Summary: We found fault by a Council, Trust and ICB as they failed to arrange a Section 117 review meeting for Mr Y. The Council, Trust and ICB will now arrange a review meeting and apologise for the delay. They will also make a financial payment to Mr X and Mr Y in recognition of the frustration caused to them.

The complaint

1. Mr X is complaining about the care provided to his son, Mr Y, by Peterborough City Council (the Council), Cambridgeshire and Peterborough NHS Foundation Trust (the Trust) and NHS Cambridgeshire and Peterborough ICB (the ICB).
2. Mr X complains that the Council, Trust and ICB failed to arrange a Section 117 review for Mr Y as recommended by the Ombudsmen in May 2022. Mr X says Mr Y has not had a Section 117 review since 2019 and that this means his ongoing care needs have not been properly and holistically considered.

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The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. If it has, they may suggest a remedy. Our recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
5. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. In making my final decision, I considered information provided by Mr X. I also considered relevant information and documentation from the Council, Trust and ICB. I invited comments on my draft decision statement and considered the responses I received.

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What I found

Relevant legislation and guidance

Mental Health Act 1983

7. Under the Mental Health Act 1983 (the MHA), when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
8. Detention under Section 3 of the MHA is for the purpose of providing treatment. This section empowers doctors to detain a patient for a maximum of six months. A Section 3 can be renewed for another six months.
9. Under Section 117 of the MHA, local authorities and Integrated Care Boards have a duty to provide or arrange free aftercare services for people who have been detained under certain qualifying sections of the MHA. This includes Section 3.
10. Section 117 aftercare services must meet a need arising from, or related to, that person’s mental condition. The aim of these aftercare services is reduce the risk of the person’s mental condition worsening and thereby reduce the risk of further hospital admissions.
11. A person’s eligibility for Section 117 aftercare should be reviewed within six weeks of their discharge from inpatient services. Eligibility should then be reviewed annually thereafter. The person’s allocated care coordinator is responsible for arranging the Section 117 reviews.
12. The Department of Health produces the Mental Health Act 1983: Code of Practice (the Code of Practice) to accompany the MHA. This provides guidance for professionals on how to implement the MHA in practice.
13. In Mr Y’s case, the statutory duty to provide, or arrange, Section 117 aftercare services rests with the Council and ICB. The ICB commissions the Trust to provide these services on its behalf. However, the statutory duty is non-delegable.

Background

14. Mr Y has severe autism, along with learning and communication difficulties. He also has a diagnosis of schizophrenia. Mr X is Mr Y’s main carer.
15. Mr Y was detained under Section 3 of the MHA in December 2016. This meant he became eligible for free Section 117 aftercare services following his discharge in February 2017.
16. Mr X previously complained to the Ombudsmen about Mr Y’s care in 2021. Mr X complained that Mr Y did not have an allocated care coordinator and that the organisations caring for him had failed to arrange regular Section 117 review meetings.
17. In May 2022, the Ombudsmen upheld Mr X’s complaint. We found the Council and Trust failed to arrange regular Section 117 reviews from Mr Y. We also found they failed to allocate a care coordinator to Mr Y. This was contrary to the requirements of the Code of Practice. The Council and Trust agreed to arrange a Section 117 review for Mr Y as soon as possible.
18. A consultant psychiatrist reviewed Mr Y in August 2022. The psychiatrist found Mr Y would potentially benefit from art or music therapy. The psychiatrist also concluded that Mr Y needed a care coordinator.
19. In October 2022, the Council, Trust and ICB met to discuss Mr Y’s Section 117 aftercare review. The meeting heard discussed the fact that Mr Y was unwilling to work with Trust clinicians connected with a learning disability unit in which he had previously been an inpatient.
20. In December 2022, Mr X returned to the Ombudsmen. He said the Council and Trust had still not arranged a Section 117 review meeting for Mr Y. At that stage, we advised Mr Y to approach the Trust to discuss his concerns.
21. The consultant psychiatrist reviewed Mr Y again in March 2023.
22. Mr X approached the Ombudsmen again in April 2023. He told us that the Council and Trust had still not arranged a Section 117 review for Mr Y. At that point, we began a new investigation.

My analysis and findings

23. The evidence I have seen shows the Council and Trust were aware by April 2022 that Mr Y was reluctant to work with Trust clinicians with whom he had previously been associated at the local learning disability centre. At that point, Mr Y did not have a care coordinator as he had been discharged from secondary mental health services in 2017.
24. A meeting in April 2022 agreed the Trust would find a psychiatrist to work with Mr Y who had not been involved with the learning disability service. This was with a view to completing a mental health assessment for Mr Y as part of the Section 117 review process.
25. Shortly after this, the Ombudsmen shared their final decision. This resulted in an agreement that a Section 117 review meeting would be arranged no later than 31 May.
26. Despite this, the mental health assessment did not take place until August. This was over two months after the agreed deadline for the review meeting. The assessment found Mr Y needed a care coordinator, as well as art and music therapy. During the same month, the Council completed a social care assessment.
27. Mr X continued to request a Section 117 review meeting. In September, a social worker told him that the ICB was in the process of arranging one.
28. On 17 October, the Trust, Council and ICB convened a multidisciplinary meeting. The notes of the meeting record that the ICB would arrange a further meeting to discuss Mr Y’s care. I found no evidence to suggest this meeting took place.
29. Although a consultant psychiatrist reviewed Mr Y in March 2023, this does not appear to have led to a Section 117 review meeting. Indeed, I found no evidence of further communication between the Council, Trust and ICB regarding a Section 117 review meeting until June 2023. This was around eight months after the previous meeting.
30. I recognise that Mr Y’s case is complicated by his unwillingness to work with certain Trust clinicians. However, this does not adequately explain such a significant delay.
31. In my view, these delays were compounded as Mr Y does not have an allocated care coordinator. This is the professional who has responsibility under the Code of Practice for ensuring that regular Section 117 review meetings take place.
32. This was contrary to the requirements of the Code of Practice and represented fault by the Trust and Council. The ICB shares responsibility for this fault as it holds the statutory duty to provide or arrange Section 117 aftercare services for Mr Y.
33. To date, Mr Y has still not had a Section 117 review meeting, despite the Ombudsmen’s previous recommendation. This has caused Mr X and Mr Y understandable frustration.

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Agreed actions

34. Within one month of my final decision statement, the Council, Trust and ICB will:

• write to Mr X and Mr Y with a joint letter of apology for the inconvenience and frustration caused to them by their failure to arrange a Section 117 review meeting;
• each pay Mr X £100 (a total of £300). This in recognition of the inconvenience caused to him as he was required to chase repeatedly for a meeting; and
• each pay Mr Y £100 (a total of £300). This is in recognition of the frustration caused to him by the failure to arrange a review meeting.

35. Within two months of my final decision statement, the Council, Trust and ICB will:

• appoint a care coordinator for Mr Y; and
• arrange a Section 117 review meeting for Mr Y.

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Final decision

36. I found fault by the Council, Trust and ICB with regards to their shared failure to arrange a Section 117 review meeting for Mr Y.
37. In my view, the actions the Council, Trust and ICB have agreed to undertake represent a reasonable and proportionate remedy for the injustice caused to Mr X and Mr Y by this fault.
38. I have now completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman