Summary: Mr X complained he was incorrectly discharged from Section 117 aftercare. We found the Trust, the Council and the ICB did not follow the relevant guidance when discharging Mr X from Section 117 aftercare. This caused uncertainty to Mr X over whether he should have received additional mental health support in the period that followed, and whether this may have prevented his health from deteriorating. The Trust, Council and ICB agreed to provide a remedy to Mr X by reassessing his Section 117 needs, and making service improvements.

The complaint

1. Mr X complains that in 2017, he was incorrectly discharged from Section 117 aftercare, and that this happened without his knowledge. Mr X says he only found out about this in 2022.
2. Mr X complains that being discharged from Section 117 aftercare meant he did not get the care he should have had, and his mental health deteriorated. Mr X says this has had a significant and ongoing impact on his life.
3. As an outcome of bringing his complaint to the Ombudsmen, Mr X would like his Section 117 aftercare to be reinstated so he can get the mental health support he needs. Mr X says support under Section 117 is very important to his future and general wellbeing.

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The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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).
6. 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.
7. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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

8. I considered information from Mr X, the Trust, the Council and the ICB.
9. Mr X, the Trust, the Council and the ICB had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

The law and guidance relevant to this complaint

Mental Health Act 1983

10. Section 3 of the Mental Health Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.
11. Before the person is discharged, a social care assessment should take place to assess if they have any social care needs that should be met. People who are discharged from section 3 will not have to pay for any aftercare they will need. This is known as Section 117 aftercare.

Section 117 aftercare

12. Anyone who may have a need for community care services is entitled to a social care assessment when they are discharged from hospital to establish what services they might need. Section 117 of the Mental Health Act imposes a duty on health and social services to meet the health/social care needs arising from or related to the person’s mental disorder for patients who have been detained under specific sections of the Mental Health Act (e.g. Section 3). Aftercare services provided in relation to the person’s mental disorder under Section 117 cannot be charged for.
13. The “Mental Health Act 1983: Code of Practice” (the Code) is statutory guidance. This means that councils and ICBs must follow it, unless there are good reasons not to.
14. I will refer to the Trust within this draft decision, as the Trust is the lead organisation in providing integrated mental health services in the area, and responded to Mr X’s complaint. However, the Council and ICB have a legal duty to provide Section 117 aftercare services, and neither councils nor ICBs can delegate accountability for this. Therefore, all three organisations are responsible for the Section 117 aftercare provided.
15. When considering complaints we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.

What happened

16. After leaving hospital, Mr X was eligible for Section 117 aftercare. He had a Section 117 aftercare plan in place. This included a referral for cognitive behavioural therapy (CBT), medication, and support from a care coordinator. Mr X was supported by the integrated mental health team, made up of health and social care professionals. This team was managed by the Trust.
17. The records provided indicate that in 2017, Mr X telephoned the Trust, and declined further support from the mental health team.
18. Shortly after this telephone call, Mr X’s care was discussed at a multidisciplinary team (MDT) meeting. The MDT decided Mr X should be discharged from Section 117 aftercare. Mr X’s medication continued to be prescribed by his GP.
19. Mr X explained he only found out he had been discharged from Section 117 aftercare around five years later. He said in the meantime, his mental health had deteriorated, including further hospital admissions. Mr X said he had repeatedly asked for mental health support during this time, but said he had not received it.
20. After Mr X found out he had been discharged from Section 117, he complained to the Trust. The Trust responded to Mr X’s complaint, acknowledging it had not written to Mr X to confirm he had been discharged from Section 117 aftercare. The Trust accepted Mr X “should have been fully involved and informed”.
21. The Trust apologised to Mr X for not communicating the discharge decision to him. However, the Trust said Section 117 aftercare “may be withdrawn if the health organisation believe you no longer need it”.
22. Mr X was dissatisfied with the Trust’s response and complained to the Ombudsmen.

Analysis

23. The MHA Code of Practice says Councils and ICBs should continue to provide Section 117 aftercare until both organisations are satisfied the person no longer needs it. Councils and ICBs should involve the person, and their carer or advocate if they have one, in any decisions they make about ending Section 117 aftercare.
24. The Code of Practice also says Councils and ICBs may reinstate aftercare services if, for example, a patient’s mental health begins to worsen soon after services are withdrawn. In his complaint, Mr X explained his mental health had deteriorated shortly after he was discharged from Section 117. Mr X said he repeatedly asked for support, but said this was not provided.
25. The Code of Practice also states any decision to decline services should be fully informed. The local area policy for Section 117 says: “a patient’s expressed wish to be discharged from this section has no legal effect if they continue to have a need for aftercare services.” The notes of Mr X’s phone call to the mental health team say he declined further support from the team. In his complaint, Mr X said he had no knowledge of saying this. He said he was unwell at that time, and that it should have been clear that he needed the involvement of the service. The note of the phone call does not say that Mr X specifically asked for Section 117 to be stopped, and nor does it say that any explanation was given to him about what stopping Section 117 would involve.
26. Mr X also explained he received support from his parents. This was noted in his care plan, as was his consent for them to be contacted about his care. Therefore, as well as involving Mr X in the discharge decision, it would have been in line with the Code of Practice for the Trust to have also involved Mr X’s parents.
27. Mr X said that if he and his parents had been invited to the MDT meeting to discuss stopping Section 117, they would have attended and strongly advised against the decision. Mr X said his parents would have been able to explain how much he needed the care and support, as he may not have been able to express this himself.
28. Mr X said had he received the care and support he needed under Section 117, rather than being discharged without his knowledge, his mental health may not have deteriorated, and his hospital admissions could have been prevented.
29. The Council said although Mr X was eligible for Section 117, he was not receiving any health or social care services under Section 117 at the time. However, as noted above there is a copy of a Section 117 aftercare plan which says Mr X was to be referred for CBT, prescribed medication, and receive support from a care coordinator. The records say Mr X’s GP prescribed his medication, but he would be discharged from mental health services under Section 117.
30. Therefore there was fault by the Trust, Council and ICB in not involving Mr X and his parents in the decision to discharge him from Section 117, and not informing Mr X that he had been discharged. This caused an injustice to Mr X, as he missed an opportunity to raise any concerns or ask for aftercare to be continued.
31. The information available indicates that discharging Mr X from Section 117 meant he did not then access the mental health support he had been receiving. Discharging Mr X without fully involving him in the decision caused uncertainty to Mr X about whether he could have accessed these additional services during this time.
32. On balance of probabilities we are not able to say whether Mr X would have been readmitted to hospital had he not been discharged from Section 117. However, as noted above, the aim of Section 117 aftercare is to reduce the risk of a person’s mental health condition worsening and therefore reduce the risk of the person needing a further hospital admission. Therefore, discharging Mr X from Section 117 without communicating this to him, caused uncertainty to Mr X about whether his hospital admissions could have been prevented had he not been discharged.
33. As noted above, in its response to Mr X’s complaint, the Trust acknowledged it had not contacted him about stopping Section 117. The Trust apologised to Mr X for this. This was appropriate but did not recognise the uncertainty caused to Mr X by ending Section 117 without following the proper process. The Trust, Council and ICB have agreed to take further action to remedy the injustice to Mr X, as set out below.
34. The records indicate that the Trust notified the Council and ICB about Mr X’s discharge from Section 117. However, the complaint response says Section 117 can be withdrawn if the health organisation considers it reasonable. This is not in line with Section 117(2) of the Mental Health Act, which says the Council and ICB have a joint duty to provide Section 117 aftercare until they are satisfied the person no longer needs it. In line with the Code of Practice and local area policy, the decision to discharge a person from Section 117 should be a joint decision by the Council and ICB. Therefore, I recommended the organisations ensure staff are aware of and trained on the Section 117 discharge process, below.

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Agreed actions

35. I recommended that within a month of the final decision on this complaint, the Council, Trust and ICB:

• Write to Mr X to apologise to him for the impact of not following the relevant process when discharging him from Section 117 aftercare.
• Carry out an urgent review of Mr X’s Section 117 aftercare needs, ensuring this is done in line with Chapter 33 of the Mental Health Act Code of Practice, involving appropriate consultation with and involvement of Mr X, carers or advocates, the Trust, Council and ICB and other relevant professionals.
• Update the relevant Council, Trust and ICB records with the outcome of the review;
• If, on review, the decision is that Mr X remains in need of Section 117 aftercare, to ensure that is planned, arranged and delivered in line with chapters 33 and 34 of the Mental Health Act Code of Practice. If the organisations consider chapter 34 does not apply, they should record the reasons why.
• If, on review, the Council and ICB’s view is that Mr X should be discharged from Section 117 aftercare, to do so in accordance with chapter 33 of the Mental Health Act Code of Practice, and ensure Mr X, and carers or advocates are fully involved in the discharge decision.

36. I recommended that within three months of the final decision on this complaint, the Council, Trust and ICB:

• Ensure staff are trained on how to apply the current Section 117 aftercare policy when discharging people from Section 117 aftercare, including fully involving people and their carers or advocates in the decision, and ensuring the involvement of the Council and ICB, to help prevent recurrence of the fault identified in this case.

37. The Trust, Council and ICB accepted my recommendations.
38. The Trust, Council and ICB should provide us with evidence they have complied with the above actions.

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Final decision

39. I found fault by the Trust, the Council and the ICB in not following the relevant guidance when discharging Mr X from Section 117 aftercare, leading to uncertainty for Mr X. The actions the Trust, Council and ICB have agreed to take remedy the injustice to Mr X. I have completed my investigation on this basis.

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Investigator's decision on behalf of the Ombudsman