Summary: We do not uphold G’s complaint about City of York Council and NHS Humber and North Yorkshire Integrated Care Board’s decision to reduce their section 117 aftercare in December 2023. However, the Council and ICB should have reviewed G’s aftercare need before they left hospital in March 2024. That caused them distress, and the organisations should jointly apologise for that.

The complaint

1. The complainant, who I shall refer to as G, says in December 2023, City of York Council (the Council) and NHS Humber and North Yorkshire Integrated Care Board (the ICB) decided G did not have any section 117 aftercare needs and would gradually reduce their care package. G refutes the Council’s suggestion the care package was damaging to them. Rather, it was not meeting their needs, and they needed specialist support instead. G also says the Council and ICB decided to completely withdraw their section 117 aftercare following being discharged from Section 3 of the Mental Health Act (MHA) in March 2024.
2. G says the Council and ICB’s actions caused them to be detained under the MHA multiple times after December 2023. The fault has also caused their eating disorder to worsen, and they have completely relapsed without the structure of section 117 aftercare.
3. G would like the Council and ICB to review and reinstate their section 117 aftercare and provide specialist psychological and/or trauma support.

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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, 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)
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. 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))
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. I considered the information G and the organisations sent to me, including their responses to my enquiries. I also considered the relevant national guidance and legislation.
9. G and the organisations had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

10. Section 2 of the Mental Health Act 1983 (MHA) is used to assess someone in hospital following concerns about their mental health.
11. Section 3 of the MHA is used to provide treatment to someone in hospital.
12. Section 117 of the Mental Health Act (MHA) requires councils and ICBs 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 ICB decide the person no longer needs them.
13. Section 117 does not define what aftercare services are. The Mental Health Act: Code of Practice (the MHA Code) says 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).
14. 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. (Section 34 of the MHA Code).
15. Section 136 of the MHA gives police the power to detain a person without a warrant and transport them to a place of safety for an assessment.

Background

16. G suffers with a personality disorder (a condition which affects how someone feels, thinks and behaves to other people) and an eating disorder.
17. Since 2021, the Council and ICB agreed to fund an extensive package of section 117 aftercare. The Council paid for social care support during the day between 2pm and 5pm, three days per week. The ICB paid for waking night support (when carers are awake and ready to provide support when needed) from a care agency between 5pm and 10am.
18. An NHS Trust (the Trust – not subject to this investigation) also provided support for G’s mental health and eating disorder from its respective Community Mental Health Team (CMHT) and Community Eating Disorder Team (CEDT).
19. In early December 2023, the Council, ICB and Trust carried out a review of G’s section 117 aftercare because their needs had changed:
• The Council proposed to remove its social care support. G was not using those funds for social care needs.
• G said the care package did not meet their needs. They needed more intensive therapeutic support, not less.
• The Trust agreed the current support was not working for G because it did not reduce the risk of hospital readmission.
• The ICB proposed removing 5pm – 10am care agency support. G disagreed with that decision but would be flexible with their care agency, and willing to reduce the hours from 8pm – 8am.
20. In mid-December 2023, the Council and ICB jointly agreed to reduce G’s section 117 aftercare. It removed G’s Council funded support during the day. Also, the ICB would fund sleeping night support (when carers can sleep on site and provide support when needed) between 10pm and 10am. It would then gradually remove G’s care agency support with the help of the Trust’s CMHT and CEDT.
21. The next day, G complained to the Council and ICB about the decision.
22. Between 5 and 11 January 2024, the Trust detained G three times under section 136 of the MHA. On one occasion, the Trust further detained G under section 2.
23. In late January 2024, G told the Council they were having problems with the care agency. The care agency told the Council and CMHT it was considering serving notice because of G’s lack of engagement with support and making themselves worse to get more specialist support. It was also struggling to manage G’s demands and complaints from their friends.
24. On 2 February 2024, the Trust detained G under section 2, and admitted them for refeeding (resulting from their eating disorder). Three days later, G told the ICB the reduction in their section 117 aftercare led them to stop eating and drinking. The ICB recommended the CEDT support G on discharge.
25. On 6 February 2024, the Council told the ICB it had reviewed the care agencies records. The Council said the reduced since December 2023 had not reduced or increased readmissions to hospital under the MHA.
26. Three days later, the ICB responded to G’s complaint. It said the Council and Trust had robustly assessed and reviewed their section 117 aftercare. It was assured the CMHT and CEDT can support their needs. In response, G asked why no one spoke to them during the section 117 aftercare review. G said if they had, they would not be in hospital under section 2. The ICB said it had involved G in discussions. The organisations held many meetings about reducing their support, and was happy the current care package met G’s aftercare needs.
27. On 28 February, the Trust further detained G under section 3. It told the Council it would likely discharge them in a week. The Council agreed it needed to review G’s section 117 aftercare before they left hospital.
28. G remained at the Trust until 5 March 2024 when it discharged them. During that admission, G’s care agency served its notice.
29. The next day the Council and ICB reviewed G’s section 117 aftercare with them. They decided the only section 117 aftercare G needed was from the Trust’s CMHT and CEDT. The Trust agreed with that approach.
30. G complained about the decision to further reduce their section 117 aftercare. They also sent the Council pre-action protocol papers for a judicial review claim.
31. In mid-March 2024, the Council responded to G’s complaint and pre-action protocol. It said:
• The Council and ICB initially provided a larger care package to support G’s discharge from hospital in 2021. Over the years, the organisations that was too much support for them.
• The Council and ICB disagreed G did not have any section 117 needs. Rather, the CMHT and CEDT could meet those needs, which it regularly reviewed.
• It would have been harmful to reduce G’s care package at once in December 2023. So, it decided to gradually reduce instead.
32. In late April 2024, the Trust detained G under section 2 of the MHA.
33. In mid-May 2024, G agreed to move to a specialist eating disorder unit. Because they did not trust the local service in York, they agreed to move a unit in London. While in London, the unit detained G under section 3. G remains at that unit.

