Summary: Mr F complained about long delays in arranging to discharge his daughter Miss D from hospital to a community placement, after she was detained under the Mental Health Act 1983. We did not find fault in most of the Council and Integrated Care Board’s work to arrange Miss D’s discharge. We found fault by the Council in not sharing information about possible fire risk with a potential landlord. This fault is likely to have caused avoidable delay to Miss D’s discharge plans, which has caused her and her father frustration and distress. The Council has agreed to provide Miss D and Mr F with a financial remedy, and to take action to prevent similar problems happening in future.

The complaint

1. Mr F complains about delays in arrangements to discharge his daughter, Miss D, from hospital after she was detained under the Mental Health Act in August 2021. He says there have been unnecessary and unreasonable delays by Hampshire County Council (the Council) and NHS Hampshire and Isle of Wight Integrated Care Board (the ICB), both individually and in their joint working arrangements, in handling his daughter’s discharge plans.
2. Mr F also complains the Council and ICB failed to share information with a potential accommodation provider about the possible fire risk posed by Miss D. He says this further delayed her discharge and led to unnecessary distress and avoidable costs.
3. Mr F says the delays in his daughter’s discharge from hospital have been harmful to her mental health as the hospital inpatient environment is not suited to her needs. He says he has also experienced significant distress.
4. Mr F wants the organisations to arrange Miss D’s discharge from hospital without further delays. He wants the organisations to acknowledge and apologise for their failings and for the impact of the delayed discharge on him and his daughter. He wants the organisations to improve their processes for handling complex discharges, to avoid delays and poor co-ordination between services. He also considers a financial payment might be appropriate to recognise the impact on him and his daughter.

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What I have and have not investigated

5. I have investigated events between August 2021 and the end of February 2023. Events leading up to Miss D’s admission to hospital and detention under s2 of the Mental Health Act 1983 in August 2021 have been the subject of a previous Ombudsman investigation.

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The Ombudsmen’s role and powers

6. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA)
7. 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). 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.
8. The Ombudsmen cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in how the organisation reached the decision. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
9. When investigating complaints, if there is a conflict of evidence, the Ombudsmen may make findings based on the balance of probabilities. This means that during an investigation, we will weigh up the available evidence and base our findings on what we think was more likely to have happened.
10. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
11. 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

12. I read the documents Mr F submitted and discussed the complaint with him. I also considered the Council and ICB’s comments about the complaint, the supporting documents they provided, and relevant law and guidance.
13. Mr F and the organisations had an opportunity to comment on my draft decision. I considered all comments received before making a final decision.

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What I found

Relevant legislation and guidance

Deprivation of Liberty Safeguards (DoLS)

14. The Deprivation of Liberty Safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.

Court of Protection

15. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
16. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection can:

• decide whether a person has capacity to make a particular decision for themselves;
• make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions.

Mental Capacity Act

17. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Best interest decision making

18. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
19. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Mental Health Act 1983 - detention in hospital

20. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
21. A person can be detained in hospital under section 2 of the Act for assessment and for treatment after the assessment. A person can be kept in hospital under section 2 for a maximum of 28 days. A person can be detained under section 3 of the Act for treatment and kept in hospital for up to six months. The detention under section 3 can be renewed for another six months.

Section 117 aftercare

22. Section 117 of the Mental Health Act imposes a duty on councils and NHS Integrated Care Boards (ICB’s) to provide free aftercare services to patients who have been detained under certain sections of the Mental Health Act. These free aftercare services are limited to those arising from or related to the mental disorder, to reduce the risk of their mental condition worsening, and the need for another hospital admission again for their mental disorder.

What happened

23. This section provides an outline of background events leading to Mr F’s complaint. It is not intended to be a comprehensive account of everything that happened.
24. Miss D was aged between 18 and 20 years old during the period of care Mr F complains about. Miss D has several neurodevelopmental and mental health conditions and a moderate learning disability. Since early secondary school age Miss D has lived in accommodation arranged by the Council under section 20 of the Children Act 1989 due to her challenging behaviour. She has also been an informal and detained psychiatric in-patient.
25. In August 2021 Miss D was living in a supported living placement and had a 24/7 care and support package from a specialist learning disability care provider. In late August she was admitted to hospital under s2 of the Mental Health Act 1983 due to a mental health crisis. She was then detained under s3 of the Mental Health Act for around seven months. When the s3 detention ended Miss D remained in hospital under Deprivation of Liberty Safeguards (DoLS), as the Council and ICB were still trying to find a suitable community placement for her to be discharged to. When Mr F complained to us (June 2022 and then February 2023), Miss D remained in hospital under DoLS.
26. During the period complained about, the Court of Protection has been considering Miss D’s capacity to make specific decisions. It has also been considering her best interests, Deprivation of Liberty Safeguards and arrangements for her care and support in the community. Miss D has been assessed as lacking capacity to make decisions about her care, support and accommodation arrangements. This means the Court of Protection has to authorise the framework in which her care and support needs will be met after discharge from hospital. The law says we cannot investigate a complaint about what happens in court. However, some issues Mr F complains about fall outside what the Court of Protection is deciding. These include his complaints about inadequate care co-ordination by the Council and ICB, about avoidable delays in discharge planning, and about failing to share information about potential fire risk.
27. From the start of Miss D’s time in hospital in August 2021, regular discussions took place about discharge planning. In early September 2021 the Council and ICB agreed that Miss D could not be discharged back to her previous community placement with her existing care package, as the care provider could not meet her needs. The Council and ICB then looked at various options for Miss D to be discharged from hospital. This included looking at a short-term community placement while a more appropriate long-term option was found, or being discharged straight to a long-term placement.
28. The Council and ICB contacted various placements and care providers about Miss D, including the landlord of the property she lived in when she went into hospital in August 2021. Miss D had rented the house from a charity housing organisation (which I will refer to as Landlord C), and had a tenancy agreement with them.
29. In December 2021 the Council and ICB identified a suitable care provider for Miss D, and the care provider started doing in-reach work with Miss D in hospital.
30. In April 2022 Landlord C confirmed it had a suitable property for Miss D and in June, it provided her with tenancy details for the new property. The Council and ICB agreed funding for Miss D’s care package following discharge. Over summer 2022 the Council and ICB continued with work on discharge arrangements. This included updating Miss D’s care plans, liaising with the Court of Protection, work relating to assessments of Miss D’s best interests and her capacity, and work to ensure the care provider was appropriately trained ready for the community placement to start.
31. At a discharge planning meeting in September, Landlord C asked to see Miss D’s care plans so it could support the proposed tenancy and agree a moving in date. The Council said the care plans would need to be agreed and sent to the Court of Protection before they could be shared with Landlord C.
32. In early November 2022 Landlord C said it could not go ahead with Miss D’s planned tenancy because it had become aware of previous incidents where Miss D had started fires. Landlord C said it did not have the insurance to cover anyone who had a historic incident involving fire, so it had to service notice on the tenancy.
33. The Council and ICB then started a new placement search, looking at interim and long-term options. In March 2023 the Council and ICB jointly agreed to pursue a long-term accommodation option for Miss D. They also agreed to work with a care provider that might enable Miss D to be discharged from hospital on an interim basis. There is no firm discharge date set at the moment. Miss D is still in hospital and moved to the Psychiatric Intensive Care Unit in April 2023 as staff could not manage her needs on the main ward.

Complaints

34. Mr F complained to the Council and ICB about delays in Miss D’s discharge arrangements, about not being adequately involved in discharge planning discussions, and about a lack of co-ordination or planning.
35. The organisations said the care plans needed to keep Miss D safe and well in the community were very complex, and this was the main reason the discharge arrangements were taking a long time. They said some complexities meant several agencies and experts had to be involved in looking at Miss D’s capacity, best interests, and care planning. They said they had been holding regular and frequent discharge planning meetings, usually weekly or fortnightly, and regular CPA meetings. They also said that once appropriate care plans have been produced, they have to give them to the Court of Protection for authorisation, which has added to the timeframes.
36. The organisations said they had worked together effectively and collaboratively, in partnership with Miss D and her family, and the discharge timeframes were reasonable taking into account the complexity of the issues.
37. Mr F also complained about the organisations’ failure to provide Landlord C with information about the possible fire risk posed by Miss D. He said this had further delayed her discharge and caused unnecessary distress and avoidable costs.
38. The Council acknowledged that work should have been done to address specific concerns and risks about fire setting, including liaising with the housing landlord. The Council apologised that this had contributed to the delay in Miss D being discharged. It said it was taking remedial action as a result of the learning from this case.

Analysis

Delayed discharge

39. The case records show the organisations started taking actions about discharge planning as soon as Miss D was admitted to hospital in August 2021. The staff involved with Miss D acknowledged that an acute ward would not be therapeutically beneficial for her, but they also recognised the need for a well-planned transition back into the community. There is evidence of frequent contact and liaison between the Council, ICB and the acute Trust Community Learning Disability Team over the period we are investigating (August 2021 to February 2023). There is also evidence of regular updates to Mr F and his involvement in meetings and discussions about discharge plans.
40. I reviewed the case records in detail to see whether there were any periods of significant or avoidable delay in progressing Miss D’s discharge plans. I did not see any evidence of this. It is clear from the case records that the care planning requirements here are very complex, involving many different individuals and organisations. The organisations told us they have been jointly coordinating discharge plans. They said they have been sharing tasks and responsibilities between them to prevent actions being delayed and to ensure all avenues are explored to support Miss D’s discharge from hospital. The case records show regular and frequent discharge planning meetings, updates to support plans, liaison with care providers and potential placements, and interagency working.
41. The organisations told us of fifteen different organisations or teams involved in Miss D’s discharge planning arrangements. These include the Council’s intermediate care team, the ICB’s s117 team, the acute mental health Trust, Miss D’s care co‑ordinator, different care providers, the Intensive Support Team, Miss D’s advocate and her Relevant Person’s Representative in matters about the DoLS. They said the lead individuals have worked closely with ward staff and other external providers to progress any discharge options as quickly as possible while ensuring any discharge proposals have longevity, are safe and would mean a successful discharge. The evidence I have seen in the case records supports this.
42. It is understandable that Mr F and Miss D are frustrated and distressed at how long it is taking to arrange Miss D’s discharge. However, I have not seen any evidence of fault or avoidable delay by the organisations in terms of their work to arrange Miss D’s safe discharge from hospital to a community placement, other than in relation to fire risk, which I will address separately.

Care co-ordination

43. Mr F complained there had been no care co-ordinator leading on and overseeing Miss D’s discharge arrangements until April 2023. He said if Miss D was under the Community Mental Health Team (CMHT) she would have had a care coordinator but as she is under the Community Learning Disability Team (CLDT) there isn’t an equivalent. Mr F said he felt the lack of a care co-ordinator meant discharge plans had drifted and months had been wasted due to avoidable delays. He said no-one was thinking about next steps and there was no overall discharge plan or programme.
44. The case records show that in May 2022, the Council, ICB and acute Trust discussed the need for clarity about the respective roles in Miss D’s discharge planning. They agreed there needed to be lead individuals taking responsibility for overseeing various actions including care planning, transition work, legal issues such as community DoLS, discharge planning meetings, and organising funding.
45. According to the evidence from the organisations, Miss D had a care co‑ordinator (a doctor) at the acute Trust, as part of the Care Programme Approach. The care co-ordinator has led and co-ordinated many of the discharge planning meetings, and a key worker from the Council and various members of the multi-disciplinary team have also attended. In addition, there are several identified lead professionals / teams in the documentation. The Council’s Intermediate Care Team has led on Mental Capacity Assessment work and DoLS, and the ICB has been heavily involved in discharge planning, care planning and reviews. The acute Trust’s Intensive Support Team has been involved in training staff working with Miss D, and the Community Learning Disability Team has been involved in some of the best interests work.
46. As previously stated, clearly Miss D’s discharge planning is a very complex matter involving various professionals, teams and organisations. In terms of Mr F’s specific complaint about inadequate care co-ordination arrangements leading to delays, I have not seen anything that amounts to fault in care co-ordination. The evidence I have seen shows key individuals and teams working together to deliver support planning and to progress these complex discharge arrangements.

Information sharing about fire risk

47. Mr F said the Council and ICB failed to share information with a potential accommodation provider about the possible fire risk posed by Miss D. He said this further delayed her discharge and led to unnecessary distress and avoidable costs.
48. The Council acknowledged fault and said work should have been done to address concerns and risks about fire setting, including liaising with the housing landlord. The Council apologised that this had contributed to the delay in Miss D being discharged and said it would learn from these events and take action to improve. The ICB said it was not involved in the process of completing the housing application to Landlord C, this was done by the Council and care provider. The ICB said it was not initially aware of the fire risk, and as soon as it was aware it notified the landlord.
49. As the Council has acknowledged fault in this part of Miss D’s discharge arrangements, I have focused my consideration on the likely impact of this, and on what action might be appropriate in response. I will look at the actions first.
50. The Council said it had taken several actions that would address this issue and hopefully prevent similar circumstances occurring. It has:
• introduced a new risk assessment tool and risk escalation process, to ensure escalated risks are recognised and responded to appropriately
• developed new practitioner guidance and training, including advice to support practitioners in responding to information received through incident reports or other sources
• reviewed and updated practice guidance about fire risk, including the responsibility to notify landlords about risks or behaviours relating to fire
• considered including questions about incident reports and fire risks within its Quality Assurance Framework (continuous improvement tool) for personal assessments during its next scheduled review
• worked with the ICB to agree a s117 Aftercare Oversight Group, looking at the quality and safety of proposed care and support and its appropriateness to meeting a person’s needs.
51. I have recommended further action by the Council, in the next section.
52. I have looked at the likely impact of the Council’s failure to share information about fire risk with Landlord C. Given the complexities of the discharge planning in Miss D’s case, I cannot say when Miss D is likely to have been discharged even if the Council had shared information about fire risk with Landlord C when it should have. There are too many uncertainties and contingencies involved. However, I consider it likely that Miss D’s discharge plans have been avoidably delayed because of this, which has caused her and Mr F further distress and uncertainty.
53. The case records show that in April 2022 Landlord C confirmed it had a suitable property for Miss D, and in June it provided her with tenancy details. In September 2022 Landlord C asked to see Miss D’s care plans. In November it said it could not go ahead with the tenancy because of the fire risk issues it had become aware of. As a result, the Council and ICB had to start looking for different accommodation for Miss D again.
54. The Council and ICB are currently looking at short-term and longer-term discharge placements, and there is no firm discharge date set at the moment. Miss D is still in hospital, and moved to the Psychiatric Intensive Care Unit in April 2023 as staff could not manage her needs on the main ward.
55. Mr F said he felt he and his daughter should be financially compensated to recognise the harm and distress caused to them by the delays in discharge. He also said his daughter had incurred costs in installing broadband and moving her possessions into the property with Landlord C, as the tenancy had been expected to go ahead. He said Miss D’s income has also been affected as she is not eligible to receive her Personal Independence Payment while in hospital. I have considered these matters below.

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Agreed action

56. The Council failed to share information with a potential accommodation provider about possible fire risk posed by Miss D. It is likely that this caused some avoidable delay to arrangements for Miss D’s discharge from hospital to a community placement. This also caused avoidable distress and frustration to Miss D and her father Mr F, and Miss D incurred some unnecessary costs.
57. To address the impact of these failings, the Council has agreed to take the following action within one month of our final decision:
1. pay Miss D £500, as a symbolic payment to recognise her avoidable distress and frustration at the additional delay to her discharge plans
2. pay Mr F £350, as a symbolic payment to recognise his avoidable distress and frustration at the additional delay to his daughter’s discharge plans
3. find out how much Miss D spent on the potential tenancy with Landlord C, and reimburse her for those avoidable expenses
4. pay Miss D a sum equivalent to six months of her Personal Independence Payment, to recognise the additional delay to her discharge plans due to the Council’s fault about fire risk
58. Within three months of our final decision, the Council will:
1. provide a detailed update to Mr F and to us about the actions it has taken about incidents and fire risks, as outlined in paragraph 50, and how it has assured itself these actions are effective
2. provide supporting evidence of the actions taken
59. The Council should provide us with evidence it has complied with the above recommendations.

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Final decision

60. The Council acted with fault in not sharing information about possible fire risk with a potential landlord. This fault is likely to have caused some avoidable delay to Miss D’s discharge from hospital, which has caused her and her father frustration and distress. I have upheld this part of Mr F’s complaint.
61. Other than the specific issue of fire risk, I have not found fault by the Council or ICB in their plans to arrange Miss D’s discharge from hospital.
62. The Council has agreed to provide Miss D and Mr F with a financial remedy and to take action to prevent similar problems happening in future. I am satisfied these actions represent a suitable and proportionate remedy for Miss D and Mr F, and I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman