Date of decision: 29 April 2024
Summary
A complaint was upheld about the failure of multiple agencies to provide joined-up mental health and social care to an autistic adult with a learning disability, resulting in repeated breakdowns in care, distress, and unmet needs for both the individual and his carer.
What happened
Mr B, who is autistic and has a learning disability, was discharged from hospital in 2017 after being compulsorily detained under the Mental Health Act 1983.
Miss D, his mother and informal carer, raised concerns from 2017 onwards about what happened regarding Mr B’s support arrangements from 2017 to 2019.
The Council said the CMHT merely opened and closed Mr B’s case as and when there was a presenting need.
Miss D contacted the Ombudsman in 2022 about the issues relating to Mr B’s entitlement to s117 aftercare and the problems she felt this had caused for his health and social care and support arrangements since his discharge from hospital. She also complained about the impact this had on her as a carer.
After considering Miss D’s complaint, the Ombudsman asked the ICB to undertake a complaint investigation. The Ombudsman asked it to liaise with the Trust from which it commissioned services and contact the Council because of the joint responsibilities (which are non-delegable by Health) relating to s117 aftercare.
What was found
The ICB’s handling of her complaint was poor, not meeting regulatory requirements, and was affected by delays and unsatisfactory responses.
The Ombudsman found wider fault in the way the Council, the Trust, and the ICB considered and provided support for Mr B’s mental health and social care needs. Mr B was left without formal support for around nine months in 2023, despite documented needs for assistance with daily living and maintaining his home environment.
There was no evidence of a s117 aftercare plan being prepared after his hospital discharge, despite his entitlement.
The organisations failed to work together to assess and meet Mr B’s holistic needs and did not properly consider their duty to make reasonable adjustments for his communication and sensory needs. The failure on the part of the organisations to assess Mr B holistically was fault. The organisations more than likely should have assessed Mr B in line with the CPA, as he was discharged in 2017.
The Council did not provide Mr B with the support he needed between January and November 2023, which had a significant adverse impact on his wellbeing and increased carer strain for Miss D. The available evidence supported the view that Mr B’s care and support arrangements had broken down on several occasions over the years. It was likely that the lack of a joined up approach was a contributory factor.
There were several opportunities for the Council, the ICB and the Trust to work together to address the inconsistencies around Mr B’s care and support arrangements, but there was little evidence to show this had happened.
The lack of joint working was likely to have impacted negatively on Mr B because his mental health and social care needs were not properly considered together. This was likely to have led to gaps in his care and support planning and provision.
The Council’s approach implied it acknowledged Mr B had a need for accommodation, i.e. “accommodation-plus” because of the needs arising from his mental health condition. Therefore, the ICB should have been involved in discussions with the Council and agreed on their respective responsibilities regarding Mr B’s s117 aftercare needs, including the funding of his accommodation. The Council had sourced supported housing for Mr B, as well as providing direct payments. It had paid towards his rent because of the possible s117 element. This was described by the Ombudsman as good practice by the Council.
The Trust had provided limited support to Mr B based on the fact that it felt he did not have a mental health diagnosis, despite a psychiatrist providing a diagnosis. It felt his issues were substance-use related, with which Miss D strongly disagreed. It also said he had failed to engage.
Miss D had asked the Trust to arrange a Care and Treatment Review on several occasions. The Council had contacted the Trust about a possible Care and Treatment Review in 2022, but the Trust had felt this was not required. It was unclear how the Trust decided a Care and Treatment Review was not required.
The Trust was aware that Mr B’s behaviours had placed him at considerable risk on occasion. Miss D said that because her son is autistic and has a learning disability, he was vulnerable, and other people had encouraged him to participate in offending behaviour or criminal activity. The Trust should have acted to ensure Mr B’s mental health and social care needs were kept under review under the CPA because of these risks. The Ombudsman did not see evidence to show it had done this, and this was fault.
The Council’s commissioned support provider ended its involvement in January 2023, leaving him without support, whilst previous assessments completed by the Council confirmed that Mr B needed formal support to maintain his home environment, dressing and undressing and needed prompts for all of this; Miss D provided him with significant informal support; and there would be a significant impact on his wellbeing if he were without support.
The failure of the Council to provide formal support to Mr B for this period was likely to have had a significant impact on his wellbeing. It is likely this situation caused Miss D to experience carer’s strain and is likely to have had an adverse impact on her mental wellbeing.
The ICB should have been aware of Mr B’s case and agreed on joint care arrangements with the Council.
The Council had offered Miss D carer’s assessments, but Miss D said that the problems with Mr B’s care and support arrangements adversely impacted on her mental wellbeing to the point she had to seek professional help.
The Council, and the Trust (and ICB) did not provide documentary evidence to show what reasonable adjustments they had formally agreed with Mr B. Because of this, they could not say what reasonable adjustments they had made and recorded to ensure their staff remained aware of Mr B’s communication needs and the specific reasonable adjustments he needed. This was fault.
The failure properly to consider, make and record what reasonable adjustments Mr B needed may have contributed to the view from practitioners that he was not engaging with services or that he was disinterested. Mr B said during the Council’s assessment that he found it difficult to engage with professionals. The organisations should have considered this when communicating with him about his mental health and social care support needs.
Miss D had concerns about Mr B’s capacity to make specific decisions. When a social worker decided Mr B had the capacity to make decisions about his care and support needs, he was intoxicated, and this was the first time the social worker had met him. She said the social worker presumed Mr B had the capacity to decide he did not want support. Any Mental Capacity Assessment completed should have considered whether Mr B was under the influence of alcohol and the impact of this on his ability to make decisions.
The response the ICB sent to Miss D was disappointing and did not align with the principles of good complaint handling. It could have provided Miss D with some of the answers she wanted because it was uniquely positioned to liaise with the Trust and the Council. It did not ensure Miss D received a co-ordinated response to her complaint. The fault was likely to have caused Miss D distress, frustration and outrage over a prolonged period. It is also likely to have led to her spending additional time and trouble in pursuing a complaint which could have been effectively dealt with by the ICB and coordinated with the Trust and the Council.
Within one month of the Ombudsman’s decision, the Council, the ICB and the Trust were to agree which agency would coordinate a holistic assessment of Mr B’s mental health and social care needs when he is ready and available for the assessment to take place. They were to ensure any needs which fell under s117 aftercare were properly recorded as such and joint funding agreed.
The organisations were to ensure that Mr B and Miss D were fully involved in the assessment and support planning process, and their views and comments were to be properly recorded. The organisations were to make reasonable adjustments where required and ensure Mr B’s capacity to make specific decisions is formally assessed if necessary. Copies of the documentation were to be provided to Mr B and Miss D.
The Trust was to consider whether a Care and Treatment Review was required, and would write to Miss D and the Council with the outcome and a rationale.
The Council was to consider the support Mr B lost out on to meet his eligible needs for around nine months to see what lessons could be learned.
The Ombudsman recommended symbolic payments: £1,000 to Mr B (via Miss D) for the loss of support, £600 collectively to Miss D for the impact on her wellbeing, and a further £350 to Miss D for the poor complaint handling by the ICB.
The agreed lead agency was to write to Miss D and apologise for the lack of a joined-up approach, acknowledging the adverse impact this had on her. The ICB was to write separately to apologise for its poor complaints handling.
Within two months, the organisations were to provide the Ombudsman with a copy of the agreed s117 aftercare policy and procedures document, ensure they have guidance in place for their staff to follow regarding the reasonable adjustment duty set out in the Equality Act 2010 and provide training or a reminder to their staff as necessary. The ICB was to ensure staff who deal with complaints are provided with training on effective complaint handling and are made aware of the principles of good complaint handling.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This is a good example of the public law legal framework in action, albeit through the auspices of an Ombudsman’s complaint decision. The Trust said when he was assessed at the time of discharge (in 2017) a clinician was of the view that Mr B’s needs would predominantly be those relating to social care. There was no evidence to show this was written into an aftercare plan.
