Summary: Tees, Esk and Wear Valleys NHS Foundation Trust clearly communicated Mr P’s dementia diagnosis but did not develop a care and support plan for him. We also consider Durham County Council’s poor communication with Mr P’s wife, Mrs P, about his care and support leaves her uncertain if Mr P would have received different care and support before he died.

The complaint

1. Mrs P complains about the actions of Durham County Council (the Council) and Tees, Esk and Wear Valleys NHS Foundation Trust (the Trust) on behalf of her deceased husband, Mr P. She complains about:
• The Trust’s poor communication of her husband’s dementia diagnosis.
• The Council and Trust’s lack of support following that diagnosis. Specially, the way a Social Worker decided to move her husband to an intermediate care placement, rather than provide overnight care for him.
• The way the Trust and the Council decided to detain her husband under section 2 of the Mental Health Act 1983. She says there was little communication with her then.
2. Mrs P says the issues above caused her significant distress and she suffered carer strain from the lack of support for her husband.
3. Mrs P would like the Council and Trust to make changes to their procedures, and carry out training, so similar fault does not happen to others.

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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 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).
6. 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.
7. 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. 
8. We investigate complaints of injustice caused by maladministration and service failure. I have used the word fault to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
9. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services by people and organisations specified in the Health Service Commissioners Act 1993. When doctors make recommendations under sections 2, 3 or 4 of the Mental Health Act 1983 (MHA), they are acting under powers which have been given to them under the MHA. They are acting as individuals and not on behalf of the NHS. This means we cannot investigate complaints about their actions and recommendations. (Health Service Commissioners Act 1993, sections 2, 2A, 2B and 3)
10. 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

11. I considered the information Mrs P and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
12. Mrs P 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

