Decision Date: 25 Nov 2024
Summary
The LGSCO found fault with both Somerset Council and the local NHS Foundation Trust for their failure to create a timely and effective care plan for Mr Y after discharge from hospital. This caused uncertainty as to the support Mr Y may have been able to receive, which was an injustice to both Mr Y and his parents, Mr and Mrs X.
Further, the Council were at fault for failing to complete carers’ assessments of Mr and Mrs X despite having agreed to do so. This was a further source of uncertainty, as it was unclear whether this would have provided Mr and Mrs X with beneficial support at a time of crisis.
What happened
In 2022, when around 16, Mr Y was referred to the Trust’s children’s mental health services (CAMHS) by his GP for panic attacks, insomnia and suicidal thoughts. CAMHS did not find that Mr Y had any specific mental health problems, instead describing his behaviour and thoughts as responses to recent events in his life.
In 2023, Mr Y was (voluntarily) assessed in a mental health ward, after which he was referred to Children’s Services, as he was not yet 18. In April, a Child and Family Assessment was completed, which recommended that the Council support Mr Y with a Child in Need plan. During this assessment, Mrs X (his mother) expressed that she wanted Mr Y to attend a specific educational establishment (referred to in the report as ‘Provision A’).
In late April, Mr Y was detained under s3 Mental Health Act (MHA) to assess his mental state, to prevent him from using illegal drugs, and to place him on medication. This entitled him to free aftercare services upon his discharge, regardless of his age, planned under the Care Programme Approach (CPA), as specified in s117 MHA.
During a CPA meeting, Mr and Mrs X said that they would only be able to support Mr Y at home if there was a comprehensive care package, expressing their concern that Mr Y would not receive sufficient support when discharged from the hospital. After this meeting, the Trust referred Mr Y to the Council’s Adult Services to assess his needs, given he was nearly 18.
At the end of June 2023, Mr Y remained in the hospital on an informal basis; he was no longer detained by the hospital under the MHA or the MCA as they considered him able to make decisions about his care.
Shortly after the hospital had terminated Mr Y’s formal detention, a Children’s Services worker telephoned Mr X, who informed the worker that Mr Y was on the waiting list for Provision A.
At this time, Mrs X outlined the support she thought her son required:
- 24-hour monitoring and assistance;
- courses that enabled him to gain skills and increase his employability;
- regular mental health support.
In July 2023, another CPA meeting was held, where Mrs X repeated her concerns that Mr Y would not be adequately supported when he left hospital.
On the same day, Mr Y was discharged from the hospital and returned home, where a CAMHS team were supposed to visit him on alternate days to monitor his mental health. The Children’s Services continued to discuss Mr Y’s support with Mrs X and arranged for two nurses to visit Mr Y for twenty hours per week while Mr and Mrs X were at work.
A week after Mr Y returned home, he had visited Provision A and conveyed through his mother that he wanted to attend there.
In August 2023, Adult Services allocated Mr Y a social worker, who asked the Council to continue funding Mr Y’s current support package via the Children’s Services budget while they completed an assessment to determine his needs. The Council agreed to a temporary continuation of Mr Y’s funding.
At the same time, a complex care panel rejected the Children’s Services’ request for funding so that Mr Y could attend Provision A, given he was turning 18 in a week, at which point the Children’s Service’s position was that it could not commit to funding his placement.
Later that month, a social worker from Adult Services met with Mr Y and Mrs X, noting Mrs X’s concerns about Mr Y being left alone, and her request that he attend Provision A. The social worker intended to write up a Care Assessment which would consider support providers for Mr Y and his attendance at Provision A.
Shortly after this meeting, Mr Y was re-detained under the MHA, at which point the Adult Services community team stopped its assessment and care plan of his needs, instead referring Mr Y to an in-patient team.
In August, Mrs X complained to the Council on the basis that the Trust and Council had failed to:
- adequately assess Mr Y’s aftercare needs;
- arrange or provide a sufficient package of support for Mr Y in the community between his discharge and readmission (including education);
- complete a carers’ assessment of Mr and Mrs X between Mr Y’s discharge and readmission.
In its response, the Council acknowledged that the s117 aftercare plan had not been provided in a timely manner – something it attributed to the complexities of Mr Y’s case. The Trust did not consider there were any failings in its planning of Mr Y’s aftercare.
At the end of September, Mr Y’s detention under s2 came to an end and he discharged himself from hospital. He was allocated a different social worker by Adult Services, who completed a new Care Act assessment in November and said they would look into supporting Mr Y through Direct Payments, as well as his attendance at Provision A. At this time, Mrs X expressed concerns that support workers would not benefit Mr Y unless he had funding to travel and attend activities with them. However, a week later Mr Y was again redetained under the MHA.
What was found
Delayed and ineffective s117 care planning:
The LGSCO found fault with the Council’s avoidable and unnecessary delay in referring Mr Y to Adult Services. Children’s Services knew a month in advance that Mr Y would most likely return home before he turned 18, but did not refer him to Adult Services until late June; if this was done sooner, it is possible that Adult Services would have been involved in his case from his first detention under the MHA which may have aided Mr Y’s transition from Children’s to Adult Services.
This was particularly important when considering the funding for a place at Provision A. The Children’s Services declined funding because Mr Y would soon turn 18, at which point Adult services should have been included. The LGSCO held the Council at fault for this failure to adopt an effective multi-agency approach and meet Mr Y’s needs under s117.
Despite this, the LGSCO acknowledged that both the Trust and the Council considered the support Mr Y may require in the community and involved Mr and Mrs X in multi-agency meetings where they spoke directly to Mr Y to find out his own opinions. As Mr Y did not engage with the therapeutic input available during his first hospital admission, nor in social care support in the community once he had returned home, the LGSCO said that professionals should have talked directly with him and considered his capacity. However, the main problem was that there was no clear s117 aftercare plan for Mr Y after he left hospital in July 2023. The LGSCO investigator claimed that it seemed the Trust had decided what support it would offer Mr Y without liaising with the Council to form one jointly agreed plan; for this, both the Trust and the Council were at fault.
Given it is not possible to know what support Mr Y would have received had there been more timely planning and coordination between agencies, the LGCSO held that the Council’s failure created uncertainty, which was in itself an injustice to Mr Y and his parents.
The LGSCO also investigated the NHS Somerset Integrated Care Board’s (ICB’s) role in arranging Mr Y’s aftercare.
The ICB said that it does not usually arrange s117 aftercare for people in in-patient facilities, explaining that where a person’s aftercare requirements exceed the capacity of the commissioned service provider, (presumably the mental health Community Trust for the area, serving the needs of all people who are mentally unwell and providing what one might call the local offer) their case should be referred to the complex care panel.
If this were to happen, the ICB said that it would adopt a “supportive role in attending planning meetings if appropriate”.
The ICB said it was not involved in Mr Y’s aftercare planning until November 2023. But Mrs X was able to provide the LGSCO with an email she had sent to the ICB in September, expressing the difficulties she was facing and asking for advice. In response, an ICB staff member assured Mrs X that they would email others about the situation. The investigator’s position was that since neither the Trust nor the Council asked for the ICB’s input or assistance during this period the ICB was not at fault here.
Lack of carers’ assessments:
The LGSCO found further fault with the Council’s failure to complete the carers’ assessments it had offered Mr and Mrs X. The Council explained that this was due to a relationship breakdown with the Council, after which it allocated the family a new social worker to complete the assessment. However, no assessment took place even during the period of time the LGSCO was reviewing.
For this failure, the LGSCO held the Council at fault; Mr and Mrs X were entitled to receive carers’ assessments and they had significant responsibilities in caring for Mr Y, which was a source of stress. The fact that they may have been able to receive support for this was an injustice.
Consequently, the LGSCO agreed on the following actions with the Trust and the Council:
- Both the Trust and Council should make a written apology to Mr and Mrs X, acknowledging their faults and the impact this had.
- The Council should make symbolic payments of:
- £500 to Mr Y due to the uncertainty created by their delayed and ineffective s117 care planning;
- £400 to each of Mr and Mrs X for the uncertainty created both in regard to Mr Y’s care planning and also through the failure to complete the agreed care assessment.
- The Trust should make symbolic payments of:
- £300 to Mr Y for its contribution to the failure to produce a multi-agency s117 aftercare plan;
- £200 to each of Mr and Mrs X to reflect its partial fault which contributed to the uncertainty.
- The Council and Trust should improve their services, addressing their failure to take an effective multi-agency approach in s117 aftercare planning.
- the failure of Children’s Services to refer the case to Adult/Transitional Services in a timely manner;
- the failure to consider necessary support for the service user under s117 rather than under the Children Act 1989/Care Act 2014; and,
- the failure to take a fully multi-agency approach in agreeing to complete a s117 care plan in a timely manner.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
As the Mental Health Act 1983 Code of Practice makes clear, the planning of after-care under s117 must be integrated with any existing provision the young person is already receiving. In this case, Children’s Services approached Mr Y’s care plan under the Children Act 1989, instead of adopting a multi-agency approach to produce one jointly agreed plan to support Mr Y after his period of detention. This would have required discussions between the Council and the Trust regarding suitable after-care for Mr Y under the wider remit of s117, as opposed to Children’s Services’ usual duties under the Children Act 1989, or Adult Services’ duties under the Care Act 2014. If this had happened, the joint plan could have been presented to the Council and the ICB to request funding.
Mr Y’s transition from children to adult care services should have begun at an earlier date, to avoid disruption to the care and support he was receiving. During this transition, Children’s Services was required to continue supporting Mr Y to avoid any gaps in the care provided to him, up to and until support decided to be due from Adults’ Services was in place.
The LGSCO will always investigate both Councils and the relevant ICB when issues relating to s117 after-care are raised, as neither Councils nor ICBs can delegate aftercare decision-making duties. But it seems to us that the investigator here wholly failed to consider why it was that the ICB was taking such a back seat.
We think it was because it takes the position that its only input in people’s care plans under s117 is if they are complex, whereas if they are ‘standard’ then the local offer through the CMHT or Trust hospital, whichever has had delegated to it the s117 care planning function, but within a budget that the ICB does not expect to have to expand, so that it is saying that the final decision has not been delegated, inappropriately, then that will suffice to discharge the duty itself, or else the complex care panel can be requested to authorise additional spend.
We do not think that that is correct in law, because the whole point of s117 status is that it is a higher duty and a freestanding one than is owed to people under ordinary NHS obligations to deliver a comprehensive health service. That is a target duty, whereas the s117 duty is stronger and more individually specific than that, with a right to services – which must in this context BE available and timely – not queued for, we should not have thought, flowing from assessment and care planning professional judgment.
We also think that the ICB’s role was also taken too lightly by the investigator in this regard: since neither the Trust nor the Council asked for the ICB’s input or assistance during this period, the ICB was not at fault here – but the report itself says that the decision making cannot be delegated BY an ICB.
It is fundamental to children’s services provision that they continue unless or until taken over by Adults Service having made a proper decision on eligibility for adults’ support. The Ombudsman did not comment on how it could have been considered appropriate to refuse to continue the funding, from Children’s Services, when an adult plan was not yet in place.
Children’s Services continued to approach its care planning in terms of its responsibilities under the Children Act 1989. The investigator said that it should have begun thinking in terms of the Council’s overall responsibilities under s117 of the MHA and we think that this is correct; often it will be the case that a young person’s prior needs will obviously have been on account of mental disorder, even if that was not so clear here. That which was in a child ‘in need’ plan, would need to come out and up into a s117 plan in our view, as s117 ‘trumps’ other routes to a service, at least for those who are over 18 – and this young man so nearly WAS an adult when facing hospital discharge.
As per the Code, there should have been one overall, jointly agreed plan about what support Mr Y needed, to help prevent his readmission to a mental health hospital on account of his mental disorder.
The Trust’s staff’s mental health expertise was required to help the Council understand what type and level of support could be deemed to be necessary under s117, rather than through Children’s Services’ usual duties under the Children Act 1989, or Adult Services’ duties under the Care Act 2014. There needed to be a properly multi-disciplinary discussion about what could work Mr Y. This could then have been taken to the Council and the ICB to ask for funding.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Somerset Council (23 014 652) report.
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