The basis for our determination of the complaint

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Introduction

  1. In general terms, when determining complaints that injustice or hardship has been sustained in consequence of service failure and/or maladministration, we 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 to establish 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 organisations and individuals whose actions are the subject of the complaint. We call this establishing the overall standard.
  3. The overall standard 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 organisation or individual complained about constitutes a departure from the applicable standard.  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.
  5. The overall standard that we have applied to this investigation is set out below.

The general standard

  1. The Principles of Good Administration, Principles of Good Complaint Handling and Principles for Remedy are broad statements of what the Ombudsmen consider public organisations should do to deliver good administration and customer service, and how to respond when things go wrong.
  2. 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.
  3. One of the Principles of Good Administration particularly relevant to this complaint is:
    • ‘Getting it right’ – amongst other things, this means that all public organisations must comply with the law and have regard for the rights of those concerned.  They should act according to their statutory powers and duties and any other rules governing the service they provide.  They should follow their own policy and procedural guidance, whether published or internal. Public organisations must act in accordance with recognised quality standards, established good practice, or both – for example, about clinical care.

The specific standards

Legislation and statutory codes of practice

Mental Health Act 1983
  1. The Act sets out the law in relation to the assessment, care and treatment of people with a mental health disorder.  Section 3 provides for compulsory admission to hospital for treatment.  If a person is detained under this section and is subsequently discharged from hospital, they are entitled, under the provisions of section 117, to receive ‘after-care services’ (which are not defined in the Act).
  2. Section 117 requires local health authorities and local social services authorities (in this instance the Trust and the Council) to provide aftercare services, in co-operation with voluntary agencies, for persons discharged following detention under section 3.  Aftercare services must be provided until such time as the local health and social services authorities are satisfied that the person concerned is no longer in need of these services.
Mental Health Act 1983: Code of Practice
  1. In 1990 the Department of Health first published the Mental Health Act 1983: Code of Practice (the Code of Practice) for practitioners working within the framework of the Act.  Subsequent editions were published in 1993, 1999 and 2008.  Section 26 of the Code of Practice (1990 version) sets out guidance on the issue of aftercare services.  It states that the purpose of aftercare is to enable a patient to return to their home or accommodation, other than a nursing home, and to minimise the chances of them needing any future inpatient hospital care.
  2. The Code of Practice states that health and social services authorities should agree procedures for establishing ‘proper aftercare arrangements’.  It also stipulates that when a decision has been made to discharge a patient from hospital, the responsible medical officer must ensure that a discussion takes place to organise the management of the patient’s continuing health and social care needs.  This discussion will usually take place in ‘multi-professional clinical meetings’ held in psychiatric hospitals and units.  The Code of Practice stipulates that this discussion should involve the patient’s responsible medical officer, a nurse involved in caring for the patient in hospital, a social worker specialising in mental health work, the GP, a community psychiatric nurse, the patient, and any nominated representative.  Issues for consideration should include:
    • the patient’s wishes and needs;
    • the views of any relevant relative, friend or supporter of the patient;
    • establishing a care plan which is based on ‘proper assessment and clearly identified needs’, including day care arrangements, appropriate accommodation, outpatient treatment, counselling and personal support, assistance in welfare rights, and managing finances; and
    • the appointment of a key worker.
  3. The multi-professional discussion should establish an agreed outline of the patient’s needs and assets, taking into account their social and cultural background, and agree a timescale for implementation of the various aspects of the care plan.  The care plan should identify all key people with specific responsibilities with regard to the patient.
  4. The Code of Practice also stipulates that proper records should be kept of all those patients for whom section 117 could apply, and of those for whom arrangements have been made.  It states that care plans, when agreed, should be recorded in writing, and the care plan should be regularly reviewed.  The key worker (also known as the care co-ordinator) is responsible for arranging reviews of the plan until it is agreed that the plan is no longer necessary.  The senior officer in the key worker’s agency responsible for section 117 arrangements should ensure that all aspects of the procedures are followed in the care, assessment, review and discharge of patients who are entitled to receive aftercare services under the provisions of section 117.
National Health Service and Community Care Act 1990
  1. The National Health Service and Community Care Act 1990 sets out the duties of local social services authorities in respect of assessment of needs, and gives them overall responsibility for community care services.  This includes services arranged or provided under section 117 of the Mental Health Act 1983.
  2.  
  3. Section 47(1) of the National Health Service and Community Care Act 1990 states:
    ‘… where it appears to a local authority that any person for whom they may provide or arrange for the provision of community care services may be in need of any such services, the authority –
    (a) shall carry out an assessment of his needs for those services; and
    (b) having regard to the results of that assessment, shall then decide whether his needs call for the provision by them of any such services.’
The Care Programme Approach
  1. The delivery of all mental health services was framed within the Care Programme Approach (the Care Programme Approach), introduced by the Department of Health in 1991 as the principal strategy for the provision of mental health services within the community.  It continues to occupy a position of prime importance in mental health care.
  2. The main elements of the Care Programme Approach were systematic arrangements for assessing health and social needs of people accepted into specialist mental health services. They included: a multi-agency care plan; the appointment of a key worker to monitor and co-ordinate care (the care co-ordinator); and regular review of the care plan.
  3. In 1999 the Department of Health published a policy booklet, Effective Care co-ordination in mental health services: modernising the care programme approach (the Care Programme Approach guidance).  It set out the role of the care co-ordinator as having the responsibility for co-ordinating care, keeping in touch with the service user, ensuring that the care plan is delivered and reviewed as required, and that other members of the care team are advised about changes in the circumstances of the service user.  The Care Programme Approach guidance stated that systems should be in place to ensure that ‘the co-ordination of care and treatment is effective’.
  4. At the time of the events complained about, the Care Programme Approach was delivered according to either the standard or the enhanced level.  According to the Care Programme Approach guidance, patients on the standard level of the Care Programme Approach might include individuals who require support from one agency; were ‘more able to self-manage their mental health problems’; and who ‘pose little danger to themselves or others’.  Patients on the enhanced level of the Care Programme Approach might include individuals with a severe mental illness who have multiple care needs (for example, housing or employment); were likely to require ‘more frequent or intensive interventions, perhaps with medication management’; were more likely to have mental health needs co-existing with other problems; and were more likely to be a risk to themselves or others.  In practice, patients on the enhanced level of the Care Programme Approach required a greater level of support from more than one professional or agency, and more frequent review (for example, care plans reviewed on a six-monthly basis, as opposed to the yearly basis for patients on the standard level of the Care Programme Approach).
  5. Risk assessment is an essential and ongoing part of the Care Programme Approach process.  The Care Programme Approach guidance stated that people on the enhanced Care Programme Approach would have an appropriate multi-agency care plan to meet their needs, which would include detailed contingency and crisis plans.  It also stated that they would have a care co-ordinator allocated with clear responsibilities and tasks, as agreed by the care team.  The guidance stated that the care co-ordinator was responsible for keeping in close contact with the service user and for updating the basic care plan and crisis plan.  In respect of the care plan, the guidance stated that:
    ‘An individual service user’s care plan must be based on a thorough assessment of their health and social care needs. This assessment will involve the user and the carer, where appropriate, as central participants in the process.’
  6. The Care Programme Approach guidance also referred to the needs of patients’ families.  It stated that:
    ‘the process of the [Care Programme Approach] is clearly intended to deliver care to meet the individual needs of service users. However, those needs often relate not just to their own lives, but also to the lives of their wider family. The [Care Programme Approach] should take account of this.’
Mental Health Policy Implementation Guide: Community Mental Health Teams
  1. In 2002 the Department of Health published the Mental Health Policy Implementation Guide: Community Mental Health Teams (the Implementation Guide), which sets out the functions that CMHTs need to perform.  It states that CMHTs provide services to two key groups of people.  Most patients treated by the CMHT have time-limited disorders and are referred back to their GPs after a period of weeks or months.  However, a substantial minority of patients remain with the CMHT for ongoing treatment, care and monitoring for periods of several years.  This includes patients who require ongoing specialist care for: ‘[s]evere and persistent mental disorders associated with significant disability’ such as schizophrenia and bipolar disorder, or disorders where the level of support required exceeds that which a primary care2  team could offer.
  2. The Implementation Guide emphasised the importance of good communication and liaison amongst healthcare professionals, including primary care providers.  It highlighted the importance of good note-keeping, and also stated that: ‘families and carers should be involved in the [Care Programme Approach] as much as possible’.  The Implementation Guide also recommended regular team meetings including the consultant psychiatrist, where actions were agreed and changes in treatment for individual clients discussed with the whole team. The guide stressed the importance of managing physical health problems and stipulated that they should be identified and discussed with the GP.  In terms of arrangements for discharge and transfer from CMHT care, it stated that:
    • ‘Patients should be discharged back to primary care promptly when they are recovered …
    • ‘Discharge letters need to be comprehensive and indicate current treatment and procedures for re-referral...
    • ‘For patients with complicated care needs discussion at the liaison meeting is indicated before discharge.’
National Service Framework for Older People
  1. In March 2001 the Department of Health published the National Service Framework for Older People, which established eight national standards for the health and well-being of all older people whether they live at home, in residential care, or are being cared for in hospital.
  2. Standard two relates to ‘Person-centred care’, and aimed to ensure that older people were ‘treated as individuals and [that] they receive appropriate and timely packages of care which meet their needs’.  It referred to the ‘single assessment process’ that involves a detailed assessment of a patient’s health and social needs in the round, including physical and mental health needs.  It also stated that all older people should receive an assessment that is matched to their ‘individual circumstances’.  It stipulated 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 (cognition – thought processes, including dementia and depression); relationships; safety and immediate environment; and resources.  It recognised that assessment may identify the need for more specialist assessments – for example, when there is a specialist medical need such as cognitive impairment.
Fair access to care services – guidance on eligibility criteria for adult social care
  1. In January 2003 the Department of Health published Fair access to care services – guidance on eligibility criteria for adult social care (the Eligibility guidance).  It provided councils with social services’ responsibilities with a framework for determining eligibility for adult social care, and set out how they should carry out assessments and reviews, and support individuals through these processes.  The guidance stated that the decision on whether adults seeking social care support are eligible for help should be made: ‘following an assessment of an individual’s presenting needs’.  It goes on to stipulate that the: ‘scale and depth of the assessment should be proportionate to the individual’s presenting needs and circumstances’.
  2. Section 4 of the Eligibility guidance stated that reviews should be undertaken at regular intervals to ensure that the care provided to individuals is still required and is achieving the agreed outcomes.  These reviews should include a reassessment of an individual’s needs.

Health Service and Local Authority circulars

  1. In 1989 the Department of Health issued a health service circular, HC(89)5 Discharge from Hospital.  This stated that no patient may be discharged from a hospital until the doctors concerned have agreed, and management is satisfied, that everything reasonably practicable has been done to organise the care that the patient will need in the community.  This includes making arrangements for any necessary follow-up treatment and support in the home or the place they are being discharged to.  The patient or their relatives must be fully informed about medication, symptoms to watch for, and how to seek help if required.  One member of staff looking after the patient should be given responsibility for checking that the necessary action has been taken before a patient leaves the hospital.  There should be a checklist of the action taken and this should form part of the patient’s medical records.
  2. In 1989 the Department of Health also issued a local authority circular (LAC(89)7) that drew the attention of local authorities to HC(89)5 and requested that they review their existing procedures to ensure that patients do not leave hospital without adequate arrangements being made for their support in the community.
  3. In February 2000 the Department of Health issued a joint health service and local authority circular After-care under the Mental Health Act 1983: section 117 after-care services.  This set out changes in procedures relating to aftercare services following certain court judgments.  It stipulated that aftercare services could not be charged for, and that policies for section 117 aftercare should set out clearly the criteria for deciding which services fall under section 117 and which authorities should finance them. The section 117 aftercare plan should indicate which services are provided as part of the plan.  The circular stressed that section 117 aftercare does not have to continue indefinitely and the responsible health and social services authorities should decide in each case when aftercare services provided under section 117 should end, taking account of the patient’s needs at the time.  It stipulated that the patient, their carers and other agencies should ‘always be consulted’.
Advice and guidance on the funding of aftercare under section 117 of the Mental Health Act 1983
  1. In July 2003 the Local Government Ombudsmen published a special report entitled Advice and guidance on the funding of aftercare under section 117 of the Mental Health Act 1983 (the Local Government Ombudsmen’s report).  The report set out the law on this issue and the Local Government Ombudsmen’s consideration of complaints received about aftercare.  The Ombudsmen referred to a judgment on 28 July 1999 in which the High Court decided that charges may not be made for aftercare, including accommodation, provided under section 117.  The judgment also stated:
    ‘Aftercare provision does not have to continue indefinitely.  It must continue until such time as the health authority and local authority are satisfied that the individual is no longer in need of such services …
    ‘There may be cases where, in due course, there will be no need for aftercare services for the person’s mental condition, but he or she will still need social service provision for other needs, for example, physical disability.  Such cases will have to be examined individually on their facts.’
  2. The Local Government Ombudsmen’s report also referred to a circular sent to local authorities in February 2002, following the July 1999 judgment.  This stated that social services authorities who were still charging for aftercare services under section 117 should immediately cease to do so.  It stated that the decision that an individual no longer needs aftercare should be made while taking account of ‘the patient’s needs at that time’.  The authority responsible for providing particular services should take the lead in deciding when aftercare services are no longer required.  It stated that: ‘[t]he patient, his/her carer, and other agencies should always be consulted’.
  3. In considering a complaint about Leicestershire County Council, the Local Government Ombudsmen referred to the attempts to place a date on when aftercare (which in this case included accommodation at a care home) had ceased.  Leicestershire County Council said that, where a consultant had discharged someone from their care and that person did not require, or was no longer in receipt of, specialist mental health services, then they could be deemed to have been discharged from their entitlement to aftercare under section 117 at the point when the specialist services were withdrawn.  However, the Ombudsmen referred to the Government’s advice that consultation with the patient and their relatives must be part of the decision‑making process for aftercare, and that this must take place before a joint decision can be made by health and social services that aftercare is no longer required.  In this case, consultation was not possible because the patient had since died.  The Ombudsmen concluded that such a decision could not be made retrospectively and therefore the patient had been entitled to receive aftercare under section 117 until she died.
  4. The Local Government Ombudsmen highlighted the efforts of Wiltshire Council in identifying all those who should have been receiving aftercare.  The Council had reviewed case files from the relevant mental health teams and contacted care providers.  However, the Ombudsmen noted that the Council had found that there was no instant way of identifying all those entitled to restitution.  Where the Council had found cases where decisions had been made to discharge section 117 without the proper process being followed, they took the view that section 117 should continue to apply until a proper discharge was completed.
    ‘We see very little scope under the [Code of Practice] for a retrospective judgment to be made … that a patient’s status as a recipient of section 117 aftercare can have changed … For all those reasons a retrospective assessment may be found to be maladministration, subject always to the particular facts of each case.’
  5. The Local Government Ombudsmen said, with regard to retrospective decisions that aftercare is no longer necessary:     
  6. The Local Government Ombudsmen issued advice on the issue of aftercare, including:
    • ‘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 …
    • ‘that, where previous assessments to end section 117 aftercare were not properly made, then restitution will generally be appropriate until a proper assessment is devised …
    • ‘that people who have paid for section 117 aftercare are entitled to financial restitution with interest.’
  1. Primary care is a term used to describe community-based health services. It covers services provided by GPs, community or practice nurses, community therapists  (occupational therapists and physiotherapists), and dentists. [back]

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