NHS Devon CCG (19 006 761a)

Category : Health > Other

Decision : Not upheld

Decision date : 21 Jan 2020

The Ombudsman's final decision:

Summary: The Ombudsmen consider Livewell Southwest missed the opportunity to support Mrs K when her art therapy stopped because of staff sickness. This caused Mr and Mrs K distress which Livewell Southwest should put right. Also, Plymouth City Council should have properly considered Mrs K’s respite request in May 2018. That caused Mrs K uncertainty. The Ombudsmen do not consider Livewell Southwest were at fault in the way it managed Mrs K’s section 117 aftercare with a psychiatrist rather than a care coordinator.

The complaint

  1. Mr K complains on behalf of his wife, Mrs K about Livewell Southwest’s (Livewell) section 117 aftercare. He says the aftercare between April 2018 and April 2019 did not meet his wife’s mental health needs. Mr K says his wife did not have a care coordinator or support worker during that time. The lack of support led Mrs K to self-harm, which also caused him distress.
  2. Mr K says nurses never followed his wife up after agreeing to do a welfare check over the phone in April 2018. The lack of welfare check compounded the distress Mrs K was already suffering.
  3. Mrs K would like Livewell to give her a care coordinator. Also, Mr and Mrs K would like systems in place to avoid similar fault reoccurring.

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The Ombudsmen’s role and powers

  1. 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).
  2. 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.
  3. 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)
  4. 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.

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How I considered this complaint

  1. I considered information Mr and Mrs K provided in writing and by telephone. This includes documents by the organisations complained about. I have taken the relevant law and guidance into account. I have written to Mr and Mrs K and the organisations with a copy of my draft decision and considered their comments.

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What I found

Key facts

  1. Mrs K suffers with a personality disorder, fragile X syndrome and received section 117 aftercare. Mr K is his wife’s full-time carer. Mrs K also has a professional advocate (the Advocate).
  2. To support Mrs K’s mental health, the Council provided 20 nights respite a year starting from March 2018. Also, Livewell’s community support worker (CSW) worked with Mrs K between September 2017 and April 2018 to find community support for Mrs K’s mental health. The CSW also provided support for Mrs K’s social needs.
  3. The CSW’s support stopped in April 2018. Mr K said it was because his wife would get aggressive and was difficult to contain. However, the CSW remained in contact with Mrs K.
  4. After confusion about a section 117 review planned for April 2018, Livewell held the review in May 2018. Livewell’s psychiatrist led the review and they discussed respite, medication and the stress Mrs K suffered from the confusion about the April 2018 meeting. Mrs K requested five extra days of respite. The Council said that would not be possible, and Livewell would have to consider funding that request. Livewell agreed to discuss that. The psychiatrist also noted Mrs K would be starting art therapy soon.
  5. Mrs K started long-term art therapy sessions in June 2018 which are continuing.
  6. On 11 June 2018, the CSW restarted the support work with Mrs K.
  7. An occupational therapist reviewed the CSW’s support on 2 July 2018. The occupational therapist noted the CSW had achieved her goal in finding Mrs K alternative support in the community. Mr and Mrs K did not agree the CSW should stop her support.
  8. On 11 July 2018 Livewell held a meeting with the Council. They both agreed the CSW should discharge Mrs K. The CSW called Mr and Mrs K the same day to confirm that. Mr K was not happy with the decision but told the CSW he understood why and thanked her for her support.
  9. In August 2018, Mrs K met with her psychiatrist for a section 117 review. Mrs K chased the five days extra respite she requested in May. The psychiatrist said the Council would need to assess her needs before agreeing to provide further respite. Livewell apologised for the delay in communicating that to the Council. Mrs K was sad the CSW’s support had stopped. She added she wanted to go out more. Livewell agreed to review Mrs K’s needs.
  10. In late August 2018, the Council assessed Mrs K’s needs for extra respite and support to access art therapy. It agreed to provide five extra days of respite for Mrs K (up to 25 days) and four extra hours to support her getting to art therapy. The Council approved the extra support to start on 22 November.
  11. In December 2018, Mrs K met with her psychiatrist for a section 117 review. Mrs K said her mental health had worsened and had suicidal thoughts. The psychiatrist noted Mrs K was still waiting for the outcome of her respite request. Mrs K reiterated she wanted a support worker.
  12. In March 2019, the Advocate queried whether Mrs K should have to pay the travel costs for the Council’s support worker to enable her to attend art therapy. She was under the impression this would be included as part of her section 117. The Council told Mrs K’s advocate this would not be included, and Mrs K would have to pay for transport using her disability living allowance. This was in line with the Care Act 2014.


Managing Mrs K’s aftercare

  1. 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 persons mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the persons mental disorder under S117 cannot be charged for. This is known as section 117 aftercare.
  2. The Care Programme Approach (CPA) is the process by which mental health services assess a patient’s needs, plan how to meet them and ensure they are met. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs.
  3. Livewell told me it did not manage Mrs K under the CPA. Therefore, she did not have a care coordinator.
  4. Livewell’s Care Programme Approach Policy says people not managed under the CPA should have a lead professional. The lead professional should carry out a yearly review of the person. Also, the lead professional should detail risks, their plan and when the next review would be in outpatient appointments.
  5. I have considered the letters from Mrs K’s outpatient appointments between April 2018 and April 2019.
  6. Livewell appointed a consultant psychiatrist to be the lead professional for Mrs K. At the May, August and December 2018 outpatient appointments, the psychiatrist clearly noted Mrs K’s risk and developed a plan for her based on a robust assessment. The psychiatrist noted when the next section 117 review would be. Appointment letters also included the contact for Mental Health Matters – an out of hours service if there was crisis.
  7. Overall, I do not consider the way Livewell decided to manage Mrs K’s section 117 aftercare was fault. The psychiatrist followed the local policy.
  8. I also do not consider Livewell needed to provide a care coordinator to Mrs K. Mrs K’s mental health changed between April 2018 and April 2019. However, I am satisfied the psychiatrist was properly managing Mrs K’s aftercare.

The community support worker

  1. I have considered the occupational therapist’s assessment and the notes from the team meeting in July 2018.
  2. I consider Livewell suitably assessed how discharging Mrs K from the CSW would meet Mrs K’s mental health needs. The occupational therapist and the professionals at the team meeting all recognised Mrs K would be supported by art therapy, which would meet her mental health needs. By going to art therapy, she would be accessing the community – which was one of the main ways Mrs K wanted to improve her mental health. Therefore, I do not consider the way Livewell decided to discharge the CSW was fault.

The art therapy

  1. I have considered Livewell’s notes from the art therapy sessions. Between July 2018 and March 2019, Mrs K had regular appointments. There is evidence from the time Mrs K agreed those sessions helped her mental health. However, there were two significant gaps in her art therapy.
  2. The first gap was between 20 August and 22 October 2018 due to staff sickness. Once Livewell was aware Mrs K’s art therapist would be on long-term sick, it should have contacted Mrs K. Livewell missed the opportunity to provide alternative support to meet her mental health needs then. This was fault. Mrs K spent two months without any therapy, and it was clear how important those sessions were to Mrs K.
  3. When Mrs K returned to art therapy on 22 October 2018, she described how supported and calming it was for her. I have considered Livewell’s communication with the Council during the gap in provision. Mrs K’s mental health was worsening as she was not accessing the community for the art therapy. There was no communication between the art therapist (or her colleagues) and Mrs K’s psychiatrist. This was a distressing time for Mrs K, and for Mr K as her carer. Livewell will need to remedy the injustice Mr and Mrs K suffered. However, I have not seen evidence that between August and November 2018 Mrs K self-harmed.
  4. The second gap was from 19 November 2018 to 3 December. This was because Mrs K was away using her respite. I do not consider that gap was because of any fault on Livewell’s part.
  5. In November 2018, the Council approved a support worker to help Mrs K attend art therapy. However, during the assessment for that support, the Council did not explain Mrs K would have to pay for the support worker’s transport.
  6. I consider the Council had to ensure Mrs K received that support without paying for it herself or by using her benefits. This is a basic principle of section 117 aftercare. This was fault. Mrs K did not receive that support which was an injustice because that support broke down. The Council will need to remedy Mrs K’s injustice.

The respite

  1. Livewell have provided information to me about Mrs K’s social care on behalf of the Council. However, the Council has a statutory responsibility to provide social care if it meets someone’s mental health needs.
  2. I have considered the Council’s record of Mrs K’s periods of respite between March 2018 and April 2019.
  3. Mrs K’s 20 respite days started in March 2018. Mrs K used five respite days in March, four days in June, four days in September, six days in November (when the Council also approved an extra five days) and seven days in February 2019.
  4. Mrs K initially requested the five extra days in May 2018, and it was not until she chased it again in August that the Council reviewed her needs. I consider in May the Council was wrong to say it was Livewell’s responsibility to provide extra respite. The Council was ultimately responsible for providing the respite, and it should have confirmed that in May. This was fault which caused Mrs K uncertainty over three months about who would be considering her request. The Council will need to remedy the uncertainty Mrs K suffered.
  5. The Care Act 2014 states: “While there is no defined timescale for the completion of the care and support planning process, the plan should be completed in a timely fashion, proportionate to the needs to be met”.
  6. The Council took over two months to approve the request for five extra respite days. This was fault. However, I do not consider there was an injustice to Mrs K.
  7. Mrs K had 20 respite days and by August 2018 she had used nine. Mrs K used respite days in the time she was waiting for the Council’s to authorise the extra five days. So I cannot say she was prevented from taking any respite days or that her plans were affected. Therefore, I do not consider the Council’s delay disadvantaged Mrs K.
  8. The Council said the delay was most likely because of staff sickness. However, it has changed how it manages approval requests. Managers have daily slots in their diaries to ensure they can review authorisation requests. The Council also has a way it can see how all approval requests are progressing. I consider the Council has carried out improvements to avoid similar delays happening again.

The phone conversation in April 2018

  1. On 19 April 2018 a nurse for Livewell returned a call to Mrs K about the confusion about a section 117 appointment. The nurse told Mr K Livewell did not send an appointment letter to his wife because the Council had not confirmed it would be able to attend. Mr K became distressed during the call, and the nurse agreed to speak to Mrs K’s psychiatrist to try to speed up a section 117 review. The nurse agreed to communicate the psychiatrist’s decision to Mr and Mrs K.
  2. The nurse discussed Mr and Mrs K’s situation with the psychiatrist a day later. The psychiatrist agreed to hold a section 117 review on 15 May 2018. Livewell sent a letter confirming this on 23 April.
  3. I have considered Livewell’s record of the call with Mr K on 19 April 2018. The notes from the call on 19 April 2018 clearly show Mr and Mrs K were distressed from the confusion surrounding the section 117 appointment. Also, I do not doubt Mr and Mrs K’s version of events. However, based on the evidence from the time, on the balance of probabilities Livewell did not agree a nurse would carry out a welfare check of Mrs K on 20 April. Rather, both parties agreed the nurse would speak with the psychiatrist to decide what to do next with Mrs K’s section 117 review.

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  1. Within four weeks, the Council should write to Mrs K to acknowledge and apologise for the uncertainty caused by providing incorrect advice in May 2018 about who was responsible for funding her respite. Also, for not funding the support worker’s mileage to assist Mrs K to art therapy after November. This stopped Mrs K receiving that support. The Council should also pay Mrs K £250 to recognise the lack of support for Mrs K.
  2. Within four weeks, Livewell should write to Mrs and Mr K to acknowledge and apologise for the distress caused by the two-month gap in art therapy. Livewell should also pay Mr and Mrs K £250 each to recognise the distress they suffered.
  3. Within eight weeks, Livewell should ensure there is a system in place so when someone’s section 117 support stops it is escalated to the lead professional. Livewell may wish to approach the Council and CCG when developing that process.

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Final decision

  1. I consider Livewell appropriately managed Mrs K’s section 117 aftercare. However, once it was clear Mrs K’s art therapist would be on long-term sick, Livewell should have contacted Mrs K to see how they can provide further support to her. This was fault which caused Mr and Mrs K distress.
  2. I consider the Council should have told Mrs K it was responsible for respite requests in May 2018. This caused Mrs K uncertainty. Also, the Council’s decision to not fund the support worker’s mileage meant that support broke down.
  3. I do not agree Livewell agreed to carry out a welfare check of Mrs K during a phone conversation in April 2018.

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Investigator's decision on behalf of the Ombudsman

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