Surrey & Borders Partnership NHS Foundation Trust (21 000 865a)

Category : Health > Mental health services

Decision : Upheld

Decision date : 17 Nov 2021

The Ombudsman's final decision:

Summary: The Ombudsmen find there was a failing by a Trust when it was planning a mental health patient’s discharge from hospital. This failing caused avoidable stress to the patient’s relative. The Ombudsmen recommend an apology to address this injustice.

The complaint

  1. Mr Y complains about a failure to arrange or provide suitable section 117 (s117) aftercare services for Ms X (a resident of Oxford) when she was discharged from a Surrey hospital in March 2021.
  2. Mr Y complains professionals did not listen to him at the discharge meeting or afterwards. Specifically, Mr Y complains services in Surrey failed to advise or involve services from Oxford in the s117 planning process.
  3. Mr Y said Ms X left hospital with only minimal aftercare in place – a Community Health Nurse to visit after 72 hours.
  4. In addition, Mr Y complains it took a number of attempts to contact a Social Worker to arrange for a team to visit Ms X. Mr Y said that by the time they visited it was too late.
  5. Mr Y said Ms X had to be readmitted to hospital less than 24 hours after returning to her own home. He said this caused him and other family members acute stress.
  6. In bringing his complaint to the Ombudsmen Mr Y said he would like:
  • recognition there was fault in the process,
  • an explanation for what happened and why, and
  • service improvements to prevent recurrences.

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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, 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)
  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. Section 117 of the Mental Health Act 1983 (the MHA) imposes a duty on health and social services to provide free aftercare services to patients who have been detained under section 3 of the MHA. The duty is on the authorities where the person is ordinarily resident – in this case, Oxford. Under these duties Clinical Commissioning Groups (CCGs) are responsible for the oversight of the person’s aftercare arrangements. CCGs cannot delegate this duty, regardless of the day‑to‑day arrangements for delivering the person’s aftercare. In view of this, the Ombudsmen always include the relevant council and CCG in investigations about s117 aftercare.
  4. 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.
  5. 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))
  6. It is the Ombudsmen’s role to consider complaints in relation to the information that was known to the bodies at the relevant time, and not within the benefit of hindsight. This principle was highlighted by a High Court Judge during a judicial review in 2015. (Paragraphs 38 and 39 of: R (on the application of Rapp) v Parliamentary and Health Service Ombudsman [2015] EWHC 1344 (Admin); Queen's Bench Division, Administrative Court (London))
  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)

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How I considered this complaint

  1. I read the correspondence and supporting evidence Mr Y sent to the Ombudsmen and I spoke to him on the telephone. I wrote to each of the organisations 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.
  2. I shared a draft decision with Mr Y and the organisations and gave an opportunity to provide comments on it. I considered the comments I received, some of which changed my analysis. I wrote a revised draft decision and shared this with Mr Y and the organisations and invited comments on it. I considered the comments I received in response.
  3. In this statement I have referred to:
  • Surrey County Council as ‘Surrey Council’,
  • Surrey and Borders Partnerships NHS Trust as ‘the Trust’,
  • Oxfordshire County Council as ‘Oxfordshire Council’, and
  • Oxfordshire Clinical Commissioning Group as ‘the CCG’.

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What I found

Admission to hospital and detention under the MHA

  1. Ms X lived alone in Oxford. In November 2020, while staying with a relative in Surrey, Ms X went into hospital due to urinary incontinence and drowsiness. There were also concerns Ms X was not eating or drinking and was not looking after herself.
  2. In December 2020 professionals detained Ms X under section 2 of the MHA and then, at the end of the month, under section 3. In the middle of January 2021 the Trust transferred Ms X to an acute assessment and treatment inpatient unit.
  3. Before this time Ms X had not been known to mental health services in Oxford or Surrey.

Referral to Adult Social Care

  1. On the day after Ms X went into the inpatient unit Trust staff referred her to Surrey Council Adult Social Care for a social care assessment, to support her discharge planning. The referral noted that Ms X was from Oxford but had been staying with a relative. The referral gave a brief overview of Ms X’s admission and current needs. The Trust asked Surrey Council to allocate the case to a Care Manager as soon as possible. They noted this would be essential for planning Ms X’s discharge once she was medically fit.
  2. Ms X’s detention under section 3 ended at the beginning of March 2021, although she remained an inpatient of the ward.

Beginning discharge planning

  1. By February 2021 Trust staff noted that Ms X had responded well to treatment and there had been a significant improvement in her mental health. Toward the end of February 2021 Trust professionals determined Ms X was medically fit for discharge planning. Staff noted Ms X was eating and drinking adequately with encouragement and sleeping well overnight. They also noted Ms X moved around the ward on her own and “mobility-wise she has vastly improved”.
  2. Staff spoke to Ms X and discussed the possibility of support at home after she left hospital. Ms X agreed she might need this.

Mobility assessment

  1. During February 2021 Ms X began attending exercise classes on the ward. A Physiotherapist noted she attended willingly, participated well throughout the full sessions and became a regular attendee.
  2. The Physiotherapist completed a mobility assessment in early March 2021. The assessment did not alter the plan to continue planning for Ms X to leave hospital.

Contact between the Surrey Social Worker and a Trust Occupational Therapist

  1. On 10 March 2021 the Surrey Social Worker noted a planned discharge meeting the following day. The Social Worker emailed a Trust Occupational Therapist (OT) and noted he had not been able to complete an assessment of Ms X’s social care needs. The Social Worker asked what the OT’s recommendations were.
  2. The OT replied and said Ms X had made great progress and was now functioning well. The OT said Ms X mobilised independently, was compliant with medication and had formed good relationships with others on the ward. The OT noted some decline in Ms X’s cognition “and this may impact on her usual occupations initially”. The OT said Ms X said she wanted to spend some time with her relative initially before going back to Oxford. The OT said Ms X would likely benefit from initial support from reablement to support her transition home.

Discharge planning meeting

  1. A s117 aftercare planning meeting took place on 11 March 2021. Ms X and Mr Y attended, along with professionals from the Trust and the Surrey Council Social Worker. Ms X said she intended to stay with a relative in Surrey for several days before she returned to her own home in Oxford. The Trust checked Ms X’s relative was happy with this arrangement and she confirmed that she was. The Surrey Council Social Worker concluded that Ms X did not need any social care support when she moved to her relative’s house.
  2. During the meeting Mr Y asked if anyone had contacted Oxfordshire Social Services. The Trust said staff from one of its Community Mental Health Teams (CMHT) would follow-up with Ms X while she was in Surrey. It said they would refer her to Oxfordshire services at a later date.

Reviewing Ms X’s needs in Surrey after she left hospital

  1. Ms X left hospital on 12 March 2021 and went to stay at a relative’s house in Surrey.
  2. Three days later Mr Y called the Surrey Council Social Worker and noted concerns about Ms X living with the relative. Mr Y said he felt Ms X’s return to Oxford should be expedited and said Ms X would need support there to ensure she was safe. On the same day Mr Y contacted Oxfordshire Council Social Services and asked for an assessment of Ms X’s needs.
  3. On the next day an Oxfordshire Council practitioner called Ms X and spoke to her relative. The relative described how Ms X had been and noted what she had been able to do. The Oxfordshire Council practitioner suggested a home support service might be suitable for Ms X when she returned to Oxford. Ms X’s relative agreed it sounded like the right service.
  4. The following day the Surrey Council Social Worker called Ms X’s relative to ask how things had been. The relative gave her view and noted she was not confident of Ms X’s ability to manage when she returned home. The relative also noted that she could not accommodate Ms X for more than a few more days. The Surrey Council Social Worker also spoke to Ms X who agreed she would need some support when she returned home. Ms X and the Surrey Council Social Worker agreed that two calls a day would be appropriate. Surrey Council referred Ms X to Oxfordshire Council’s Home Assessment Reablement Team (HART) later that day.

Planning for Ms X’s return to Oxford

  1. On 18 March 2021, six days after Ms X left hospital, the Surrey Council Social Worker emailed Oxfordshire Council and noted it was Ms X’s intention to return to Oxford on 24 March 2021. He provided an overview of Ms X’s situation and noted she would benefit from support twice a day.
  2. On the same day HART accepted Ms X would be suitable for its service. It planned a first visit for the day after Ms X returned to Oxford.
  3. Also that day, a Community Psychiatric Nurse (CPN) from the Trust wrote to an Older Adult Mental Health Team in Oxford. The CPN noted Ms X would be returning to Oxford on 24 March 2021 and would need follow up from the Older People’s CMHT as well as follow up from social services. The CPN noted they had completed 72-hour and seven-day follow‑ups but a Consultant would need to see Ms X for a four-week review.

Return to Oxford and readmission to hospital

  1. Ms X returned to Oxford on 24 March 2021. On the following day an OT from HART visited Ms X. They found Ms X to be confused and disorientated. The OT concluded she was not safe to be left alone. The OT called an ambulance which took Ms X to hospital.
  2. On 1 April 2021 Oxford professionals determined Ms X should be detained under section 3 of the MHA for treatment. Ms X remained in hospital until she was discharged to a care home in early August 2021.

Complaints to the Trust and Council

  1. Mr Y complained to the Trust and to Surrey Council toward the end of March 2021.
  2. The Trust and Surrey Council replied separately in early April (the Trust did so via a Matron, and not via a formal complaint response). Neither the Trust’s Matron nor Surrey Council identified any failings in the care of Ms X. The Matron said Ms X recovered well during her time as an inpatient and had the capacity to decide her discharge plans.

Relevant legislation and guidance

Section 117 of the MHA

  1. S117 of the MHA requires councils and CCGs to provide free aftercare services to certain people. This includes people who have been discharged from detention in hospital under section 3 of the MHA. They must provide these services from the point the person leaves hospital until the council and CCG decide the person no longer needs them.
  2. S117 does not define what aftercare services are. The MHA Code of Practice (the MHA Code) gives some guidance on this. It details that: “After-care services mean services which have the purposes of meeting a need arising from or related to the patient’s mental disorder and reducing the risk of a deterioration of the patient’s mental condition (and, accordingly, reducing the risk of the patient requiring admission to hospital again for treatment for mental disorder)” (Section 33.3 of the MHA Code).
  3. It also notes that aftercare can “encompass healthcare, social care and employment services, supported accommodation and services to meet the person’s wider social, cultural and spiritual needs” (Section 33.4 of the MHA Code).
  4. The MHA Code also states that aftercare should aim to support people “in regaining or enhancing their skills, or learning new skills, in order to cope with life outside hospital” (Section 33.5 of the MHA Code).

Responsibility for s117 aftercare

  1. At times it can be unclear which CCG and which council are responsible for providing a person’s s117 aftercare.
  2. In 2007 the Department of Health published its guidance Who Pays? Establishing the Responsible Commissioner (the Who Pays Guidance). This aimed to make clear which organisation would be responsible for commissioning a person’s care within the NHS. The Who Pays Guidance included separate guidance about s117 aftercare. In February 2000 the Department of Health issued a Health Service and Local Authority Circular titled After-care under the Mental Health Act 1983: Section 117 After‑Care Services (the Health Circular). In 2011 the Department of Health issued its best practice guidance Ordinary Residence (the Ordinary Residence Guidance).
  3. The Who Pays Guidance, Health Circular and Ordinary Residence Guidance on all set out that responsibility for s117 aftercare rests on where the person was resident before being detained.

Care Programme Approach

  1. The Care Programme Approach (CPA) is an approach used in secondary mental health care. It helps to assess, plan, review and coordinate treatment, care and support for people with complex mental health needs. The MHA Code notes that care planning, including aftercare planning, requires a thorough assessment of the patient’s needs and wishes. It notes this is likely to involve consideration of a range of mental health, physical health and social care factors. In addition, it guides that thorough planning is likely to include “involvement of authorities and agencies in a different area, if the patient is not going to live locally” (Section 34.19 of the MHA Code).

Care Act assessments

  1. As part of the discharge process hospitals need to think about whether it might be unsafe to discharge a patient without measures in place to meet their care and support needs. If it thinks it might be unsafe it must tell the relevant council of that patient, and it should talk to the patient about this. The hospital then needs to consult with the council before deciding what it will do to make sure discharge is safe. (The Care Act 2014, Schedule 3; and, The Care and Support (Discharge of Hospital Patients) Regulations 2014)
  2. Councils must carry out an assessment for any adult when it appears they might need care and support. The assessment must be of the adult’s needs and how they impact on their wellbeing and the results they want to achieve. (Care Act 2014, Sections 9 and 10)
  3. The council must carry out the assessment over a suitable and reasonable timescale considering the urgency of needs and any variation in those needs. There is no set definition of an assessment. The Care and Support Statutory Guidance (the CSSG) notes that: “The nature of the assessment will not always be the same for all people, and depending on the circumstances, it could range from an initial contact or triage process which helps a person with lower needs to access support in their local community, to a more intensive, ongoing process which requires the input of a number of professionals over a longer period of time” (Section 6.4 of the CSSG).
  4. The aim of the assessment is to identify what needs the person may have and what outcomes they are looking to achieve to maintain or improve their wellbeing. This should then inform the response to any identified needs. The response “might range from offering guidance and information to arranging for services to meet those needs” (Section 6.5 of the CSSG).
  5. Councils are guided that “The local authority must involve the person being assessed in the process as they are best placed to judge their own wellbeing” (Section 6.30 of the CSSG).
  6. Councils are encouraged to take a holistic approach to assessment in order to “prevent that person having to undergo a number of assessments at different times, which can be distressing and confusing” (Paragraphs 6.75 to 6.78 of the CSSG).

Mental Capacity

  1. The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Mental Capacity Act Code of Practice (the MCA Code) describe the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision and how to do this.
  2. A person must be presumed to have capacity to make a decision unless it is established that they lack capacity. A person should not be treated as unable to make a decision:
  • because he or she makes an unwise decision,
  • based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour, or
  • before all practicable steps to help the person to do so have been taken without success.

Analysis and findings

  1. In the period between Surrey Council receiving a referral about Ms X and the date of her discharge meeting no one from Surrey Council met Ms X or assessed her needs. There is evidence that the Social Worker had wanted to do so. In an email to an OT the day before the discharge meeting he noted “unfortunately I have not been able to complete my social care assessment”.
  2. However, before the meeting the Social Worker spoke to an OT on the ward about Ms X and got their view on Ms X’s abilities and needs. They also attended the multi-disciplinary discharge meeting. During that meeting professionals asked Ms X for her views on what support she felt she would need when she left hospital. The only thing she asked for was transport. No one at the meeting raised an objection to Ms X leaving hospital without any Council support. Mr Y also contributed to the meeting, and the Social Worker also spoke to Ms X’s relative after the meeting.
  3. The Care and Support Statutory Guidance is clear that there is no set process or format of a social care assessment. It guides that staff should take a proportionate approach and should work closely with other professionals to avoid repetition. The guidance also highlights that the person’s own views should be at the centre of the process. Based on the contemporaneous records and recent correspondence, it appears the Social Worker did not assess Ms X’s needs in the way they had originally planned. However, in the circumstances where:
  • Ms X had expressed her own views on her need for support, and
  • there had been no objection to the plan by any of the multi‑disciplinary team,

it was proportionate and reasonable for the Council to pause its consideration of Ms X’s need for support until she moved in with her relative.

  1. The MHA Code is clear that planning a person’s discharge from hospital and planning their aftercare should be thorough and involve consideration of a range of needs. In this case there is evidence to show that the discharge planning meeting did involve consideration of Ms X’s social and physical needs alongside her mental health needs. In addition, the meeting took account of Ms X’s own views which was appropriate.
  2. However, the MHA Code also suggests that planning should involve professionals from the person’s home area when they are being treated elsewhere. At the time of the discharge meeting, while there was an immediate plan for Ms X to go to her relative’s, it was known that she intended to return to Oxford in the near future. In view of this, Oxfordshire services should have been invited to participate in the discharge planning process. The failure to do this is fault on the part of the Trust.
  3. It is anecdotally known that mental health services across the country are very busy. This being the case there is a realistic possibility that, even with an invite, staff from Oxfordshire mental health services may not have been able to attend this meeting. Nevertheless, an invitation (which could have been confirmed to all in attendance at the s117 meeting) would have provided a tangible reassurance to Ms X and Mr Y that contact had been made and that there were plans to ensure a continuity of care. It would also have made Oxfordshire services aware of Ms X slightly earlier. Therefore, there were consequences to the failure to invite Oxfordshire services to the meeting.
  4. After Ms X left hospital a CPN from the Trust reviewed her twice. In addition, the Surrey Council Social Worker spoke to Ms X, her relative and Mr Y and kept up to date with the situation. The Social Worker also supplied Ms X’s relative with numbers for social care support in Surrey and Oxford in the event she felt like she could not cope. There is no evidence to suggest that Ms X came to harm during this period. Further, from the evidence available from the time, there was nothing in the professionals’ contact with Ms X, her relative or Mr Y, to suggest that Ms X’s subsequent severe deterioration in Oxford should have been foreseen at this time. It follows that I have not found fault with Oxfordshire Council or the CCG as their services responded in good time once they became aware of Ms X’s case.
  5. I have not seen evidence to suggest there were failings in regard to the level of contact and communication services had with Ms X and Mr Y during this period.
  6. I noted above that the failure to invite Oxfordshire services to the s117 meeting meant there was a slight delay in them learning of Ms X. However, both Surrey Council and the Trust contacted Oxfordshire services about Ms X before she returned to Oxford. This contact led to a package of social care support which was in place for Ms X’s return. It also meant Oxfordshire mental health services were aware of Ms X and planning to review her. Therefore, the delay I found did not prevent services putting support in place for Ms X’s return.
  7. It remains that the failing I have identified (in paragraph 61) caused Mr Y frustration and stress which would not have occurred to the same degree had they not happened. This is an injustice. I have made a recommendation below to address this.

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Agreed action

  1. PHSO has issued guidance on Good complaint handling, directed at complaint handlers. This advises that, where organisations find something went wrong, they should provide a suitable apology. It provides a link to the Scottish Public Services Ombudsman’s guidance on How to make a good apology (https://www.spso.org.uk/sites/spso/files/csa/ApologyGuide.pdf). It would be appropriate for the Trust to consider this guidance in relation to the following recommendation.
  2. Within one month of the date of the final decision the Trust should write to Mr Y to:
    • Acknowledge its responsibility for the failing identified in paragraph 61,
    • Apologise for the impact the failing had on Mr Y, in terms of the avoidable frustration and stress it caused,
    • Explain as far as possible why the failing occurred, and
    • Explain whether any learning has been taken from this complaint which has led to (or will lead to) action to prevent recurrences.

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Decision

  1. There was fault by the Trust which caused Mr Y an avoidable injustice. I have completed and closed this investigation on the basis that the action the Trust has agreed to take will provide a suitable remedy.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman

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