Annex B – The basis for the Ombudsmen’s determination of complaints

Introduction

1. In simple terms, when determining complaints that injustice or hardship has been sustained in consequence of service failure and/or maladministration, we generally begin by comparing what actually happened with what should have happened.
2. So, in addition to establishing the facts that are relevant to the complaint, we also need a clear understanding of the standards, both of general application and those which are specific to the circumstances of the case, which applied at the time the events complained about occurred, and which governed the exercise of the administrative and clinical functions of those bodies and individuals whose actions are the subject of the complaint. We call this establishing the overall standard.
3. The overall standard accordingly has two components: the general standard, which is derived from general principles of good administration and, where applicable, of public law; and the specific standards which are derived from the legal, policy and administrative framework and the professional standards relevant to the events in question.
4. Having established the overall standard, we then assess the facts in accordance with the standard. Specifically, we assess whether or not an act or omission on the part of the body or individual complained about constitutes a departure from the applicable standard.
5. If so, we then assess whether, in all the circumstances, that act or omission falls so far short of the applicable standard as to constitute service failure or maladministration.
6. The overall standard we have applied to this investigation is set out below.

The general standard

Ombudsman’s Principles

7. In February 2009 the Health Service Ombudsman republished her Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy.1 These are broad statements of what she consider public bodies should do to deliver good administration and customer service, and how to respond when things go wrong.
8. The same six key Principles apply to each of the three documents. These six Principles are:
   • Getting it right
   • Being customer focused
   • Being open and accountable
   • Acting fairly and proportionately
   • Putting things right, and
   • Seeking continuous improvement.
9. We have taken all of these Principles into account in our consideration of Mr K’s complaint.

Disability rights considerations

10. At the time relevant to this complaint, public bodies (and some other bodies with public functions) and service providers had to comply with the Disability Discrimination Act 1995 and the Disability Discrimination Act 2005, including the duty to make reasonable adjustments. (From 1 October 2010 the
    Equality Act 2010 replaced most of the disability discrimination acts.) They also had to have regard to the various statutory codes of practice that had been published to assist in the interpretation of the legislation.
11. Under the Disability Discrimination Act 2005, public bodies had a general duty to eliminate discrimination and harassment, to promote equality of opportunity and positive attitudes, to encourage participation in public life, and to take steps to take account of disabled persons’ disabilities, even where that involved treating disabled persons more favourably than other persons.
12. It is not the role of the Ombudsmen to
    adjudicate on matters of disability discrimination law or to determine whether the law has been breached: that is a matter for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations.
13. If it appears that someone’s disability rights are engaged in relation to the events complained about, they will expect the public body, in accordance with the Principles of Good Administration, to have had regard to those rights in the way it has carried out its functions, and to have taken account of those rights as a relevant consideration in its decision making.
14. If the public body is unable to demonstrate that it has done so, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.
15. In cases where the Ombudsmen identify maladministration and/or service failure, it does not necessarily follow that they will also find that injustice has been caused as a result.

Human rights considerations

16. The Human Rights Act 1998, which came into force in England in October 2000, requires public authorities to act in a way that is compatible with the European Convention on Human Rights. Of particular relevance to Mr K’s complaint are the following rights contained in the European Convention on Human Rights:
    • Article 5 – right to liberty,
    • Article 8 – right to respect for private and family life,
    • Article 14 – prohibition of discrimination.
17. Public bodies (and some other bodies with public functions) must comply with the Human Rights Act 1998. Underpinning human rights law are the key principles of fairness, respect, equality, dignity and autonomy.
18. It is not the role of the Ombudsmen to adjudicate on matters of human rights law or to determine whether the law has been breached: those are matters for the courts. The Health Service Ombudsman’s Principles of Good Administration do, however, state that the Principle of ‘Getting it right’ includes acting in accordance with the law and with regard for the rights of those concerned, and taking reasonable decisions based on all relevant considerations.
19. If it appears that someone’s human rights are engaged in relation to the events complained about, they will expect the public body, in accordance with the Health Service Ombudsman’s Principles of Good Administration, to have had regard to those rights in the way it has carried out its functions, and to have taken account of those rights as a relevant consideration in its decision making.
20. If the public body is unable to demonstrate that it has had regard for, and taken account of, human rights, the Ombudsmen will take that fact into account when considering whether there has been maladministration and/or service failure.
21. In cases where the Ombudsmen identify maladministration and/or service failure, it does not necessarily follow that they will also find that injustice has been caused as a result.

The specific standards

Health and social care: relevant legislation, guidance, policy and professional standards

22. The main purpose of the Mental Health Act 1983 (MHA – subsequently amended by the Mental Health Act 2007) is to allow compulsory action to be taken, where necessary, to make sure that people with mental disorders get the care and treatment they need for their own health or safety, or for the protection of other people. It sets out the criteria that must be met before compulsory measures can be taken, along with protections and safeguards for patients. Part 2 of the MHA sets out the civil procedures under which people can be detained in hospital for assessment or treatment of mental disorder. Detention under these procedures normally requires a formal application by either an approved mental health professional or the patient’s nearest relative, as described in the Act. An application is founded on two medical recommendations made by two qualified medical practitioners, one of whom must be approved for the purpose under the Act. Different procedures apply in the case of emergencies.
23. The Chronically Sick and Disabled Persons Act 1970 places a duty on local authorities to: 
    • inform itself of the need for making arrangements for disabled persons within its area;²
    • arrange practical assistance in the home and provide any adaptations or additional facilities designed to secure greater safety, comfort or convenience by directly providing equipment, adaptations, loans or grants.³
24. The National Health Service and Community Care Act 1990 clarified that local authorities had a duty to assess the individual community care needs of any person who, in their view, required services, to decide what services should be provided, and to notify and invite assistance from health or housing bodies where appropriate.⁴ The duty, however, remains on the social services authority to meet the assessed needs of a disabled person, even if that need is a housing need.  A social services authority can, therefore, invite a housing authority to assist it to meet a housing need, but if such assistance is not forthcoming the social services authority must act.
25. Moving into the Mainstream: The Report of a National Inspection of Services for Adults with Learning Disabilities, a report by the Department of Health (DH), was issued to local authorities in 1998 and set out best practice guidance about the planning and provision of services for people with learning disabilities. This included the following:
    • Standard 1: ‘Responsive services’ stated: ‘the local authority arranges and provides, in partnership with other organisations, services which are responsive to the assessed needs of adults with learning disabilities’.
    • Criteria 5 and 6, under Standard 1, stated: ‘People with learning disabilities [should] have personally planned programmes of day activities [and] … undertake employment and other meaningful activities’.

    The criteria under Standard 2 (‘Assessment, care planning and case management’) included ‘As a result of their involvement in the care planning process service users and carers receive the services they need and prefer. …’. Under Standard 3: ‘Information, communication and consultation’, Criteria 3 stated: ‘the social services Directorate consults with users and carers … [about] individual and service planning’.

26. In Valuing People: A New Strategy for Learning Disability for the 21st Century: a White Paper (2001) the DH outlined the future strategy and objectives for improving the lives of people with learning disabilities. It identified four key principles: legal and civil rights (including rights to education, to vote, to have a family and to express opinions); independence; choice; and inclusion.
27. Objective 6 of the White Paper was: ‘To enable people with learning disabilities and their families to have greater choice and control over where and how they live’.
28. Another of the targets set by the White Paper was: ‘All people with a learning disability to have a Health Action Plan by June 2005’. The intention was that these Plans would provide an overview of actions needed to keep a person healthy, linking them with a full range of services and support. (Action for Health – Health Action Plans and Health Facilitation – Detailed Good Practice Guidance on Implementation for Learning Disability Partnership, DH, 2002.)
29. The Care Programme Approach (CPA) was introduced in 1991 after the publication of
    HC (90) 23/LASSL (90) 11 by the Department of Health.  It provided a framework for effective mental health care. It was updated by a further publication by the Department of Health Effective care co-ordination in mental health services: modernising the care programme approach in 1999.  Its four main elements are:
    1. Systematic assessment of the health and social needs of people accepted into specialist mental health services.
    2. A care plan identifying health and social care from a variety of providers.
    3. The appointment of a key worker to monitor and co-ordinate care.
    4. Regular review.
30. In a policy statement, Making decisions on behalf of mentally incapacitated adults the Lord Chancellor’s Office, in 1999, set out proposals to reform the law relating to the provision of care and treatment to people who lacked the capacity to consent. (This, in turn, led to the passing of the Mental Capacity Act 2005, the provisions of which have since been phased in.)
31. To accompany Health Service Circular 2001/023, Good Practice in Consent: achieving the NHS plan commitment to
    patient-centred consent practice, the DH produced an implementation guide containing blank pro formas to be used by clinicians ‘where it would be usual to seek written consent but an adult patient … lacks capacity to give or withhold consent to treatment’. The implementation guide states, at paragraph 6, that:  

    ‘Where an adult does not have the capacity … this fact should be documented [on the pro forma] along with the assessment of the patient’s capacity, why the health professional believes the treatment to be in the best interests, and the involvement of people close to the patient. …’

32. The DH issued interim guidance in December 2004 following what became known as the Bournewood case, which involved a man with autism and a learning disability who the European Court of Human Rights ruled had been deprived of his liberty. The European Court said that the question of whether someone had been deprived of their liberty depended on individual circumstances. The man in question had not had the capacity to consent to his admission to hospital. The fact that the man had not attempted to leave the hospital, or that had he tried to he would have been detained in his own best interests, did not of itself mean that the man was not being ‘detained’ by the hospital. The European Court said that the distinction between deprivation and restriction of liberty was ‘one of degree or intensity and not one of nature or substance’. The Court went on to rule that the absence of procedural safeguards surrounding admission at Bournewood Community and Mental Health NHS Trust had failed to protect the patient against arbitrary deprivation of liberty on grounds of necessity, and therefore failed to comply with Article 5 of the European Convention on Human Rights. The European Court was also concerned that staff might be able to assume:  

    ‘full control of the liberty and treatment of a vulnerable incapacitated individual solely on the basis of their own clinical assessments completed as and when they saw fit.’