13. In September 2020, a counselling service in Durham referred Mr P to the Trust’s Mental Health Service for Older People (MHSOP). The Counsellor said Mr P suffered low mood, anger, and physical issues. Mr P agreed with the referral.
14. In October 2020, a Community Psychiatric Nurse (CPN) for MHSOP assessed Mr P. The CPN noted that Mr P most likely had cognitive problems which affected mood and functioning. Mrs P said she felt she was becoming her husband’s carer, which she struggled with. The CPN offered to refer Mr P and Mrs P to the Council for a Care Act assessment and carers assessment respectively. They both declined the referral. Mr P also declined an assessment by an Occupational Therapist. The CPN recommended Mrs P take breaks when supporting Mr P.
15. On 23 December 2020 a Consultant Psychiatrist (the Psychiatrist) diagnosed Mr P with mild mixed Alzheimer’s Disease and Vascular Dementia based on their clinical observations and Mr P’s cognitive decline. The Psychiatrist said: “I explained the diagnosis in detail and gave written information leaflets on dementia, Alzheimer’s dementia and Vascular dementia, LPA [lasting power of attorney], and driving with dementia”. Mrs P said she did not have time to read these leaflets. Mr P was open to support from the Trust and wanted to discuss dementia medication. The Psychiatrist:
• Gave Mr P a leaflet for a dementia medication called Donepezil.
• Referred him to a geriatrician for an assessment of his health needs.
• Advised Mrs P to contact the local falls team for an assessment of Mr P.
• Referred Mr P for an Occupational Therapist (OT) assessment of Mr P’s functioning post-diagnosis.
• Asked the CPN carry out an electrocardiogram (ECG) to decide which dementia medication would best support Mr P.
16. On 3 January 2021, during the night, a separate Trust in Newcastle (the Newcastle Trust - not subject to this investigation) admitted Mr P after he sought some advice. The Newcastle Trust contacted the Council’s Emergency Duty Team (EDT). The EDT decided Mr P needed a care package when the Newcastle Trust discharged him. The EDT offered to place Mr P in a residential home first which would give Mrs P respite. Mrs P declined that because the admission had made Mr P worse. The EDT referred Mr P for a needs assessment by a Social Worker.
17. The next day a Duty Social Worker told Mr and Mrs P it would refer Mr P to the Council’s Social Care Direct when the Newcastle Trust discharged him. The Newcastle Trust offered to move Mr P to a rehabilitation unit in Durham, but Mrs P declined it. She preferred Mr P to return home but recognised it would be hard. The same day, the Psychiatrist spoke to Mr P’s GP. The Psychiatrist said: “I will therefore request input from his CPN asap post his discharge and maybe an allocation of a support worker to support the couple and social services can refer or MHSOP signpost [Mrs P] for carer support with Durham County carer support service [sic]”. Mrs P later said she never heard of the Carer Support Service.
18. On 6 January, the Newcastle Trust discharged Mr P home, with support from a home care provider (Embracing Care). That support included a carer calling in the morning and evening. The next day the CPN spoke to Mrs P, who said her husband fell within an hour of returning home and contacted the Council’s emergency contact service, Care Connect. That same day the CPN sent Mr P a letter confirming an appointment with an OT in February.
19. On 8 January, Embracing Care referred Mr P to the Council. Mr P’s mobility had worsened, and Mrs P struggled with the carer role. A Duty Social Worker increased Mr P’s care package to two carers and two overnight sits.
20. On 11 January, the Council allocated a Social Worker to Mr P to carry out a needs assessment. The next day, the Social Worker spoke to the CPN and Embracing Care about Mr P. The same day, the CPN visited Mr P. Mrs P told the CPN Mr P had fallen many times. Mr P agreed for the CPN to refer him to the Alzheimer’s Society. But Mrs P asked the CPN to delay the referral as she was busy.
21. On 14 January, the Social Worker spoke to Mr P over the phone and referred him to a respite bed in a residential home.
22. The next day, the Social Worker told Mrs P they had found a bed for Mr P in Cedar Court. Cedar Court asked the Social Worker if district nurses would support Mr P’s diabetes. The Social Worker spoke to a district nurse who agreed to administer Mr P’s insulin. At the same time, Mrs P called Cedar Court and cancelled the placement at Cedar Court. She did not feel Cedar Court could safely administer Mr P’s insulin. Cedar Court relayed that to the Social Worker.
23. Over that weekend, Embracing Care said Mr P had been aggressive and threatened to stab his wife. Mrs P disagreed with this. Rather, Mr P would grab the syringe when she administered his insulin, tell her to step back or he would stab her.
24. On 18 January, Embracing Care told the Social Worker that Mrs P was “at the end of her tether” but refusing respite. The Social Worker and CPN tried to contact Mrs P but could not get through to her. The CPN and an Advance Practice Nurse (APN) both visited Mr and Mrs P. They were angry, upset and felt let down by different services but were grateful for the welfare check. They told the CPN they were not answering the phone that day and wished to be left alone. Mrs P reiterated she needed overnight carers and more support during the day. She did not want to deal with the Social Worker anymore. The CPN encouraged them to call her if they needed support.
25. The Social Worker tried speaking to Mrs P on 20 January, but Mrs P refused to speak to her. The Social Worker told their Manager about Mr P’s behaviour toward Mrs P. The Social Worker arranged for a Duty Social Worker to call Mrs P. They spoke that afternoon. Mrs P said she only wanted overnight carers and was tired of calls from the Council. The Duty Social Worker asked if Mrs P would reconsider a respite placement. She had concerns who would administer Mr P’s insulin, and he would “wreck the home and himself”. Mr P agreed his and his wife’s behaviour was unacceptable. The Duty Social Worker suggested district nurses administer Mr P’s insulin at home, and he said this would be helpful. But Mrs P did not agree. The Duty Social Worker also offered more support during the day, and he said this would give his wife more respite. Mrs P reiterated her need for overnight carers as she needed more sleep.
26. The next day, the Social Worker discussed Mrs P’s request with a Manager. They decided it was not appropriate to assess Mr P for overnight carers, because of the risk of Mr P’s aggressive behaviour. The Social Worker updated a Duty CPN. The Duty CPN said they had recently spoken to Mr and Mrs P. Mr P accepted medication for his memory, but Mrs P was concerned about the impacts of side effects.
27. Around 5pm, Mrs P left the home and went to her sister’s house. Embracing Care told the EDT Mr P will need support that evening for his diabetes, dementia and there was a risk of falls. By 7pm, the EDT managed to speak to Mrs P, who repeated her frustrations. The EDT and Embracing Care tried to get overnight support for Mr P. By 8pm, Mrs P returned home.
28. On 22 January, a Duty Social Worker called Mrs P’s sister. Mrs P’s sister said Mr P was controlling and impacting Mrs P’s health and well-being. There were many calls that day expressing concerns about Mr P’s behaviour and Mrs P’s welfare. Around 3pm, a Duty CPN referred Mr P for an urgent Mental Health Act assessment. A Duty Social Worker confirmed that to Mrs P’s brother.
29. Around 6pm, an Approved Mental Health Professional (AMHP) and two section 12 approved doctors carried out a Mental Health Act (MHA) assessment of Mr P. They decided to detain Mr P under section 2 of the MHA to assess and treat “behavioural and psychological symptoms of mixed dementia”. He could not be treated in the community due to his aggression, the risk of carer stress, self‑neglect and to his physical health. Therefore, he moved to Auckland Park Hospital (the Hospital - part of the Trust). The AMHP noted that Mrs P was unhappy with the decision to detain her husband but agreed with it so she could get some sleep. Mr P transferred to the Hospital by ambulance at 8.30pm.
30. On 25 January, the Social Worker called the Hospital. The Hospital said staff could manage Mr P but his behaviour was changeable. The Social Worker updated Mrs P’s sister. The next day, the Hospital moved Mr P to a different hospital where he died on a respiratory ward.

Analysis

Mr P’s dementia diagnosis

31. The National Institute for Health and Care Excellence’s (NICE) Dementia: assessment, management and support for people living with dementia and their carers (2018) says at diagnosis clinicians should offer oral and written information that explains:
• What their dementia subtype is, and the changes to expect;
• Who is involved in their care and how to contact them; and
• How dementia affects driving.
32. I have considered the Trust’s records when the Psychiatrist diagnosed Mr P with mild mixed Alzheimer’s Disease and Vascular Dementia on 23 December 2020. I consider the Psychiatrist clearly communicated the diagnosis to Mr P. The Psychiatrist noted: “I explained the diagnosis in detail and gave written information leaflets on dementia, Alzheimer’s dementia and Vascular dementia, LPA [lasting power of attorney], and driving with dementia”.
33. I consider those leaflets provide a robust explanation about each subject. Overall, I am satisfied the Psychiatrist clearly communicated the dementia diagnosis to Mr and Mrs P in line with the NICE guidance.

The Trust’s support following Mr P’s dementia diagnosis

34. NICE’s 2018 dementia guidance also states how clinicians should support and manage people who have been diagnosed with dementia.
35. I have considered the Trust’s medical records and the support offered to Mr P after the diagnosis.
36. The NICE guidance states that people living with dementia should have someone responsible for coordinating their care. The Trust told me that while the Psychiatrist oversaw Mr P’s care, the CPN was responsible for coordinating it. On the whole, I am satisfied the Psychiatrist and CPN provided appropriate support to Mr P after his diagnosis. They appropriately reviewed him, placed him on a dementia treatment pathway and involved him in discussions about his support, including medication.
37. However, the NICE guidance states clinicians should develop, agree, and review a care and support plan with the person and their carers. This is so they can record progress towards set objectives. The clinician should also share the plan with the person and their carer.
38. I have not seen any evidence the Psychiatrist or CPN produced a formal document as described above. Instead, the Psychiatrist developed a management plan following the 23 December 2020 home visit. I consider the management plan was appropriate to support Mr P’s dementia related needs. However, the lack of a care and support plan was fault. While I do not consider that fault had any impact to Mr P, there could be a potential injustice to others. Therefore, the Trust should take further action to put right that injustice.
39. The NICE guidance also states that clinicians should provide tailored support to carers. That includes advising them of their right to a carer assessment, and an assessment for respite.
40. I appreciate Mr and Mrs P refused Council support on 15 October. But I asked the Psychiatrist why they did not explore that again on 23 December. They said they referred Mr P for an OT assessment first, to better understand Mr P’s needs and what support they would both need. The Psychiatrist told me the hope was that the OT assessment would highlight to Mr and Mrs P their need for support from the Council. Also, the Psychiatrist said they were trying to develop a rapport with Mr and Mrs P then, and felt it was important not to impose services on them. Considering the evidence and the Psychiatrist’s comments, I do not consider they acted with fault. Mrs P consistently said she was overwhelmed by the number of organisations involved. So, I understand why they decided to use the OT assessment as a gateway for potential further support.
41. The Psychiatrist told me, after 4 January 2021, they asked the CPN to offer Mr and Mrs P support from the Council. I have considered the CPN’s records, and the CPN did not relay that offer to Mr and Mrs P. It was clear from the CPN’s discussion with Mrs P that she would most likely struggle with Mr P at home. I am persuaded the CPN acted with fault. But I do not consider there was any injustice to Mrs P. On the balance of probabilities, Mrs P would have refused any referral for support from the Council. Mrs P had consistently refused support as a carer, including on 4 January (from the EDT).

The Council’s support following Mr P’s dementia diagnosis

42. Mrs P’s main concern with the Council was that her husband should have received overnight support to manage his behaviour.
43. The Council’s records showed Mr P’s behaviour at night was causing distress to Mrs P. Mrs P first raised the problem to the Council on 8 January 2021, soon after Mr P returned home. The Council provided overnight carers for 8 and 9 January but refused to put more in place due to the risk posed by Mr P’s aggressive behaviour. Rather, it said an intermediate care placement (at Cedar Court) for six weeks would have improved Mr P’s mobility and given Mrs P respite as his carer. Therefore, that support would have met both Mr P and Mrs P’s needs.
44. I have considered if the Council made its decision with fault. I cannot say its decision was right or wrong.
45. I am satisfied the intermediate care placement would have met both Mr P and Mrs P’s needs. Mrs P was clearly in need of some respite then, especially at night. I also understand how that placement at Cedar Court would have helped improve Mr P’s mobility and reduce his risk of further falls. I do not consider the Council acted with fault by offering the placement at Cedar Court.
46. That placement fell through on 15 January. Mrs P said Cedar Court told her it was not a nursing home and could not administer Mr P’s insulin. Mrs P said the Social Worker has not “done her homework”.
47. I disagree. The Council’s social care records show the Social Worker had considered Mr P’s diabetes. The Social Worker spoke to Mr P’s GP, who said district nurses could administer Mr P’s insulin when he moved to Cedar Court. The Social Worker later arranged for district nurses to support Mr P at Cedar Court. That was good practice.
48. I have not seen any evidence the Social Worker told Mrs P who would administer Mr P’s insulin at Cedar Court. If the Social Worker communicated that information, Mrs P would not have needed to call Cedar Court to check. I consider the Social Worker’s lack of communication about Mr P’s diabetes was fault. I understand Mrs P was resistant to the Cedar Court placement. But had the Social Worker clearly communicated with Mrs P, Mr P may have moved to Cedar Court on 15 January. Therefore, that leaves Mrs P with a sense of uncertainty if her husband’s care and support would have been different after 15 January.
49. On the evening of 15 January, Embracing Care reported that Mr P threatened to stab Mrs P. Between 15 and 21 January, Mrs P repeatedly asked for overnight carers and would not accept any other offer. By that time, Mr P’s aggression had become a significant concern to Embracing Care and the Social Worker. On 21 January the Social Worker (and her Manager) decided it should not provide overnight carers because of the risk of aggression by Mr P.
50. I consider it was important for the Council to try and explain why it would not provide overnight carers for Mr P. If it did, then Mrs P could have explained why it was important and potentially consider alternatives. Mrs P would have also been able to explain that her husband was warning her he may stab her, not threatening. Instead, the Social Worker asked the CPN to pass that update on, which they did not. The CPN was not responsible for that. I am persuaded the Council missed an opportunity there, which was fault. I understand Mrs P had stopped contact with the Social Worker. However, someone else could have attempted to explain the reasons for not providing overnight carers. Again, that leaves Mrs P with a sense of uncertainty if her husband’s care and support would have been different after 15 January.

The MHA assessment

51. Under the Mental Health Act 1983, 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 Mental Health Act detentions (section 12) and another doctor.
52. The purpose of detention under section 2 of the Mental Health Act 1983 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.
53. An AMHP is a social worker or other professional approved by the local authority to carry out duties under the Act. That includes deciding whether to go ahead with the application to detain the person. An AMHP is acting on behalf of the local authority. This means complaints about an AMHP's actions fall under the jurisdiction of the Ombudsman.
54. The Mental Health Act 1983: Code of Practice (The Code of Practice) says AMHPs may make an application for detention only if they:
• have interviewed the patient in a suitable manner,
• are satisfied that the statutory criteria for detention are met, and
• are satisfied that, in all the circumstances of the case, detention in hospital is the most appropriate way of providing the care and medical treatment the patient needs.
55. The Code of Practice says AMHPs must “take such steps as are practicable” to inform the nearest relative that an application to detain under Section 2 is to be, or has been, made. Also, "[when] consulting nearest relatives AMHPs should, where possible:
• ascertain the nearest relative's views about both the patient's needs and the nearest relative's own needs in relation to the patient;
• inform the nearest relative of the reasons for considering an application for detention and what the effects of such an application would be; and
• inform the nearest relative of their role and rights under the Act."
56. Mrs P said the AMHP treated Mr P in a cold and impersonal way. Due to the lack of independent witnesses, even on the balance of probabilities, I cannot say how the AMHP spoke to Mr and Mrs P during the MHA assessment on 22 January 2021.
57. Mrs P said the AMHP did not discuss other options for Mr P before the MHA assessment.
58. The Council said the referral for a MHA assessment was urgent so the AMHP could not discuss the situation with Mrs P (as the nearest relative) before the assessment began. It added it tried to engage with Mrs P during the assessment, but she was upset and distressed, which impacted their communication. After the assessment, the AMHP advised Mrs P of her rights to appeal to discharge Mr P and explained the process of moving Mr P to a hospital.
59. I consider the AMHP acted appropriately on 22 January. I will explain why. The Code of Practice does not specifically state AHMPs need to discuss the MHA assessment and its implications before. I do not consider the AMHP acted with fault by not talking to Mrs P about the MHA assessment earlier.
60. I have reviewed the AMHP’s assessment of Mr P. That assessment included a robust discussion with Mrs P, which included her views, Mr P’s and her own needs. The AMHP explained why she would apply to detain Mr P and the effect it could have. The AMHP also explained Mrs P’s rights under the Act while they waited for the ambulance to transport Mr P to the Hospital. I am satisfied the AMHP carried out the assessment in line with the Code of Practice, and do not find they acted with fault.
61. As nearest relative, Mrs P could have appealed the AMHP’s decision to detain her husband under section. The AMHP noted: “With regards to the issue of [Mr P] being detained, [Mrs P] seemed unhappy with this but appeared to accept that it was the only way that he could be taken to hospital. At one point she stated that she just needed him to go so that she could get some sleep”. Therefore, I am persuaded that Mrs P most likely agreed with the decision to detain Mr P under section 2.
62. I have explained in paragraph nine why I cannot investigate the actions of the Trust’s section 12 approved doctors during the 22 January MHA assessment.

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Agreed actions

63. Within four weeks, the Council should apologise to Mrs P and pay her £200 to recognise the uncertainty caused by its faults.
64. Within eight weeks, the Council should ensure relevant staff are aware of the importance of effective communication with services users and carers, regarding decisions about their care and support.
65. Within eight weeks, the Trust should ensure relevant staff are made aware of the importance of developing care and support plans to manage people’s dementia related needs. Also, if staff decide a care and support plan is not necessary, then they should be recording that, and explaining why.

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Final decision

66. I consider the Trust appropriately communicated Mr P’s dementia diagnosis. However, it should have developed a care and support plan for Mr P.
67. I have not found fault with the Council’s decision to not provide overnight care to Mr P, but it should have communicated the reason why to Mrs P. It should have also clearly communicated who would administer Mr P’s insulin before the proposed move to Cedar Court.
68. I have not found fault with the AMHP’s actions during the MHA assessment.

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Investigator's decision on behalf of the Ombudsman