It seems to us that the man had been consistently assessed under the Care Act, as if the organisations did not know that the Mental Health Act s117 ‘trumps’ ordinary adult social care duties, because of the breadth of the statutory purpose of s117 and its non-chargeable implications. The fact that the CMHT treated him as an ordinary patient suggests there was no real understanding that he had s117 status.
The Mental Health Act 1983 imposes a duty on health and social authorities to provide aftercare services under s117 for those discharged after detention under certain sections of the Act. This aftercare must be free and should be interpreted broadly, including health and social care, employment, and supported accommodation.
The fact that it is a joint duty is significant: The organisations said they were developing a joint policy which was ‘almost finalised’. One wonders how they managed without one! The Council had accepted sole funding responsibility for Mr B’s care despite the lack of joint agreement.
And it did not charge Mr B for the care and support it provided as well as paying towards his accommodation. The implication of the report is that it should have been paying the rent in full but the Ombudsman does not dwell on that problem.
The Care Programme Approach (CPA) requires comprehensive assessment, care coordination, and regular review of mental health and social care needs.
A Care & Treatment Review (CTR) is a meeting about an adult who has a learning disability and/or autism and who is either at-risk of being admitted to, or is currently detained in, an in-patient (psychiatric) service. CTRs are part of a national programme led by NHS England called Transforming Care.
The Mental Capacity Act 2005 requires a presumption of capacity unless the contrary is established on the balance of probabilities, with all practicable steps taken to support capacitated decision-making.
The Equality Act 2010 requires organisations to make reasonable adjustments to ensure disabled people can access services.
The Local Authority Social Services and National Health Service Complaints (England) Regulations 2009 require effective, co-ordinated complaint handling. In this case, the failure to ensure joint working and to properly assess and support Mr B’s needs amounted to a breach of statutory duties, with serious consequences for his wellbeing and that of his carer. Councils and health bodies must proactively work together to agree aftercare plans, make reasonable adjustments, and ensure robust complaint handling.
The Complaints Regulations say that the organisations must “co-operate for the purpose of (a) coordinating the handling of the complaint; and (b) ensuring that the complainant receives a coordinated response to the complaint.” This involves a duty on each of them to agree who should take the lead in coordinating the handling of the complaint and communicating with the complainant. They must both provide each other with relevant information if so requested by the other and must attend, or ensure they are represented at any meeting held about the complaint.
The Code of Practice to the Mental Health Act provides detailed guidance on aftercare planning. The Responsible Clinician should co-ordinate aftercare needs being fully assessed by the Council under section 47 of the 1990 National Health Service and Community Care Act, and planned within the framework of the Care Programme Approach.
Care Planning is supposed to include consideration of any specific needs arising from learning disability or autistic spectrum disorder or drug and alcohol or substance misuse – this is covered in NHS England’s Guidance for s117 Discharge from January 2024. It has a section on service users with these additional difficulties. We have never seen the Ombudsman’s reports referring to this Guidance.
That publication highlights the importance of involving chosen carers and information sharing across relevant health and care teams and organisations. There is specific guidance for particular groups of people, including those with a learning disability and autistic people. It also refers to the need for making a personalised care and support plan available to support discharge, with input, where relevant, from family members, chosen carers, and relevant professionals and highlights the requirement to make reasonable adjustments under the Equality Act 2010.
The Ombudsman found good reason for going back as far as 2017, and this fits with the approach the courts would take in a scenario of what is known as ‘continuing breach of duty’
Please use the following link to read the original Local Government and Social Care Ombudsman’s West Northamptonshire Council (22 009 742) report
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ opinions provided in response will then serve both you and the broader community when posted.
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