Tees, Esk and Wear Valleys NHS Foundation Trust (20 009 115a)

Category : Health > Mental health services

Decision : Upheld

Decision date : 07 Sep 2021

The Ombudsman's final decision:

Summary: Durham County Council correctly charged Mr A for his social care support when his circumstances changed. Tees, Esk and Wear Valleys NHS Foundation Trust missed the opportunity to reassess Mr A’s section 117 aftercare needs after that time. That fault caused Mr A uncertainty. The Trust should apologise to Mr A and reassess his section 117 aftercare needs.

The complaint

  1. The complainant, whom I shall call Mr A, says that after April 2019, Durham County Council (the Council) should have considered his domiciliary care under his section 117 aftercare, because that support met his social care and mental health needs.
  2. Mr A says between April 2019 and February 2020, Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust) did not support his section 117 aftercare needs. He said he repeatedly sought a review of his mental health needs, but the Trust did not carry one out. The Council and County Durham Clinical Commissioning Group hold the joint duty to arrange section 117 aftercare in Durham.
  3. Mr A also says the Council did not explain what support it was charging him for.
  4. Mr A says the Council and the Trust’s actions caused his severe depression, anxiety and sleep to worsen.
  5. Mr A would like the Council and Trust to recognise and apologise for its actions and reassess his mental health needs.

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What I have investigated

  1. I have investigated paragraphs one and two above. The final section of the statement contains my reasons for not investigating paragraph three.

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The Ombudsmen’s role and powers

  1. 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)
  2. 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.
  3. The Ombudsmen cannot decide what level of care is appropriate and adequate for any individual. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, my investigation has focused on the way that the body made its decision.
  4. 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. 
  5. 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.
  6. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I have considered information provided by Mr A and the organisations. Mr A and the organisations had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Key facts

  1. The Trust runs the Affective Disorder Team which supports people like Mr A, who have various mental health issues. That team includes professionals such as mental health practitioners (who work for the Trust) and social workers (who work the Council). Mr A received support for his mental health as section 117 aftercare.
  2. In late April 2019, Mr A’s family contacted the Trust. Mr A’s wife had left him, and his family said he could not care for himself. A Mental Health Practitioner (the MHP) agreed to assess Mr A’s social care needs later that day with a Social Worker. They decided Mr A needed carers to visit him three times a day to support his personal care and make meals. They confirmed Mr A’s care may be chargeable. They referred Mr A to an Occupational Therapist to develop his independent living skills. They also decided Mr A needed continued support under the Care Programme Approach. The Council arranged for a financial assessment for 16 May 2019.
  3. On 10 May, Mr A told the MHP the carer support should be free under his section 117 aftercare. The MHP disagreed because that supported his social care needs not his mental health. Mr A’s son raised the same issue to the Council’s Finance Team three days later.
  4. On 14 May, the MHP and a Social Worker visited Mr A at home. They answered his questions about the financial assessment. They noted Mr A was verbally aggressive.
  5. The Council cancelled the financial assessment on 16 May.
  6. In June, the MHP again confirmed Mr A’s carer support may be chargeable.
  7. The Council completed the financial assessment on 17 July and decided Mr A should contribute to the care package. The Council assessed just Mr A’s finances as his wife had left him. Mr A and his son disagreed with that decision.
  8. The next day, the MHP and a Duty Worker visited Mr A at home. They noted Mr A was anxious after the financial assessment. Also, they said Mr A was verbally aggressive, swore and shouted at them.
  9. In late July, the Trust wrote to Mr A and said it could not change the result of the Council’s financial assessment.
  10. In mid-August, the Council sent its first invoice to Mr A, which included charges for both his carer support and for a day centre (which he already received free under section 117 aftercare).
  11. In late August, solicitors for Mr A wrote to the Council. It was concerned the Council included a bank account that Mr A did not have, and a pension he does not receive, during the financial assessment. The solicitors sought a reassessment of Mr A’s finances and his section 117 aftercare needs. In response, the Council said it considered details Mr A’s son provided for the financial assessment. However, it would reassess Mr A’s finances.
  12. Mr A did not attend an appointment with the Social Worker on 9 October. He was hesitant to attend the Trust’s building. Mr A’s wife (who had returned) delivered a letter to the Trust. It said Mr A was too unwell to attend. The next day, the Trust’s Affective Disorders Team noted that it would stop visiting Mr A at home due to his verbal aggression to staff in May 2019. A Manager confirmed that to Mr A's wife over the phone. Therefore, Mr A should attend the Trust for future appointments. Mr A’s advocate later sought to meet at the day centre Mr A attends. Everyone agreed to meet there on 23 October.
  13. On 15 October, the Trust told Mr A it would rearrange his appointment. Mr A said his mobility issues stop him from attending their building. The Social Worker refused his request for a home visit. The Social Worker explained why the Trust had stopped home visits to him. Mr A disagreed with their decision.
  14. A week later, the MHP told Mr A’s advocate it cannot meet just with them. Mr A needs to attend so they can assess his section 117 aftercare needs. Therefore, the 23 October meeting did not go ahead.
  15. In mid-December, the MHP and a new Social Worker visited Mr A at home. He was still frustrated at having to pay for his social care support, and also the lack of section 117 aftercare. They noted Mr A was verbally aggressive. They carried out a “care needs assessment”. Mr A also requested a second financial assessment.
  16. In January 2020, the new Social Worker reviewed Mr A. They noted Mr A said he was paranoid, but the Social Worker could find no evidence of that. Mr A requested a mental health medication review. He engaged well in conversation and was appropriately dressed.
  17. The Council carried out a second financial assessment on 5 February. It assessed Mr A and his wife as a couple. It decided Mr A did not need to contribute to his carer support, which it would backdate to April 2019.

Relevant law and guidance

  1. Section 117 of the Mental Health Act imposes a 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). Aftercare services provided in relation to the persons mental disorder under Section 117 cannot be charged for. This is known as section 117 aftercare.
  2. 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). When a patient is in hospital, their care coordinator is the key person responsible for arranging the care and support they will need on discharge.
  3. 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.
  4. A local authority may carry out a needs or carer’s assessment jointly with another body carrying out any other assessment in relation to the person concerned, provided that person agrees. In doing so, the authority may integrate or align assessment processes to better fit around the needs of the individual. An integrated approach may involve working together with relevant professionals on a single assessment. It may also include putting processes in place to ensure that the person is referred for other assessments such as an assessment for after-care needs under the Mental Health Act 1983.
  5. Where more than one agency is assessing a person, they should all work closely together to prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing. Where a person has both health and care and support needs, local authorities and the NHS should work together effectively to deliver a high quality, coordinated assessment. (Care and Support Statutory Guidance 2014)
  6. The Trust’s ‘Procedure for addressing verbal aggression towards staff by patients, carers and relatives’ (2018) details what should happen in the event patients and their families are verbally aggressive towards staff.
  7. Section 3 of the procedure states that, as soon as possible after the initial verbal abuse, staff must:
    • Report the incident of verbal abuse.
    • Complete a report detailing the incident.
    • Record the incident in the patient’s electronic care record.
    • Consider whether the severity of verbal aggression, and if the patient understands their actions.
  8. Section 4 of the procedure states that, as soon as possible following the incident:
    • Staff should discuss the incident with the patient, identifying that their behaviour caused emotional distress to staff.
    • A senior manager should provide a face-to-face opportunity for the patient to review the event and consider their actions. The senior manager should describe the behaviour expected of the patient and produce a written agreement to that effect.
    • If appropriate, the MDT should identify potential support for the patient and develop a behaviour support plan.
    • The line manager should share any behaviour support plan to other staff, so they can respond to any further aggression.
  9. Section 5 of the procedure states that if there are any further episodes of verbal aggression:
    • A MDT should consider taking appropriate further action.
    • A senior manager should meet with the patient and explain if the behaviour continues, the Trust will need to make changes to the way it delivers its service. The senior manager should send a formal warning letter confirming their discussion.
    • Then MDT should decide to move the patients care to an alternative location or consider the risk of discharge should the behaviour persist.

Analysis

Mr A’s domiciliary care

  1. I have reviewed the Social Worker’s assessment of Mr A’s needs in April 2019.
  2. After Mr A’s wife left, he clearly needed further social care support. Therefore, the Social Worker recommended carers visit Mr A to help him with his personal care and making meals. The Social Worker recorded telling Mr A the care may be chargeable.
  3. I consider the Council appropriately charged Mr A for his social care support needs. That support was meeting Mr A’s social care needs (not his section 117 aftercare needs) which would have been chargeable. I do not consider the Council acted with fault.
  4. However, I am not persuaded the Trust fully explored Mr A’s aftercare needs during the April 2019 assessment. I consider this further below.

Mr A’s section 117 aftercare

  1. I consider the Trust missed the opportunity to review Mr A’s aftercare needs during the assessment in April 2019.
  2. Mr A’s wife most likely provided informal support for Mr A’s section 117 aftercare needs. I consider there was a significant enough change in Mr A’s circumstance to justify a review of his aftercare needs.
  3. The social care assessment recommended: “Continued support through CPA/ Community Mental Health Team, monitoring medication, physical health checks and coping techniques”. While the social care assessment did touch on Mr A’s mental health, there should have been a robust assessment of Mr A’s section 117 aftercare needs. That was fault. However, I cannot say, even on the balance of probabilities, what support (if any) the Trust would have offered Mr A had it assessed his aftercare needs after April 2019. That leaves Mr A with a sense of uncertainty, which itself is an injustice. He will never know if the Trust would have provided additional support for his aftercare needs after April 2019.
  4. In late August Mr A’s solicitor specifically requested a reassessment of Mr A’s section 117 aftercare. That reassessment did not happen due to Mr A’s verbal abuse of staff in May. Mr A said he strongly denied being verbally aggressive.
  5. I am not persuaded the Trust acted in line with its own procedure for managing verbal abuse of staff. That impacted the reassessment of Mr A’s section 117 aftercare needs.
  6. I have not seen evidence the Trust followed the steps in Sections 3, 4 and 5 between May and October before it decided to stop home visits. That was not in line with its own procedure, which was fault. I cannot say, even on the balance of probabilities, that if the Trust followed its own procedure, Mr A's behaviour during home visits would have improved. However, it was another missed opportunity for the Trust. Again, that leaves Mr A with a sense of uncertainty. He will never know if the Trust would have reassessed his section 117 aftercare needs sooner, had it followed its own procedure.
  7. The Trust carried out “care needs assessment” in mid-December 2019. However, I am not persuaded that included his section 117 aftercare. It focussed on what he could and could not do, and his physical health. The Trust has not provided any evidence during my investigation to show it formally reassessed Mr A’s section 117 aftercare needs between April 2019 and February 2020.

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Agreed action

  1. Within four weeks of this decision, the Trust should apologise for the uncertainty caused to Mr A due to its faults. It should also reassess Mr A’s section 117 aftercare needs to decide if he has any further needs for support. If the Trust has already reassessed Mr A’s section 117 aftercare needs, it should provide evidence of that.

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Final decision

  1. The Council correctly charged Mr A for his social care support after April 2019 when his circumstances changed. However, between April 2019 and February 2020 the Trust missed the opportunity to formally reassess Mr A’s section 117 aftercare needs.

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Parts of the complaint that I did not investigate

  1. Mr A complains the Council did not clearly explain what support it was charging him for. I do not consider I am likely to find fault. The Council confirmed the cost of charges to Mr A in July 2019, which were the same as listed on his invoice. I appreciate the layout of the invoice was confusing, but Mr A could have called the Council to clarify what support he was paying for when he first received the invoice. Therefore, I have decided not to investigate this complaint.

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Investigator's decision on behalf of the Ombudsman

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