My view

The Council and ICB’s decision making in December 2023

34. In response to my enquiries, the Council and ICB said they were guided by the professional opinion of the Trust’s CMHT and CEDT. Those services said G’s robust care package did not reduce the risk of re-admission to hospital. That led to the section 117 review in December 2023.
35. I have considered the Council and ICB’s case records in the build up to that decision. That includes emails between many professionals, and notes from meetings.
36. The decision to reduce G’s care package was a professional opinion, and I cannot say the Council and ICB’s decision was wrong just because G disagrees with it. However, I have considered what steps the Council and ICB took when coming to their decision.
37. Crucially, the Council and ICB carried out a robust review of G’s aftercare needs in early December 2023. I consider that review involved the right people (specifically the Trust and G’s care agency). The Council and ICB also discussed the proposed changes with G and considered their views.
38. The Council did not arbitrarily remove G’s funding for support. It explained why G was not using support to meet social care needs related to their mental health. The Council also robustly reviewed G’s nighttime support. That included a detailed analysis on the type of support the care agency provided to them. It found G needed less support than previously assessed.
39. I consider the Council clearly communicated with G when it explained why it would be reducing their support.
40. Also, I am persuaded the Council and ICB were open to G’s views before it decided to reduce their aftercare package. It recognised that to remove all their care at once could potentially make things worse for them. That was good practice.
41. The Council and ICB also appropriately arranged to monitor G’s support after December 2023, by working with the Trust. Again, that was good practice.
42. Overall, I consider the Council and ICB acted in line with the principles of the MHA Code when it decided to reduce G’s section 117 aftercare.

The discharge in March 2024

43. In response to my enquiries, the Council and ICB told me the duty to provide section 117 aftercare to G ended when the Trust detained them on 28 February 2024. A fresh duty to provide section 117 aftercare started when the Trust discharged them on 5 March.
44. I agree with the Council and ICB. However, section 33 of the MHA Code is clear aftercare planning should be completed in good time before someone is discharged from hospital. That is because the duty to provide it starts on the point of discharge.
45. That did not happen in this case. I have reviewed the Council and ICB’s records. The Trust made it clear to the Council and ICB it would be discharging G within a week from 28 February. The next day, the Council was clear it needed to review G’s section 117 aftercare, before they left hospital, to identify what support they needed in the community. It was important to carry out that review before discharge considering the care agency’s support had ended. I have not seen any evidence that was communicated to G while in hospital.
46. The Council and ICB told me the Trust did not tell them they would be discharging G on 5 March. I accept the Trust did not confirm what date it would discharge G. But it made it clear G would likely be in hospital for another week after 28 February. I consider the Council and ICB had a responsibility to review G during that week. It did not do that, which was fault.
47. G left hospital on 5 March not knowing their care agency support had stopped, or what section 117 aftercare they would receive. That would have been distressing for them. But G would have been aware they could approach the CMHT and CEDT for support, if needed.
48. I will now turn to the assessment of G’s needs on 6 March, the day after discharge.
49. I have seen evidence the Council and ICB completed G’s section 117 aftercare plan, before assessing their needs. The MHA Code is clear that “the care plan should be prepared in close partnership with the patient from the outset, particularly where it is necessary to manage the process of discharge from hospital and reintegrating into the community…” (Section 34.10). I do not consider the Council and ICB acted in line with the MHA Code. That was fault.
50. I understand that would have been frustrating for G, not being involved in the assessment of their section 117 aftercare, before they left hospital.
51. I have made recommendations to the Council and ICB about how to remedy G’s personal injustice.

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Action

52. Within four weeks, the Council and ICB should jointly apologise to G for the distress and frustration caused by not assessing their section 117 aftercare, before they left hospital in March 2024.
53. Within eight weeks, the Council and ICB should ensure relevant staff are aware of their responsibilities to assess someone’s section 117 aftercare needs in line with Sections 33 and 34.10 of the MHA Code.

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Final decision

54. I have found no fault with how the Council and ICB decided to reduce G’s section 117 aftercare in December 2023.
55. The Council and ICB did not review G’s section 117 aftercare before the Trust discharged them in March 2024. That fault caused G distress and frustration. I have recommended the Council and ICB take action to remedy that injustice.

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Investigator's decision on behalf of the Ombudsman