33. The DH advised health and local authorities that the effect of the judgment was that it would be unlawful (without the authorisation of the High Court) to provide care or treatment for an incapacitated patient in a way that amounted to deprivation of liberty unless the patient were detained under the MHA. Given that the NHS and local authorities would still need to care for incapacitated patients whose safety and quality of care should not be compromised, they would need to consider interim action to protect against the risk of arbitrary deprivation of liberty:

    ‘[Bodies] will want to ensure they have systems in place so that when making arrangements to provide care to an incapacitated person which involves a restriction on the liberty of that person consideration is given to whether what they are proposing amounts in practice to a deprivation of that person’s liberty … The same question will need to be asked when reviewing the circumstances of those people who they have already placed …’

34. The DH gave examples of relevant good practice for NHS bodies and local authorities:
    • taking decisions in a structured way;
    • documented care planning, involving family, friends and carers;
    • considering alternatives to admission to hospital or residential care;
    • providing appropriate information to patient, family, friends and carers;
    • helping patients retain contact with family, friends, and carers; and
    • ensuring that assessment of capacity and care plans were kept under review.
35. Chapter 2.3 of Assessment of Mental Capacity: Guidance for Doctors and Lawyers – produced jointly by the British Medical Association and the Law Society – second edition 2004, stated:

    ‘Where there are doubts about capacity, it is important that people are assessed when they are at their highest level of functioning because this is the only realistic way of determining what they may or may not be capable of doing.’

36. The Supporting People programme, an initiative of the Department of Communities and Local Government, launched on 1 April 2003, aimed to enable vulnerable people to live more independently and maintain tenancies by providing support to prevent hospitalisation, institutional care or homelessness. This programme was delivered locally by 150 administering authorities and more than 6,000 providers: 

    ‘A working partnership of local government, probation, health, voluntary sector organisations, housing associations, support agencies and service users’ [to] ‘encourage collaborative working between stakeholders of the programme … Partnership is paramount.’

Your Choice Homes

37. For the period of the events in this complaint the Council had entered into a partnership with local housing associations and introduced a choice-based bidding scheme called Your Choice Homes. Within the terms of the scheme, registered applicants could bid for up to three advertised properties a week. Urgent needs for re-housing were given priority. The terms of Your Choice Homes, ‘Information for Applicants’, included: ‘A customer can also nominate someone to bid on their behalf’.

The Coquet Trust’s role

38. The Coquet Trust’s contract with social services5 stated that ‘the object of the agreement is to provide housing support’ for Mr J and his wife. The list of support tasks included: advice on food preparation or storage, shopping, social events and good neighbour tasks. It did not include care planning and review.
39. The Coquet Trust’s own mission statement included: 
    1. ‘To offer … choice, rights and … independence for service users.
    2. ‘To work in partnership with social services, care agencies and housing provider to ensure quality standards are continuously achieved and improved upon.’

Complaint handling

The Council’s complaint handling

40. Social services authorities have a duty to provide a complaints procedure and the statutory complaints process applicable to this complaint was that contained within The Complaints Procedure Directions 1990 (the 1990 Directions – since superseded by 2006 Regulations).
41. The 1990 Directions established a three-part process: a first (informal) stage; a formal second stage if the complainant remained dissatisfied – the matter being considered at Stage 2 by a designated complaints officer, and an investigator might be appointed. At Stage 3, the complainant had the right to request an independent panel review of the Stage 2 investigation. Stage 1 is essentially an opportunity for the local authority to attempt problem solving and conciliation and there is no statutory timescale for its completion. It is, however, possible to go straight to Stage 2 if either the complainant so wishes or the local authority considers it appropriate. At Stage 2, the local authority must respond to the complaint within 28 days or alternatively explain why this is not possible – and then, in any case, respond within three months. If the complainant is not satisfied, and he or she writes to that effect within 28 days, then the local authority has to appoint a review panel, which must meet within 28 days, and then within 24 hours issue its written recommendations to the relevant parties to the complaint. The local authority must then decide what to do, and write telling those parties within 28 days.

NHS complaint handling

42. The NHS (Complaints) Regulations 2004 created the procedure applicable to Mr K’s complaint, with provision for handling at local level by NHS bodies; if the complainant was dissatisfied, the complaint was given further consideration by the Healthcare Commission. If the complainant remained dissatisfied, then the matter could be referred to the Ombudsman for consideration.
43. In certain circumstances, if the Healthcare Commission took the view that it would be more appropriate for a complaint referred to them to be considered by the Health Service Ombudsman, then they could refer the matter direct to the Ombudsman without any further involvement on their part.