour became more erratic. They said Mrs X refused to eat or cooperate and was becoming increasingly aggressive. Ms Y and Mrs Z said they regularly called the Memory Nurse and asked for support.
- In early May 2019 Mrs Z spoke to staff at the Trust and said someone needed to see Mrs X urgently. On the next working day the Trust referred Mrs X to social services and asked it to review her needs. The Council allocated the case to a Community Care Officer.
- In the middle of May 2019 EMDASS referred Mrs X to the Specialist Mental Health Team for Older People (SMHTOP).
- The Community Care Officer visited Mrs X in the second half of May. During the visit Mrs X said she was managing at home by herself with some support from Mrs Z. Mrs X said she did not want any interference or help from social services. The Community Care Officer decided Mrs X had the mental capacity to make this choice, although also noted that Mrs X was in denial of her diagnosis. The Council closed its case following this visit on the basis that Mrs X did not need a package of care at that time. Ms Y advised that, following the Community Care Officer’s visit with Mrs X and Mrs Z, he then spent further time with Mrs Z afterwards. Ms Y said that during a long conversation Mrs Z described in detail what Mrs X’s behaviour had been like and how it had been changing.
- Ms Y called the Council the following day and raised concerns about its decision to end its involvement. The Council allocated Mrs X’s case to a Social Worker and agreed to contact SMHTOP to get an update on its work.
- On 2 June 2019 the Social Worker arranged a joint visit to assess Mrs X with SMHTOP. The Social Worker then spoke to Ms Y who noted urgent concerns about Mrs X’s welfare. The Social Worker shared these concerns with the Trust which allocated Mrs X’s case to its Crisis Team the same day.
- Two members of staff from the Crisis Team visited Mrs X later the same day. They concluded that Mrs X needed a psychiatric assessment. A Consultant Psychiatrist visited Mrs X two days later. They noted that Mrs X was a vulnerable adult with a risk of self neglect and potential harm to self and others. In addition, the Psychiatrist said Mrs X lacked insight and capacity to make informed decisions. The Psychiatrist requested a MHA assessment with a view to assessing Mrs X in an inpatient setting. The Psychiatrist said interventions in the community would not be successful as Mrs X was not engaging with services
- An AMHP and two doctors assessed Mrs X under the MHA on 7 June 2019. They decided it was necessary to detain Mrs X under section 2 of the MHA. The Trust admitted Mrs X to an inpatient unit that day.
Conclusion from the complaints process
- The Council did not identify any shortcomings in its actions. It said the first time it became aware of Mrs X was following the referral from the Trust in early May 2019. The Council said it responded to the referral in a timely way. Further, the Council found it had been reasonable to determine that Mrs X had the mental capacity to decline support. The Council said it re-opened the case because of new information Ms Y disclosed. It said the severity of this information warranted urgent action but these details had not been known to it before that time.
- The Trust said it aims to see 80% of service users within 12 weeks of referral. It said it saw Mrs X in 11 weeks and, as such, the assessment took place in reasonable time.
- The Trust acknowledged that, after the assessment in March 2019, it did not refer Mrs Z to Social Services for a carer’s assessment until May 2019, after the family contacted it about this. The Trust apologised ‘that this referral did not take place as initially intended’.
- The Trust did not identify any failings in its decision not to refer Mrs X to social services (following its assessment of her at the end of March 2019). The Trust said it was its staff’s judgement that Mrs X’s needs did not warrant such a referral as she was reasonably able to meet her own needs.
- The Trust said new information came to light at the beginning of May 2019. It said this warranted a referral to social services which it acted on quickly, although it should have made it one business day earlier.
- However, the Trust accepted there were delays in its own actions following the new information it received in early May 2019. It said:
- There was a ten‑day delay in referring the case from EMDASS to SMHTOP
- SMHTOP did not triage the referral quickly enough and later missed an opportunity to follow things up with the family (in late May 2019).
- The Trust said that, as a result, SMHTOP remained unsuccessful in agreeing a plan or scheduling a face-to-face assessment in a timely manner. It accepted that the evidence suggested Mrs X would have benefitted from an earlier psychiatric assessment. The Trust said an earlier assessment would have enabled the team to consider an earlier MHA assessment. The Trust said this, in turn, meant the outcome might have been an earlier hospital admission. It did not suggest any earlier interventions would have prevented the need for Mrs X’s detention.
- The Trust’s EMDASS policy notes that staff can refer people on to other services if necessary but does not mandate it. As noted above, in the Trust’s response to the Ombudsmen it concluded that staff made a conscious decision not to refer Mrs X to social care after it assessed her in late March 2019.
- The notes support this. The plan following the assessment of March 2019 includes an action to refer Mrs Z for a carer’s assessment but it does not include a plan to refer Mrs X for a needs assessment. When Mrs Z asked about future care several days later the Trust did not suggest a referral to social care was in progress. Instead, it noted the family could make its own direct referral for social support if necessary. The plan for a carer’s assessment supports the prospect of the Trust having given thought to how Mrs X’s needs were being met, and the understanding that Mrs Z was supporting her.
- Overall, while others may have made a different decision in the same circumstances, the Trust made its decision after undertaking a reasonable assessment to understand Mrs X’s situation, needs and wishes. Therefore, as there were no failings in the process it followed I cannot criticise the decision it reached which rested on professional judgement.
- I have not found any evidence in the records that the Council were alerted to Mrs X’s case before early May 2019. As such, it was not in a position to act until that time. The Council completed a needs assessment just over two weeks later, which was a reasonable response.
- As noted above, the Council’s initial assessment found Mrs X had the capacity to decline support, but also noted she appeared to be in denial about her diagnosis. When assessing a person’s capacity professionals must consider the impairment of, or disturbance in, the functioning of the person's mind or brain which could affect their ability to make the relevant decision. In this instance it seems probable Mrs X’s denial of her diagnosis and problems would have impacted her ability to understand the risks she faced. As such, while determining a person’s capacity is a matter of judgement, there should have been a more formal assessment here. As such, I have found fault on the part of the Council here, for not exploring and assessing Mrs X’s capacity to decline support more thoroughly.
- However, while I have found fault I do not consider this can be linked to an injustice. If a more formal assessment had found Mrs X lacked capacity further worker would have needed to be done to assess her needs and establish her best interests. When Ms Y called the Council the next day it re-opened its case straight away and allocated it to a Social Worker to undertake further work. The Social Worker, in turn, acted appropriately in contacting the SMHTOP to arrange a joint assessment. On balance, the fault I have noted above did not significantly delay this work. Further, based on the available evidence it seems probable that any attempts to arrange practical support at this time would have been rejected by Mrs X.
- The Trust has already accepted it did not act fast enough after Mrs Z contacted it at the start of May. The failings it has acknowledged amount to fault on its part.
- On balance, the evidence suggests Mrs X was already resistive to outside help by the time the Trust became involved. Due to the progressive nature of Mrs X’s illness, and the unpredictable nature of it, it seems improbable that an earlier intervention by SMHTOP would have prevented the need to arrange a MHA assessment. As such, while I do not dispute how unpleasant and upsetting the sectioning process was for Mrs X, Ms Y and Mrs Z, I cannot say this distress was due to fault. I also cannot ignore that the nature of Mrs X’s illness, and the dramatic changes to her behaviour, would have been upsetting and distressing in and of themselves. Nevertheless, as the Trust has acknowledged, an earlier intervention by SMHTOP may have sped the process up. This, in turn, may have lessened the stress and worry Ms Y and Mrs Z experienced while Mrs X remained in the community.
- Therefore, on balance, while I cannot say the overall outcome would have been different Ms Y and Mrs Z still suffered an avoidable injustice. I have made a recommendation to address this below.
- Within one month of the date of the final decision the Trust will write to Ms Y and Mrs Z to acknowledge the delays in its handling of Mrs X’s case from May 2019. It will acknowledge that this led to extended, avoidable stress and worry for Ms Y and Mrs Z while Mrs X remained in the community. The Trust will apologise for this injustice.
- I have closed this investigation on the basis that there was fault which caused a personal injustice which will be remedied by the action described in this statement.
Investigator’s decision on behalf of the Ombudsmen
Investigator's decision on behalf of the Ombudsman