Summary: Mr X complained to the Ombudsmen about the actions of Cumberland Council and Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust, relating to his mental health care. We did not uphold Mr X’s complaint as we found no fault in the organisations’ actions.

The complaint

1. Mr X complained about the actions of Cumberland Council (the Council) and Cumbria, Northumberland, Tyne & Wear NHS Foundation Trust (the Trust) relating to his mental health care. Mr X said that, after he had been experiencing several days of mental health crisis in September 2022:
• a member of the Trust’s mental health street triage team (STT) visited him at home and agreed he was no longer in crisis;
• the Trust’s STT failed to update Mr X’s electronic records for that day;
• on the same day, a different mental health team within the Trust asked the Council to apply for a court warrant. The warrant authorised the Police to enter his home, accompanied by a Council approved mental health professional (AMHP) and a doctor, and take him for assessment under the Mental Health Act 1983;
• the Police and AMHP arrived at his home in the early evening of the same day but did not apply the warrant properly because they did not have a doctor with them and took him for assessment from a public place rather than his home;
• Mr X waited for about an hour for an ambulance to take him to a clinic for assessment. When doctors eventually interviewed him at the clinic, it only took them a few minutes to agree with him that he did not need to be detained or stay in hospital; and
• he then had to wait for a taxi to take him home. He did not get home until the early hours of the next morning.
2. Mr X considers the Council would not have had grounds to apply for the warrant and that he would not have been visited by the Police and AMHP, if the Trust had updated his records promptly with the result of the street triage team’s visit. He also considers he may not have had to go to the clinic for assessment, had a doctor accompanied the AMHP on the visit to his home. Mr X says what happened caused him significant distress and inconvenience during an already difficult period in his life.
3. Mr X would like the Trust and Council to acknowledge they acted with fault and put service improvements in place to prevent similar problems affecting him or others in the future.

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The Ombudsmen’s role and powers

4. The Ombudsmen 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. 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).
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. 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 the way the decision was reached. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. 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. 
9. 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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What I have and have not investigated

10. The Ombudsmen cannot investigate the actions of the Police. The law also says the Local Government and Social Care Ombudsman (LGSCO) 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. I have therefore investigated:
• the actions of the Trust;
• the actions of the Council leading up to the decision to apply for a court warrant; and
• the Council’s actions after the court issued the warrant (unless they were permitted by the court warrant).
12. I have not investigated:
• the Council’s application to the court and the warrant itself;
• the actions of the Police; and
• the actions of the Council that were permitted by the court warrant.

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How I considered this complaint

13. I have considered:
• information provided by the complainant;
• the Council’s and Trust’s responses to my enquiries, including copies of documentary records; and
• relevant law, guidance and local policies, as referenced below.
14. Mr X, the Council and the Trust have had an opportunity to comment on a draft version of this decision. I considered their comments and additional evidence provided by Mr X before making a final decision.

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What I found

Relevant law, national guidance and local policy

15. Section 135 of the Mental Health Act 1983 (MHA) is relevant to this complaint. Under section 135(1) of the MHA, following an application by an AMHP, a magistrate’s court can issue a warrant authorising the Police to:
• enter private premises, if need by force; and
• if considered appropriate, remove the person “to a place of safety” for an assessment under the MHA, or making other arrangements for the person’s care or treatment.
16. Section 135(4) says the Police officer(s) using the warrant must be accompanied by an AMHP and a doctor.
17. The Government has issued statutory guidance called “Code of practice: Mental Health Act 1983” (MHA Code). Councils and NHS organisations must follow this guidance, unless they have good reason not to. Chapter 16 of the MHA Code contains guidance on section 135 of the MHA.
18. The Council and Trust have confirmed that in their local area, it is the Council’s responsibility to arrange for the presence of a doctor to visit a person when the Police use a section 135(1) warrant.
19. The Nursing and Midwifery Council (NMC) is the independent regulator for nurses and nursing associates in England. It publishes professional standards of practice called “The Code” (NMC Code). The following parts of the NMC Code are relevant to this complaint:
• 8.2 – maintain effective communication with colleagues;
• 8.3 – keep colleagues informed when you are sharing the care of individuals with other health and care professionals; and
• 10.1 – complete all records at the time or as soon as possible after an event.

What happened

20. In September 2022, Mr X experienced a mental health crisis. He says he tried to get help from the Trust and that members of the public concerned for his welfare called the Police about 50 times in one week.
21. Mr X says:
• the Trust’s STT visited him at home one day near the end of September, following a call to the police made by the Trust’s community mental health team (CMHT);
• the STT nurse who saw him agreed with him that he was no longer in crisis, and could stay at home to rest;
• the STT nurse did not record the visit and its result on Mr X’s electronic health record until the next day;
• this meant another team from the same Trust was unaware of the visit and the decision that Mr X was well enough to stay at home;
• later the same day, the other Trust team contacted the Council because of the concerns raised about Mr X’s mental health over the past few days. The Trust asked the Council to apply for a court warrant under section 135(1) of the Mental Health Act 1983, without being aware of the STT’s view that Mr X was well enough to stay at home; and
• the Council obtained the warrant based on this incomplete information. Mr X does not believe the warrant was valid.
22. The warrant gave the Police powers to enter Mr X’s home, accompanied by an AMHP and doctor. It also authorised the Police to remove Mr X to a “place of safety” (the Clinic, a part of the Trust) for assessment under the Mental Health Act 1983 (MHA).
23. The Council and Trust have provided records of what happened on the day in question. This includes information from the Police about what officers’ body worn cameras recorded during their visit to Mr X’s home. Mr X has also shared some of the records he has had from the Police regarding what happened earlier in the day. The following is a summary of what happened on that day, based on my reading of all these records.
• The Trust contacted the Police at 16:16 because of concerns Mr X was taking an overdose. The Police involved the Trust’s STT. Initially, Mr X did not engage with the police and they called an ambulance. This changed (according to Police logs) when at some point between 16:54 and 17:30, Mr X stated he had not taken an overdose, the ambulance was cancelled, and he spoke with STT staff.
• Meanwhile, the Trust’s CMHT contacted the Council at 16:39 asking it to organise an assessment under the MHA. In summary, the Trust told the Council that it was concerned about Mr X’s presentation and unwillingness to engage with professionals, so considered an MHA assessment was appropriate. The CMHT told the Council Mr X was aware of the MHA assessment request and that the STT last saw Mr X three days earlier but Mr X would not engage with them. The CMHT made a written note of this contact with the Council at 17:00.
• The STT’s visit finished at 17:38. The STT concluded there “was not a mental illness of a nature or degree that warranted the use of the MHA…We knew that a MHA had been arranged in the foreseeable future”. The Trust says the STT went on to make two further urgent visits to other patients after seeing Mr X that afternoon so could not record the visit on Mr X’s health record immediately.
• The Council emailed the court with an application for a section 135(1) warrant at 18:06. The court emailed an electronic section 135(1) warrant to the Council 40 minutes later.
• The AMHP, a doctor (Doctor 1) and the Police visited Mr X’s home at 20:30. Most of the interaction between Mr X, professionals and Police happened outside his home. At one point the Police accompanied Mr X into his home while he went to get some belongings, before they all came back outside. Mr X told the AMHP about the STT’s visit. Nevertheless, the AMHP wanted Mr X to go to the Clinic for an assessment under the MHA. Mr X eventually agreed to this. Doctor 1 left while the AMHP and Police officers waited outside with Mr X for an ambulance, which took about an hour to arrive. An ambulance transported Mr X to the Clinic, where he arrived at 22:05.
• At 20:39, the STT entered a note of its visit on the Trust’s electronic health record for Mr X. This was while the AMHP was visiting Mr X, so the AMHP was unaware of this entry.
• Doctor 1 and another doctor, Doctor 2, were present at the Clinic, as was the AMHP. At first, Mr X was reluctant to speak to the AMHP, so the staff at the Clinic looked into finding a different AMHP. However, according to the records Mr X eventually agreed to the assessment going ahead with the current AMHP present. Mr X disagrees with this and says the AMHP was not present when the two doctors spoke with him. After speaking with Mr X, the doctors and AMHP agreed that he was “suffering from a mental disorder” but it did “not warrant hospital admission at this time and no medical recommendations were made by the assessing” doctors. The assessment ended at 23:10. The Clinic organised a taxi to take Mr X home.

Was there fault causing injustice?

24. The Trust’s CMHT was aware the STT had tried to engage with Mr X a few days earlier. Based on the result of that visit and concerns it had about Mr X in the afternoon in question, it contacted the Council’s AMHP to ask for a section 135 warrant which would allow Mr X to be brought to the Clinic for an assessment even if he did not want to go.
25. On balance of probability, it is likely that the CMHT would have been aware the STT would try to see Mr X if it called the Police about an overdose concern that afternoon. However, at the time the Trust asked the Council to get the section 135 warrant, the STT’s involvement with Mr X had not finished. Based on previous events and the circumstances of that day, it was reasonable for the Trust not to assume that Mr X would engage with the STT that afternoon. It was also reasonable for it to seek a more certain method to assess whether he needed to be detained in hospital for his own safety. The CMHT made the request having properly considered information available to it at the time. I have found no fault in the way the Trust decided to make the request.
26. The CMHT explained to the Council why in CMHT’s professional judgement the request was appropriate. The Council considered this explanation, and a risk assessment provided by the Trust’s crisis team. Having done so, it decided it would be appropriate to apply for a section 135 warrant. I have found no fault in the way the Council decided to act on the Trust’s request.
27. A court of law considered the Council’s application and decided to issue a section 135(1) warrant. We cannot therefore investigate the content of the application or the court’s decision to issue the warrant. Once the court issued the warrant, the AMHP was entitled to act in accordance with it.
28. The STT’s visit to Mr X finished before the Council emailed the court with its application for a warrant. So it is understandable that Mr X was surprised and upset with getting a visit from more professionals and the Police shortly after the STT had seen him and told him there was no need to use the MHA. I have therefore considered carefully whether the Trust’s STT should have noted its visit in Mr X’s medical record sooner and/or proactively told CMHT and the Council about the visit and conclusions. Having done so, my view is that the STT did not act with fault in terms of recording and communicating the outcome of its visit. I say this for the following reasons.
• It was reasonable and in accordance with paragraph 10.1 of the NMC Code for the STT nurse to prioritise urgent care to other patients over writing up the notes of the visit to Mr X. The STT nurse entered the notes on Mr X’s electronic health record about three hours after the visit, which was as soon as possible after the event.
• The time of STT’s visit to Mr X (around 17:30) was outside normal office hours and they were needed to attend to other urgent cases after that visit. I would therefore not expect STT staff to have spent time trying to proactively contact the AMHP or the CMHT about their visit. Even if STT staff had tried to do this, they may not have been able to get through to the AMHP. The note the STT eventually entered onto Mr X’s electronic records is enough to comply with the requirements of paragraphs 8.2 and 8.3 of the NMC’s Code.
29. Therefore, the second visit Mr X had on the same day was not the result of fault by the Trust or Council.
30. Records corroborated by the Police confirm the Council organised for a doctor to attend when the AMHP and the Police visited Mr X at home. There was no fault by the Council in this respect.
31. The STT staff considered Mr X did not meet the criteria for an MHA assessment at the time of their visit. However, a few hours later, the AMHP and doctor did. Deciding whether a person meets the criteria for an assessment under the MHA is a matter of clinical opinion and can depend on how a person is at the time. In this complex clinical context, it is not uncommon for differences of opinion to occur. This may mean that:
• professionals disagree whether a specific symptom is present; or
• professionals may agree a symptom is present, but disagree as to its severity and significance in terms of the need for an MHA assessment; or
• a change in a person’s presentation or the availability of new information may lead a professional to take a different view from others who saw the person earlier.
32. The available records show that both the STT and the AMHP properly considered the information available to them, including Mr X’s presentation at the time of their visits, before reaching their different conclusions.
33. Therefore, there was no fault in the way the AMHP concluded that Mr X should go to the Clinic for an assessment despite the STT’s earlier view that there was no need to use the MHA.
34. Mr X also complains about the time it took to assess him. He says that as a result he spent several hours in a distressed state before returning home in the early hours of the morning. He told us the actual assessment only took a few minutes and the professionals quickly concluded that he did not need to go to hospital and could return home. For the reasons set out above, I have already concluded that there was no fault in the way the AMHP decided Mr X needed an assessment. I have therefore considered whether the time taken overall from the start of the second visit to completing the assessment amounted to fault. My view is that there was no fault in the length of time this took, for the following reasons.
• Paragraph 16.8 of the MHA Code says an assessment can happen in a person’s home “if it is safe and appropriate to do so and the person consents”. Given Mr X’s distress and reluctance to have the AMHP in his home, there was no fault in requiring the assessment to happen at the Clinic.
• This meant Mr X would need to be transported safely to the Clinic. The Council acted in accordance with the MHA Code and without fault in organising an ambulance to transport Mr X to the Clinic. There was a wait of around an hour for the ambulance. This was not something the Trust or the Council had control over.
• There was a further delay when Mr X arrived at the Clinic, because he initially refused to take part in an assessment conducted by the AMHP. It is unclear how long this lasted but the overall time between Mr X’s arrival at the clinic and the end of the interview is one hour and five minutes. Mr X then had to wait for a taxi to take him home. The amount of time this took is not the result of fault by the Council or Trust.
35. In summary, I have found no evidence of fault by the Council or the Trust in the way they dealt with Mr X’s MHA assessment in September 2022. It is clear that Mr X was very distressed by the experience, but the distress was not the result of fault by the organisations.

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Final decision

36. I have found no fault in the actions of the Council and the Trust. I have now completed my investigation.

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Investigator's decision on behalf of the Ombudsman