Our investigation
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The Health Service Ombudsman for England gave authority for an investigator from the Office of the Public Services Ombudsman for Wales to carry out her investigative functions.
The investigator obtained comments and copies of relevant documents from the three organisations complained about, and these have been considered in conjunction with the evidence supplied by Mrs S. Miss S provided a written statement. The investigator also obtained clinical advice from a professional adviser - an experienced consultant psychiatrist (the Adviser).
Mrs S and the three bodies complained about were given the opportunity to comment on a draft of this report before the final version was issued.
We have not included every detail of the investigation in this report, but we are satisfied that no matters of significance have been overlooked.
The basis for our determination of the complaint
We have assessed the actions of the PCT, the Trust and HCW against an overall standard with 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.
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.
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.
The overall standard that we have applied to this investigation is set out below.
The general standard
Principles of Good Administration
Since it was established, the Office of the Health Service Ombudsman for England (and previously for England and Wales) has developed and applied certain general principles of good administration in determining complaints of service failure and maladministration. In March 2007 the Health Service Ombudsman for England published these established principles in codified form, after consultation with others, including the Public Sector Ombudsmen in the United Kingdom, in a document entitled Principles of Good Administration. This document was adopted and published by the Public Services Ombudsman for Wales in March 2008 as being appropriate guidance for Welsh public bodies in good administrative practice.
The document organises the established principles of good administration into six Principles. These Principles are:
- Getting it right
- Being customer focused
- Being open and accountable
- Acting fairly and proportionately
- Putting things right, and
- Seeking continuous improvement.
We have taken the Principles of Good Administration into account in our consideration of Mrs S's complaint.
Principles for Remedy
In October 2007, after further consultation with other Public Sector Ombudsmen in the UK, the Health Service Ombudsman for England published a document entitled Principles for Remedy. This document sets out the Principles that should guide how public bodies provide remedies for injustice or hardship resulting from their service failure or maladministration. It sets out how public bodies should put things right when they have gone wrong, and confirms her own approach to recommending remedies. The Principles for Remedy flow from, and should be read with, the Principles of Good Administration. Providing fair and proportionate remedies is an integral part of good administration and good service, so the same Principles apply. These Principles were also adopted and published by the Public Services Ombudsman for Wales as guidance to Welsh public bodies in March 2008.
We have taken the Principles for Remedy into account in our consideration of Mrs S's complaint.
The specific standards
The National Health Service Act 1977 made it a duty for the NHS to promote services to improve health. For Wales, this Act, as amended,2 placed a duty on the National Assembly for Wales (since 1 March 2007 the duty is on the Welsh Ministers) to provide, to reasonable requirements, services for the diagnosis and treatment of illnesses (in England, the duties under the Act are on the Secretary of State). In Wales, the decisions about whether or not to fund certain specialist treatments (including the in-patient care of patients suffering from eating disorders) are made by HCW, which is an executive agency of the Welsh Assembly Government. In England, most such decisions about individual patients are made by primary care trusts (PCTs).
In 1999 the English Department of Health and the then Welsh Office published a Code of Practice (the Code) on the application of the Mental Health Act 1983.3 Chapter 27 of the Code deals with arrangements for aftercare.
This includes:
'27.1 While the [Mental Health] Act defines after-care requirements in very broad terms, it is clear that a central purpose of all treatment and care is to equip patients to cope with life outside hospital and function there successfully ... the planning of this needs to start when the patient is admitted to hospital ...
'27.10 Those concerned must consider the following issues:
'a) the patient's own wishes and needs, ...
b) the views of any relevant relative, friend or supporter of the patient
c) the need for agreement with authorities and agencies in the area where the patient is to live
d) ...
e) ...
f) the establishing of a care plan, based on proper assessment and clearly identified needs ...'
(Note: as Miss S was not detained under the Mental Health Act 1983, the provisions of the Code do not, strictly speaking, apply; however, it is quoted here to illustrate good practice for all in-patients, whether detained or not.)
The National Institute for Health and Clinical Excellence (NICE) has produced guidance on the treatment of eating disorders.4 This includes:
'1.2.5.1 Most people with anorexia nervosa should be treated on an outpatient basis.
...
'1.2.5.3 Inpatient treatment should be considered for people with anorexia nervosa whose disorder is associated with high or moderate physical risk.
'1.2.5.4 Where inpatient treatment is required ... this should be provided within reasonable travelling distance to enable the involvement of relatives and carers in treatment, ...
'1.2.5.5 People with anorexia nervosa requiring inpatient treatment should be admitted to a setting that can provide the skilled implementation of refeeding with careful physical monitoring ... in combination with psychosocial interventions.'
In 2006 HCW produced a draft commissioning policy for patients with eating disorders who fall within its remit.5 This includes:
'Health Commission Wales have responsibility for Tertiary Eating Disorder Services; this includes Specialist Inpatient and Daypatient Services.
'The priority will be to manage clients in the community, and admission will be the last resort ...
'The patient must have been seen and assessed by the local [Community Mental Health Team] ...
'Referral for inpatient treatment should be considered for those patients where:
the primary diagnosis is that of an eating disorder
outpatient treatment has been exhausted and is recognised as failing to bring about recovery
Body Mass Index is 15-136 and weight loss has been rapid, such that there are concerns about the patient's physical and/or mental health (must be evidenced)as an emergency refeeding presentation BMI should be 13 or below
...'
2 Now superseded by the National Health Service (Wales) Act 2006, which came into force on 1 March 2007; however, the provisions referred to here remain essentially the same.
3 Code of Practice, Mental Health Act 1983, Department of Health and Welsh Office, March 1999.
4 Eating Disorders: core interventions in the treatment and management of anorexia nervosa, bulimia nervosa and related eating disorders, NICE Clinical Guideline 9, January 2004.
5 Tertiary Eating Disorders Commissioning Policy, Health Commission Wales, August 2006.
