Our findings
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- We have considered all the available evidence about Miss M’s complaint and taken account of clinical advice which, we note, is finely balanced. We have reached the following conclusions.
Section 117 funding
- In 1989 Mrs M was detained under section 3 of the Act and as such was eligible for free aftercare, with funding of service provision under section 117. When responding to Miss M’s complaint, the Trust did not provide consistent explanations about Mrs M’s discharge from section 117 provision. They initially said that discharge was in 1996 when the consultant psychiatrist had referred Mrs M to her GP. But after further research of Mrs M’s medical records, they said that it had taken place in 1989, at the time of her discharge from the section 3 detention. At neither time had the Council and the Trust followed any specific procedures for discharge from section 117 funding, and the Trust have recognised that they did not have the documentation to back up the discharge. We note that the Code of Practice (paragraph 24) that contains specific guidance about this was not published until 1990 – after Mrs M’s discharge. Nevertheless, in our view, the failure by the Trust to consider Mrs M’s eligibility for section 117 funding at any contemporaneous stage was maladministrative. We now consider whether this maladministration by the Trust was the cause of an injustice to Mrs M.
- The Code of Practice, with its specific guidance on arrangements for funding of, and discharge from, section 117 provision, was issued in 1990. When Mrs M had been discharged from the section 3 detention in June 1989, she had not been included on any register of patients or service users being funded under section 117, or for whom section 117 would apply (as later advised in the Code of Practice). The services which Mrs M received on her discharge from the section 3 detention – occupational therapy, follow‑up appointments with her consultant psychiatrist, and clinic attendances – were arranged in the usual way through the NHS, and no provision was made for any other specific services for which funding under section 117 of the Act was required. (‘After‑care’ under section 117 is not defined in legislation or other guidance, but it is primarily aimed at preventing the need for further admissions to hospital or nursing care.) In any event, for 15 years after the 1989 discharge from section 3, Mrs M did not pay for any service provision for which section 117 might have been relevant. When the Council reviewed their records in 2002, Mrs M was not identified as a service user for whom procedures relating to the discharge from section 117 had to be reconsidered.
- We have noted that the special report issued by the Local Government Ombudsmen in 2003 advised that, in general, social services authorities should not carry out retrospective assessments purporting to remove a person from section 117 aftercare as from an earlier date. However, it seems to us that Mrs M’s case can clearly be distinguished from the cases considered in the special report, where the service users had all been detained under section 3 during the 1990s, and had all been placed in residential care relatively soon after discharge from section 3. Also, the starting point in all these cases had been an acceptance that section 117 aftercare was being provided – which is not the case here.
- Our Medical Adviser has suggested that if one were to accept that section 117 was in fact being provided upon discharge in 1989, it might be possible to assume a continuous link from that date until the admission to the Care Home in 2004. However, we have seen that in the period following Mrs M’s discharge from the section 3 detention in 1989, it seems that there had been nothing to prompt the Trust or the Council to review her need for section 117 provision. She continued to suffer from mental illness (as she had done for many years), but had periods when her condition was relatively stable and she did not require provision of additional or specific services for which section 117 would have applied. It does not seem to us that entitlement to free services should continue perpetually, regardless of intervening events and changing personal circumstances. We do not see any firm basis for concluding that such an eligibility continued up to the point of admission to the Care Home. In the particular circumstances of Mrs M’s case, we do not consider that the lack of a specific discharge from section 117 obliges the Council to accept her as having been eligible for section 117 funding in 2004, many years after the section 3 detention was discharged. The evidence about the underlying nature of Mrs M’s need to be admitted to residential care seems mixed. The key point is that we cannot say with any degree of certainty that the admission to the Care Home can be linked directly to aftercare needs that might have been present in 1989. We cannot, therefore, conclude that the failure to consider Mrs M’s eligibility for section 117 definitely led to an injustice to her or her family.
The admission to the Care Home
- We see no grounds to criticise the arrangement made for Mrs M’s placement at the Care Home. It was apparently an appropriate response to her needs at the time and was initially intended as a respite measure. Miss M maintains that she was told that it was only arranged because there were no hospital beds available. However, the community psychiatric nurse says that this was not the case; and there is no other evidence to support Miss M’s recollection. The records do not indicate that a hospital placement was considered appropriate at that time.
- It is not disputed that Mrs M continued to suffer symptoms of mental illness before and after her admission to the Care Home. The possibility of a link between her physical deterioration and her mental health was recognised and investigated after her admission to the Care Home, as noted in referrals to consultant physicians and consultant psychiatrists for assessment of the cause of the physical deterioration. Because of her increased physical disability, Mrs M continued to require residential care and support, which was provided in the Care Home.
- Although we recognise that, inevitably, Mrs M’s deterioration over time can be seen as the result of combining mental and physical ill health, we do not consider that the circumstances of Mrs M’s placement at the Care Home warrant a recommendation that the very significant costs involved should be funded under section 117 of the Act. We do not conclude that there is clear evidence that this should be the case.
The discharge from the CMHT
- It is clear that Mrs M’s discharge from the CMHT did not accord with the prescribed procedures or guidance. The only written records relate to action taken by a social worker. There is no record of consideration in a multidisciplinary meeting of the proposal to discharge her, and no record of the involvement of the consultant psychiatrist or Mrs M and her family in the decision. In our view, this was maladministration.
- However, we do not consider that this was the cause of an injustice to Mrs M or her family, because we see no reason to conclude that service provision for Mrs M would have been different had the discharge followed appropriate procedures. Mrs M was receiving full-time support for her daily living needs from the staff at the Care Home. Her mental health fluctuated, but she continued to be treated with medication. The evidence indicates that Mrs M was clinically fit for discharge from the CMHT and that it was reasonable to conclude that she did not require continuing specialist input from the CMHT at that time. The care plan noted that staff at the Care Home were aware that a re-referral could be made to the CMHT, should the need arise.
Provision of care by the Trust between 2004 and 2009
- Mrs M’s physical needs were supported by the Care Home; and her health needs, including her mental health needs, were then the responsibility of her GP. The Trust’s occupational and physiotherapy service were involved in January 2008, and recommended a programme of physical exercise. Until 2008 no concerns were raised about the suitability of Mrs M’s placement at the Care Home, and staff there felt able to meet her needs.
- Miss M feels very strongly that her mother’s mental and physical needs should have been addressed more proactively by the Trust during the time her mother was resident at the Care Home. She has stated that, if it had been, her physical deterioration would not have progressed in the way it did. However, in our view, the available evidence does not support her contention that there was fault by the Trust or by the Council in the provision of care during this period.
Transfer of responsibility for care to the Council’s ASC team
- The CMHT had closed Mrs M’s case in 2005. In 2008 they responded to an approach from Miss M and assessed whether Mrs M would be eligible for NHS continuing healthcare funding. They also dealt with the complaint that Miss M subsequently made, but Mrs M’s case was not re-opened by the CMHT because they did not consider that there was a need for specialist input from mental health services.
- It became clear in late 2008 that Mrs M did require support, because of the threat to her placement in the Care Home following an eviction notice after a fee increase had not been paid. At that stage Mrs M’s principal need was not for mental health support, but for support to ensure that she had somewhere appropriate to live. We consider, therefore, that it was reasonable for the case to be passed to the ASC team and for a social worker to be allocated to undertake an assessment of need. We see no evidence of fault by the Council or by the Trust here.
- Miss M complains that the transfer to the ASC team deprived her of assistance from the CMHT’s senior practitioner, led to the cancellation of the meeting at which this would be discussed, and prevented her from pursuing her complaint about the Trust. It is true that the senior practitioner did not continue her involvement after the case was opened by the ASC team, and that this was the reason for the cancellation of the planned meeting. However, this seems to us a reasonable consequence of the decision that the ASC team was the appropriate body to address Mrs M’s needs at that time. The transfer to the ASC team did not prevent Miss M from pursuing her complaint about the Trust.
The assessment following transfer to the ASC team
- The National Service Framework for Older People (paragraph 39) makes it clear that in assessing the need for services, local authorities should follow a person-centred approach; and that the scale and depth of the assessment should be proportionate to the individual’s presenting needs and circumstances. It stipulates that the single assessment process should consider the user’s perspective; their clinical background; disease prevention; personal care and physical well-being; their senses; mental health; relationships; safety and immediate environment; and resources. It recognises that assessment may identify the need for more specialist assessments.
- The social worker who undertook the assessment of Mrs M’s needs in January 2009 followed the usual procedures and concluded that her placement at the Care Home was appropriate. The record of the assessment indicates that the social worker took account of Mrs M’s health needs and her history of mental illness. She considered that the assessment was proportionate to Mrs M’s presenting needs, and saw no reason to seek specialist advice.
- Miss M was concerned that the assessment had not included an in-depth assessment of her mother’s mental health and the causes of her physical decline. The ASC team considered Miss M’s concerns but did not agree that the assessment had failed to address relevant issues. In response to Miss M’s complaint about this, the ASC team offered to arrange for a new assessment by a different social worker, but Miss M did not pursue this offer.
- We see no reason to criticise the approach followed by the ASC team. The evidence indicates that the ASC team took account of Mrs M’s presenting needs and other relevant information, and reached a view after following procedures that accorded with the relevant guidance.
- We see no grounds to criticise the ASC team’s decision to proceed with the planned review arranged for August 2009, after considering Miss M’s response to the invitation to the review. The evidence is not conclusive about whether Mrs M’s advocate was invited as she should have been. But in any event, we see no reason to believe that the outcome of the review would have been any different if the advocate had attended – which is the view of the advocate herself.
