Summary: We will not investigate Ms X’s complaint about Staffordshire County Council, North Staffordshire Combined Healthcare NHS Trust and NHS Staffordshire and Stoke-on-Trent Integrated Care Board. She says they ignored her views when it moved her brother, Mr Y, to a care home, which cannot meet his mental health needs. The matter has and still is being considered by the Court of Protection. The law will not allow us to consider a complaint where court action has started.

The complaint

1. Ms X complains about Midlands Partnership NHS Foundation Trust (MP Trust - on behalf of Staffordshire County Council) and North Staffordshire Combined Healthcare NHS Trust (Hospital Trust). She says they ignored her views (as Lasting Power of Attorney) when it moved her brother, Mr Y, to a care home following his detention under Section 3 of the Mental Health Act (MHA). That care home (funded by the Council and NHS Staffordshire and Stoke-on-Trent Integrated Care Board) cannot meet Mr Y’s mental health needs, and the Trusts have refused to consider alternatives. Ms X would like the organisations to accept its failings and support Mr Y to return to his home.

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The Ombudsmen’s role and powers

2. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended and Health Service Commissioners Act 1993, section 4(1)(b))
3. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been mentioned as part of the legal proceedings regarding a closely related matter. (Local Government Act 1974, sections 24A(6))

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How I considered this complaint

4. I considered evidence provided by Ms X as well as relevant law and guidance.
5. Ms X 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

6. Section 3 of the Mental Health Act is for the purpose of providing treatment.
7. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. 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 person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). This is known as Section 117 aftercare.
8. The Court of Protection (CoP) deals with decision-making for adults who may lack capacity to make specific decisions for themselves. The CoP may become involved in particularly difficult cases or cases where there are disagreements that cannot be resolved in any other way.
9. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. Subsection 5 of Section 75 says the NHS and councils remain liable for the exercise of their own functions. 
10. There was a Section 75 agreement in place between the Council and MPFT at the time of events complained about. MPFT completed Care Act assessments and support plans on behalf of the Council. It did so for Mr Y in this case.

My assessment

11. In 2022, the Hospital Trust admitted Mr Y under Section 3 of the MHA. Ms X acted as Lasting Power of Attorney for Mr Y’s health and welfare.
12. In July 2023, the Hospital and MP Trusts decided it was not safe for Mr Y to return home with support, he needed 24-hour care. Ms X disagreed with that view, and Mr Y should move home with support. The Council then applied to the CoP. It felt Ms X was not acting in Mr Y’s best interests.
13. By December 2023, the CoP had not decided about Ms X’s suitability to act for Mr Y. However, it made an order that if Mr Y needed to be urgently discharged, he should move to a care home from hospital, in the interim. The Council also applied to the CoP to make decisions about Mr Y’s care needs.
14. In January 2024, Mr Y moved to the care home from hospital. He started to receive Section 117 aftercare (jointly funded by the Council and ICB).
15. I cannot investigate the decision to move Mr Y to a care home. This complaint has already been considered by the CoP, when court action started in December 2023. It would also be reasonable to expect Ms X to ask the CoP to consider her ongoing concerns about Mr Y’s care and support needs, including the suitability of the care home.

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Decision

16. I will not investigate Ms X’s complaint because it is a matter for which court action has started and continues.

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Investigator's decision on behalf of the Ombudsman