Summary: We found fault by a Trust regarding the discharge planning for Mr F, a young man who had been detained under the Mental Health Act 1983. We also found fault by a Council and Integrated Care Board as there was avoidable confusion about which agencies were responsible for the aftercare to which Mr F was entitled. This fault delayed Mr F’s discharge and caused him distress. These organisations will provide Mr F with a financial remedy and act to prevent similar problems occurring in future.

The complaint

1. The complainant, who I will call Mr F, is complaining about the care and treatment provided to him by Manchester City Council (Manchester Council), Doncaster Metropolitan Borough Council (Doncaster Council), Greater Manchester Mental Health NHS Foundation Trust (the Trust) and NHS South Yorkshire Integrated Care Board (the ICB).
2. Mr F complains these organisations failed to make timely and appropriate arrangements for his discharge from hospital. He says they have not arranged suitable accommodation to which he is entitled under Section 117 of the Mental Health Act 1983. Mr F says he has encountered several changes of care coordinator during his admission and has even experienced periods where he did not have an allocated care coordinator.
3. Mr F says his discharge has been delayed by over a year. He says this meant he was denied the opportunity to spend time with his young family. Mr F says this caused him significant distress and affected his mental health. He says his long detention represented a breach of his human rights.
4. Mr F has now been discharged form hospital. However, he would like to receive financial recompense in recognition of the impact the failings in his care had on him.

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The Ombudsmen’s role and powers

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 acts to stop the same mistakes happening again.
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

8. In making my final decision, I considered information provided on Mr F’s behalf by his advocate. I also considered information and records from the organisations Mr F is complaining about, including the clinical records. I invited comments from all parties on my draft decision statement and considered the responses I received.

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What I found

Relevant legislation and guidance

Mental Health Act 1983

9. 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’.
10. 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.
11. Section 3 of the MHA is for the purpose of providing treatment. Detention under Section 3 empowers doctors to detain a patient for a maximum of six months. The detention under Section 3 can be renewed for another six months.
12. Any patient who has been detained under certain qualifying sections of the MHA (including Section 3) is entitled to free aftercare services under Section 117. These services must meet a need arising from, or related to, the person’s mental disorder. Section 117 aftercare can include accommodation if the person’s need for accommodation is related to their mental disorder.
13. The Mental Health Act Code of Practice (the Code of Practice) is the statutory guidance that accompanies the MHA. The Code of Practice sets out that planning for a patient’s discharge, including identifying suitable aftercare services, should begin as soon as that patient is admitted to hospital.

Human Rights Act 1998

14. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to life, freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, freedom of expression, freedom of religion, freedom from forced labour, and education. The Human Rights Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
15. Not all rights operate in the same way. Instead, they break down into three separate categories:

• Absolute rights: those which cannot be interfered with under any circumstances.
• Limited rights: those that can be interfered with in certain circumstances; and
• Qualified rights: those rights where interference may be justified in order to protect the rights of others or wider public interest. Note that any interference with a qualified right must be in accordance with the law; in pursuit of a legitimate aim; no more than necessary to achieve the intended objective; and must not be arbitrary or unfair.

16. The Ombudsman’s remit does not extend to making decisions on whether or not a body in jurisdiction has breached the Human Rights Act – this can only be done by the courts. But the Ombudsman can make decisions about whether or not a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
17. In practical terms, councils and other public bodies will often be able to show they are compliant with the Human Rights Act if they consider the impact their decisions will have on the individuals affected and that there is a process for decisions to be challenged by way of review or appeal.

Background

18. Mr F has a mental disorder and a history of mental health inpatient admissions.
19. In December 2015, Mr F was detained under Section 3 of the MHA in Doncaster. This meant he was entitled to free aftercare services under Section 117 of the MHA.
20. Mr F remained under the care of mental health services in South Yorkshire until November 2018 when he was discharged as he was no longer engaging with his care and support.
21. In November 2019 Mr F was admitted to hospital for treatment in Manchester under Section 2 of the MHA. He was subsequently transferred to a specialist low secure mental health unit under the care of the Trust in July 2020.
22. In November 2020, Mr F’s care coordinator recorded that it would be necessary to establish which local authority and ICB held responsibility for Mr F’s Section 117 aftercare before discharge planning could commence.
23. In December 2020, Mr F began to use unescorted leave in the hospital grounds as part of early planning for his discharge.
24. By March 2021, Mr F was considered fit for discharge and planning for this began.
25. Mr F’s care coordinator left her post on 2 May. The case was allocated to another care coordinator, who visited him in hospital the following month. However, the new care coordinator went on a period of extended sick leave shortly after this before leaving the post.
26. A new care coordinator was allocated in early September. The new care coordinator visited Mr F in hospital on 7 September. Unfortunately, she also went on sick leave and, again, did not return to her post.
27. The Trust allocated Mr F’s case to a new care coordinator in October. In November, the care coordinator began a social care assessment for Mr F.
28. In the meantime, Mr F’s care coordinator referred him to three supported living placements without success.
29. The care coordinator completed the assessment in early February 2022. She subsequently submitted a funding application to Manchester Council’s funding panel on 16 February. However, the panel did not grant funding as it queried whether the Section 117 duty should lie with Doncaster Council due to Mr F’s admission in 2015.
30. Between March and April, the Trust made enquiries with Manchester Council and Doncaster Council, as well as mental health services in South Yorkshire. This revealed a dispute between Manchester Council and Doncaster Council as to which organisation held responsibility for Mr F’s Section 117 aftercare.
31. In May, Manchester Council agreed to fund Mr F’s Section 117 aftercare pending the resolution of its dispute with Doncaster Council. This was to facilitate Mr F’s discharge from hospital.
32. On 17 May, the multidisciplinary team revised Mr F’s social care assessment to reflect his need for supported accommodation with 24-hour staffing. The Manchester Council funding panel granted funding later that month.
33. The care coordinator explored the possibility of securing a placement in a neighbouring local authority area for which Mr F had expressed a preference. However, she was advised there was no realistic possibility of Mr F being offered accommodation in that area.
34. In June, Mr F’s care coordinator referred him to five further supported living placements.
35. In July, the care coordinator completed a further referral to another accommodation provider. The provider agreed to offer Mr F a place. The care coordinator continued to work with the provider throughout July and August to produce a sufficiently detailed and costed support plan for Mr F.
36. On 19 August, Doncaster Council accepted responsibility for Mr F’s Section 117 aftercare.
37. The care coordinator sent the costed support plan to Doncaster Council on 26 August.
38. Doncaster Council agreed the funding on 22 September and Mr F was discharged to the placement on 17 October.

Analysis

Delayed discharge

39. The case records show Mr F’s care coordinator first identified the need to clarify the Section 117 responsibilities in November 2020. However, I found no evidence to suggest the care coordinator took any action to do so before leaving her post in May 2021. This was a missed opportunity to establish at an earlier stage which local authority and ICB held the Section 117 duty for Mr F. This was fault by the Trust.
40. I am satisfied this did not have an impact on Mr F’s discharge for the period between November 2020 and March 2021. This is because the clinical records show Mr F was not considered ready for discharge until around March 2021.
41. I will go on to consider the impact of this fault on the later part of the discharge planning process below.
42. The discharge planning process began in March 2021. However, the clinical records suggest the initial planning process was hampered by the fact that Mr F’s care coordinator left her post in May 2021. In the months between May and September 2021, Mr F’s case was reallocated two times. On both occasions, the allocated care coordinators made initial contact with Mr F before experiencing periods of sickness. This meant no meaningful progress was made on planning for Mr F’s discharge until his case was reallocated once again in October 2021. Furthermore, the case records show Mr F’s care coordinators had very limited input into his wider care during this period. This was fault by the Trust.
43. There is then evidence of further delay on the part of the Trust as the care coordinator did not complete a needs assessment until February 2022, almost four months after the case had been reallocated to her. Again, this represented fault by the Trust.
44. The case records show it proved extremely challenging to identify suitable accommodation for Mr F. Between December 2021 and June 2022, Mr F’s care coordinator submitted numerous referrals to potential placement providers. These referrals were unsuccessful as the providers had no vacancies or were unable to meet Mr F’s needs. I accept these factors were largely beyond the Trust’s control.
45. Given the challenges I refer to above, I am unable to say when Mr F would have been discharged even if the discharge planning process had proceeded as it should have done. Nevertheless, I consider it likely, on balance of probabilities, that Mr F would have been discharged earlier if the fault had not happened. This delay caused Mr F significant distress and uncertainty.
46. The Trust eventually identified a suitable provider in July 2022. However, the case records suggest there was some delay on the part of the provider before it produced a sufficiently detailed care plan for funding approval. This did not happen until late September 2022, with Mr F being discharged the following month. I found no fault by the Trust with regards to this period of delay.

Funding dispute

47. The case records show there was also considerable confusion about which organisations had responsibility for providing or arranging Mr F’s Section 117 aftercare. As I have explained above, the Trust missed an opportunity to resolve this in November 2020, when Mr F’s original care coordinator first identified it as an issue.
48. By March 2022, the Section 117 responsibilities remained uncertain. At that stage, the Trust approached Doncaster Council to query whether it accepted the Section 117 duty for Mr F.
49. The Code of Practice places a duty on local authorities and ICBs to maintain a record of people for whom they provide or commission Section 117 aftercare services. Despite this, neither Doncaster Council nor the ICB could produce relevant Section 117 documentation for Mr F in response to my enquiries.
50. It was not until August 2022, around five months after the Trust first approached it, that Doncaster Council accepted the Section 117 duty for Mr F.
51. This was an unacceptable delay. In my view, the delay would likely have been avoided if Doncaster Council and the ICB had maintained appropriately thorough records relating to Mr F’s detention under Section 3 in 2015 and his related Section 117 aftercare needs. The failure to do so represented fault by Doncaster Council and the ICB (which shares the statutory Section 117 duty in this case).
52. I am satisfied this did not have a significant impact on Mr F’s discharge, however. This is because between March and April 2022, work was ongoing to find suitable accommodation for Mr F. This meant confusion over which agencies should fund Mr F’s Section 117 aftercare did not delay his discharge.
53. Furthermore, from May 2022, Manchester Council agreed to fund Mr F’s Section 117 aftercare pending the resolution of its dispute with Doncaster Council. As a result, the ongoing funding dispute would not have affected Mr F’s discharge if a suitable placement had been identified.

Human rights

54. In his complaint, Mr F said the delays in his discharge amounted to a breach of his human rights. Mr F said he was denied the opportunity to experience life with his young family as a free man and that this left him feeling hopeless and depressed. Specifically, Mr F referred to Article 5 (the right to liberty and security) and Article 8 (the right to a private and family life) of the Human Rights Act 1998.
55. Neither of these rights are absolute. This means they can be interfered with in certain circumstances. This includes when a person is detained under the MHA.
56. The case records show Mr F was provided with relevant information about his detention and how he could challenge it. He was also allowed leave to visit family and received visits in hospital.
57. Furthermore, the case records clearly note Mr F’s wishes about his discharge and his frustration with the delay. I am satisfied there is evidence to show care staff had appropriate regard for Mr F’s human rights, albeit his discharge was delayed as I have explained above.

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Agreed actions

58. Within one month of my final decision, the Trust will take the following actions:

Trust

• apologise to Mr F for the delays in the discharge planning process between May 2021 and February 2022; and
• pay Mr F £600. I am unable to say exactly when Mr F would have been discharged even if the discharge planning process had proceeded as it should have done. This is because the evidence shows factors beyond the Trust’s control made it difficult to secure suitable accommodation for Mr F. Nevertheless, I am satisfied that, on balance of probabilities, Mr F would have been discharged earlier with more effective discharge planning. This financial recommendation recognises the distress and uncertainty caused to him by the delayed discharge.

59. Within three months of my final decision, the Trust, Doncaster Council and the ICB will take the following actions:

Trust

• review its discharge policies and procedures to ensure there is a process in place for establishing which agencies hold the Section 117 duty for eligible service users as part of the discharge planning process;
• ensure there is a process in place for the prompt reallocation of cases in the event of the protracted absence of key staff (such as care coordinators). The Trust should also ensure there is a process for progressing cases in a timely manner in the event of shorter periods of staff absence.

Doncaster Council and the ICB

• review their Section 117 policies and procedures to ensure these are compliant with the Mental Health Act 1983 and the accompanying Code of Practice. Specifically, this review should ensure there is a clear process in place for maintaining a record of service users for whom they are responsible for providing or arranging Section 117 aftercare. This should include a record of what aftercare services are being provided; and
• ensure there is a clear escalation process in place to resolve any funding disputes in a timely manner.

60. The organisations will provide us with evidence they have complied with the above actions.

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Final decision

61. I found fault by the Trust with regards to the delays in the discharge planning process for Mr F.
62. I also found fault by Doncaster Council and the ICB as they failed to maintain appropriate Section 117 records for Mr F.
63. I found no fault by Manchester Council with regards to its involvement in Mr F’s care.
64. I am satisfied the actions these organisations have agreed to undertake represent an appropriate and proportionate remedy for the injustice arising to Mr F from the fault I identified.
65. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman