Summary: The Ombudsmen have stopped investigating Mr A’s complaint about the choice of legal powers applied to his late mother, Mrs B, in hospital following her detention under Section 2 of the Mental Health Act. This is because they could not achieve the outcome Mr A wants. There is a more appropriate route for Mr A to pursue in relation to Mrs B’s Continuing Healthcare funding.

The complaint

1. The complainant, who I shall call Mr A, disagrees with the choice of legal powers applied to his mother, Mrs B, in hospital. His complaint involves the actions of Walsall Metropolitan Borough Council (the Council), Dudley and Walsall Mental Health Partnership NHS Trust (the Trust) and East Staffordshire Clinical Commissioning Group (the CCG).
2. Following Mrs B’s detention in hospital under Section 2 of the Mental Health Act, Mr A considers that Mrs B should have subsequently been detained under Section 3. He disagrees with the decision made by the Council and the Trust to apply Deprivation of Liberty Safeguards (DoLS) instead.
3. He says the failure to properly record and assess Mrs B’s behaviour meant she was discharged to an inappropriate care home which could not meet her complex needs or manage her aggressive behaviour. As a result, Mrs B had to be moved a few weeks later, which was distressing for her and her family.
4. Mr A questions why Mrs B was not assessed for Continuing Healthcare funding prior to her discharge from hospital and why, when the funding was later granted by the CCG, it was not backdated further. He also believes that, if Mrs B had been detained under Section 3 then her care home fees would have been covered by Section 117 aftercare. Mr A considers that funding should have been in place for Mrs B’s care fees from the date she was discharged from hospital, either through Section 117 aftercare or Continuing Healthcare funding.
5. Mr A is seeking an apology for distress to Mrs B and her family, service improvements and reimbursement of the care fees accrued prior to approval of Continuing Healthcare funding.

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The Ombudsmen’s role and powers

6. 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)
7. 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).
8. The Ombudsmen cannot question whether an organisation’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, and Health Service Commissioners Act 1993, Sections 3(4)- 3(7))
9. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. The Ombudsmen provide a free service, but must use public money carefully. They may decide not to continue with an investigation if they believe:

• it is unlikely they could add to any previous investigation by the bodies, or
• they cannot achieve the outcome someone wants, or
• it would be reasonable for the person to ask for a review or appeal.

(Health Service Commissioners Act 1993, Section 3(2) and Local Government Act 1974, Section 24A(6), as amended)

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How I considered this complaint

10. I have considered the information provided by Mr A, the Trust, the Council and the CCG. I sent a copy of my draft decision to all parties involved and have considered their comments.

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What I found

What happened

11. In February 2016, following a deterioration in her mental health, Mrs B was admitted to the Trust’s hospital under Section 2 of the Mental Health Act. She was later diagnosed with vascular dementia.
12. In March 2016, the Section 2 expired. The Trust applied for a DoLS. This remained in place throughout Mrs B’s hospital stay and allowed the hospital to apply certain restrictions to Mrs B’s liberty in her best interests.
13. In November 2016, Mrs B was discharged from hospital and moved to a residential care home. Following a number of incidents, Mrs B was served notice by the Home.
14. In December 2016, Mrs B moved to a nursing home where she remained, under DoLS, until she died in September 2017.
15. The CCG assessed Mrs B for NHS Continuing Healthcare in January and June 2017. The CCG approved full funding, backdated to 19 January 2017.

Relevant legislation

Deprivation of Liberty Safeguards (DoLS)

16. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interest and there is no less restrictive alternative.

Mental Health Act – Detention in hospital

17. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes. A person can be detained in hospital under Section 2 of the Act for an assessment to be carried out and for treatment after the assessment. A person can be kept in hospital under Section 2 for a maximum of 28 days.
18. A person can be detained under Section 3 of the Act for treatment and can be kept in hospital for up to six months, which can then be renewed for another six months. People who are released from hospital under Section 3 will not have to pay for any aftercare they need as a result of the condition for which they were detained. This is known as Section 117 aftercare.

NHS Continuing Healthcare

19. NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’. CHC funding can be provided in any setting and can be used to pay for a person’s residential nursing home fees in some circumstances.
20. A person’s local Clinical Commissioning Group (CCG) is responsible for assessing their eligibility for CHC and providing the funding. CCGs sometimes commission other NHS organisations to carry out the assessments on their behalf.
21. A person can make a claim for CHC funding after a period of care has elapsed, for example, on behalf of someone who has died.

Section 3 or DoLS

22. On 4 March 2016, during Mrs B’s hospital admission, a multidisciplinary team meeting took place. It was decided that Mrs B no longer met the criteria to be detained under the Mental Health Act and managing her under DoLS would be more appropriate, as the least restrictive option.
23. Mr A says that Mrs B sometimes refused to take her psychotropic medication orally and there were discussions about whether alternative administration methods, such as intramuscular injections, would be necessary to ensure compliance. Mr A feels that the consideration of compulsory medication supports his view that Mrs B should have been detained under Section 3 instead of DoLs. He also believes she would have been more closely monitored under Section 3, which may have avoided her placement in an unsuitable residential home that could not meet her needs.
24. In its complaint responses to Mr A, the Trust explained that Mrs B sometimes needed encouragement to take her medication and would occasionally choose to decline painkillers, however she was compliant with her psychotropic medications. Mrs B did not require intramuscular injections due to non-compliance with her medication during her hospital admission. The Trust said Mrs B received hourly observations, which was standard for all inpatients.
25. The Ombudsmen cannot question whether an organisation’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.
26. I have seen nothing to suggest that Mrs B regularly missed doses of her psychotropic medication or was not monitored regularly because she was not detained under Section 3. A person should not be detained if there is a less restrictive option. The information I have seen so far does not indicate there was fault in the decision to apply for DoLS authorisation rather than detention under Section 3. Further investigation is unlikely to find evidence of fault, or injustice to Mrs B, for the reasons below.
27. Under Section 3 of 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 for treatment 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 and another doctor.
28. 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)  
29. Without a detailed contemporaneous assessment of Mrs B by an AMHP and two doctors, the Ombudsmen could not now conclude, even on balance, that a Section 3 detention would have been appropriate for Mrs B at the time.
30. Even if Mrs B had been detained under Section 3 and had been eligible for Section 117 aftercare funding, we cannot know with any certainty whether that funding would have covered her care home fees. Section 117 aftercare can cover a variety of services, however accommodation is not automatically funded. The available information is insufficient for the Ombudsmen to decide what funding Mrs B should have received had she been eligible for Section 117 aftercare and further investigation is unlikely to resolve this. We therefore cannot recommend the financial reimbursement sought by Mr A.
31. With little likelihood of being able to make the finding Mr A is seeking or be able to reach a point where we could recommend the financial outcome he is seeking, I have discontinued this investigation as we are unlikely to achieve anything further for Mr A.

NHS Continuing Healthcare

32. The CCG has confirmed that Mr A has not contacted them to raise his concerns about the lack of CHC funding between 14 November 2016 to 19 January 2017.
33. Mr A notes that he is not unhappy with the actions of the CCG. However the CCG has been included because Mr A has raised complaints about gaps in Mrs B’s CHC funding, which is the responsibility of the CCG.
34. The CCG has a process by which Mr A can make a formal request for a retrospective assessment of this period of care. This is the most appropriate way for Mr A to address this aspect of his complaint. It is open to Mr A to pursue this directly with the CCG if he wishes. Therefore, the Ombudsmen will not take this point further.

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Final decision

35. I have stopped investigating Mr A’s complaint because I could not make a finding of the kind Mr A wants nor directly link any potential fault to the financial loss he has claimed. A retrospective review by the CCG is the most appropriate way to address Mr A’s complaint about Mrs B’s Continuing Health Care funding.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman