Decision date: 24/03/20
Ms P complained that failings from Lincolnshire County Council (the Council), Lincolnshire Partnership NHS Foundation Trust (the Trust) and Lincolnshire East Clinical Commissioning Group (the CCG) resulted in her not receiving 30 hours of PA support between April 2017 and May 2018.
Ms P was entitled to s117 aftercare having been previously detained under section 3 of the Mental Health Act 1983. She received agency support up until March 2017, when it gave notice. She made a request to her social worker at the time to advertise for a PA but was told to go through an agency and that she needed ‘more specialist support.’ A psychologist working with Ms P told the social worker that their view was that Ms P did have the capacity to employ her own PA.
Ms P complained that she had made several more requests to advertise for her own PA due to bad experience with agencies but they were refused each time. The psychologist told Ms P that she did not know why requests were refused. Later in the report, the social worker had indicated the need for Ms P to have agency support to cover sickness and other absences.
The trust began looking for specialist agencies to support Ms P as a previous care agency had expressed concerns about her behaviour. It failed to make a decision about whether or not she could manage employing a PA.
The Trust was acting under delegated authority by way of agreement under s.75 NHS Act 2006 as often exists with integrated community mental health services. In carrying out its delegated functions, the Trust liaised with the CCG as Ms P’s care was to be funded jointly by health and social care. The decision taken was that notwithstanding the points made by the social worker about absence cover, an agency would ensure that support staff were supported and supervised.
An agency was found to be suitable for Ms P in June but she missed a meeting in July and then said she did not want to use it. Ms P had expressed her unhappiness at the trust sourcing a ‘specialist agency’ to provide her support.
In a meeting with ‘The Bureau’ – a company supporting people in the area to manage Direct Payments and employ PAs – in August, professionals agreed with Ms P that she could use an agency for 15 hours a week and employ a PA for another 15. However, 30 hours were advertised to local agencies
Ms P rejected all applications for the role as her PA in September, October and November. She said she was reluctant to consider interim support which was offered by way of social care assistant until the planned support had been sourced. Ms P did not want to build a relationship with a person who was not in a permanent role and had expressed this much earlier to the psychologist.
In December, Ms P accepted support from an agency and said she would no longer look for a PA. The report is unclear as to how this decision was taken, but outlines Ms P having rejected care agencies and a multitude of personal assistants. However, support had still not begun by February 2018 due to a string of meetings cancelled meetings by Ms P. The agency said it couldn’t proceed with the support.
In February 2018, Ms P made the decision that she wanted to receive 15 hours of support from a PA and 15 from a care agency but then cancelled several care agency appointments.
The Bureau advertised again in April 2018 for 30 hours of support. Ms P employed a PA from May. At this point, Ms P was still being permitted to decide that she wanted to recruit a PA again.
Assessments and information sharing
Ms P complained that social care assessments were carried out without her knowledge or proper involvement and were based on inaccurate, out of date information about her diagnosis. She said that her records from the Trust contained an assessment, which included a mental health diagnosis that she did not have, dated in February 2017. She said the social care assessment incorrectly said she had attacked others, took a knife to a social group for unknown reasons, and included that she had a mental health diagnosis she did not have. The Trust later apologised to her for misrepresenting her mental health diagnosis in documentation.
Ms P’s social worker emailed her psychologist in June to apologise for any upset caused to Ms P. She claimed that she had been told that assessment meetings caused Ms P unnecessary stress and that she had decided not to put her through this and to complete the assessment in order to organise funding.
Then, in August 2017 Ms P met with the social worker who said she would amend the assessment. However, she amended the ‘needs’ section when that had not been discussed at the meeting. The social worker said she did not know how it had happened and that she would correct it, but failed to do so.
Ms P met with her new social worker in January 2018 and complained that the assessment had still not been amended. The same happened again in June and then in July.
The Trust apologised to Ms P in a complaint response and acknowledged that it had shared irrelevant and inaccurate information with others. The new social worker sent out an amended support plan and risk assessment in August.
Ms P complained that she was asked to attend ‘s117 meetings’ in September 2017 but that they were then carried out without her presence after she was told they had been cancelled.
The Trust claimed that Ms P’s psychologist had emailed on the day of the meeting to say that Ms P was unable to attend. The professionals went ahead and met anyway, but carried out the assessment of her needs at a later date.
Community Mental Health Team (CMHT)
Ms P complained that she did not receive adequate support for her needs from the CMHT. She said that she had not been accepted as she fell under the remit of the learning disability team, but that she was told otherwise by the learning disability team as she did not have a learning disability. The eating disorder service she was referred to told her to see an autism team. Ms P’s case was passed around divisions of the Trust many times, including at least two separate crisis teams.
Ms P missed her CMHT assessment in May 2017, although the report does not state why. It wrote to her in June to say if she had not made contact by the end of the month it would discharge her.
There was confusion around whether or not Ms P was on the Care Programme Approach (CPA). In September, the psychologist brought it to the attention of the CCG’s case manager who agreed Ms P should have a care co-ordinator allocated.
Ms P was assessed by the CMHT in late October. It spoke to her social worker in November and said it was unclear what role it could have in her support. It said Ms P’s needs were social care and that it had no record that she was entitled to s117 aftercare. Ms P’s fast-track access to the CMHT had expired and it no longer offered this long term. It said it would request further information from the psychologist to aid its decision but there was no evidence that it had done so. It told the psychologist that Ms P could access the crisis team. However, the crisis team had made it clear that it would not accept a referral for Ms P.
What was found
The Ombudsman found that the Trust was entitled to decide that Ms P’s PA support should not be paid for through Direct Payments but that they had not made the decision in line with the guidance. It should have documented its decision and its rationale for its decision. There was no evidence that the Trust came to a decision until September, when the Bureau had advertised 30 hours of support. This clearly caused Ms P distress and uncertainty. The report does not indicate why Ms P was not offered the option of direct payments.
There was no evidence that the Trust stopped Ms P from hiring her own PA so the Trust was not found at fault for the lack of support between April and May 2017. Furthermore, support was available to Ms P from July through an agency but she chose not to accept it.
The Trust should not have reviewed Ms P’s needs assessment without her knowledge or participation. It also failed to provide her with a copy of the assessment. This amounted to fault and would have caused Ms P an injustice in the form of distress. Had she been involved in the assessment, the incorrect diagnosis would not have been sent out to agencies, which was further fault. It took the Trust far too long (a year) to update the assessment.
The CCG completed a health needs assessment for Ms P in 2014 and failed to do so again until 2019. This assessment was a mechanism for the CCG and social care to determine the split of funding for s.117 aftercare services. The LGSCO found this as fault as the delay would have caused Ms P frustration.
s117 aftercare should be planned through the CPA framework and there was no good reason for this not to have happened. Under Refocusing the Care Programme Approach (Department of Health, 2008), people under CPA should have a comprehensive assessment of their health and social care needs. They should have a care coordinator; have a care plan to show how their needs will be met and have the care plan reviewed by a multi-disciplinary team (MDT).
The Ombudsman was concerned with the number of times that Ms P attempted and failed to receive support from the various sections of the Trust and that she was denied so often because of inaccurate information on her records. The Trust was at fault for failing to ensure that its teams worked properly together in Ms P’s best interests. This was fault which led to more distress.
Lincolnshire County Council, Lincolnshire Partnership NHS Foundation Trust & Lincolnshire East Clinical Commissioning Group will, within 1 month, jointly:
- Write to Ms P to acknowledge and apologise for the injustices caused to her.
- Pay Ms P £250 each in recognition of these
And within 2 months, senior officers from all three organisations will jointly investigate the faults in Ms P’s care and agree on how to prevent similar outcomes in the future.
Points for the public, service users, family and peer supporters, advocates, and councils etc
This complaint centred around the Trust acting in its delegated capacity to manage the individual’s aftercare planning. This included the requirement to start aftercare planning as soon as possible after admission, in accordance with the Mental Capacity Act Code of Practice. Had that been done for Ms P, with a proper and accurate assessment of her needs the many months of attempted and failed recruitment of both personal assistants and care agencies could have been avoided.
A person entitled to s.117 aftercare services does not fall into the exempt categories within Schedule 1 Care and Support (Direct Payments) Regulations 2014 so it is unclear as to what the factors really were that led the Trust and CCG to believe that using an agency to support Ms P for 30 hours a week was the best route. Decisions were made without a proper assessment of her capacity to recruit or work with a PA. The Trust’s reasoning on direct payments when pushed was this: it was in her “best interests to have an agency involved to provide continuity in the event of staff sickness or unavailability…support workers should have access to support and supervision and this is more easily provided by an agency”.
It has to be said that Ms P was reluctant to engage with support and appointments. The LGSCO identified this when the investigator said:
“However, I must take into account that from June/July 2017 support was available to Ms P (through an agency) and she chose not to accept it. There is evidence of numerous attempts by the Trust to secure agency care throughout the period Ms P complains about. This did not go ahead for various reasons. Even once the Bureau advertised for a PA in September 2017, it took months to find an applicant Ms P was happy to employ. That was not within the Trust’s control. There is no way of knowing whether Ms P would have successfully recruited a PA had an advert been placed sooner.”
The report indicates that Ms P’s mother tried to cover the gap in care and support but found this difficult because of her own health. The LGSCO found evidence that the Trust had agreed to offer her a carers’ assessment but there was no evidence that it did.
Ms P complained that an assessment took place which did not involve her. Whilst involving the person sits under the Care Act 2014 for needs assessments, this is only cited as good practice in the Mental Health Act Code of Practice for s.117 assessments.
The information that was drawn into a needs assessment contained incorrect information. Records had identified that there was no evidence of Ms P behaving aggressively for over ten years, yet this risk was still stated in her assessment. Any prospective care provider would have been concerned at the risks involved with supporting someone with such paperwork. The Trust rightly apologised for these failings.
There was evidence of confused responses in relation to Ms P, with different departments finding it difficult to determine who was best placed to support Ms P. She was passed between the CMHT, Learning Disability services and the crisis team. She also received support via the eating disorder service. There was additional confusion as to whether she was supported using the Care Programme Approach.
The Mental Health Act Code of Practice (chapter 34) sets out when the Care Programme Approach should be used:
- 34.6 The CPA should be used in secondary and tertiary mental healthcare to assess, plan, review and coordinate the range of treatment, care and support needs of those people in contact with secondary mental health services who have complex needs. Active involvement of and engagement with the patient are at the heart of the CPA, which focuses on reducing distress and promoting social inclusion and recovery.
The Trust showed a poor understanding of its responsibilities towards Ms P. The Code also requires the Trust to maintain a record of all those entitled to s.117 aftercare, but in the latter part of the report, the CMHT confirmed that it did not have a record of her statutory entitlement despite having received a referral on that basis some three years earlier.
The CMHT also failed to recognise this status as it decided it could not work with her as she had ‘social care needs’. This meant that Ms P may not have received the support she should have done, based on the CMHT judgment that she had no ‘health’ needs, clearly oblivious of her s.117 entitlement.
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The full Local Government Ombudsman report on the actions of Lincolnshire Council can be found here: