Cumbria County Council (18 013 457)

Category : Adult care services > Assessment and care plan

Decision : Upheld

Decision date : 22 Nov 2019

The Ombudsman's final decision:

Summary: Mr X complained the Council failed to properly carry out an assessment under the Mental Health Act 1983 which led to his detention under section 2 of the Act. Mr X said he was discriminated against and wrongfully detained. The Council has already accepted there was fault in areas of the assessment process and made recommendations to prevent the same issues occurring again. The Council has agreed to provide evidence it has carried out those recommendations.

The complaint

  1. Mr X complained the Council’s Approved Mental Health Practitioner (AMHP) incorrectly decided to seek an order to assess and detain him under s135 of the Mental Health Act (MHA) 1983 and incorrectly decided to detain him in a psychiatric hospital.
  2. Mr X complained in particular that the AMHP:
    • took into account irrelevant matters (deciding he had a diagnosis of bipolar disorder, which Mr X and the community mental health team said he does not have);
    • failed to take into account relevant matters (in particular his correct diagnoses, especially Asperger’s Syndrome and speech patterns associated with Asperger’s); and
    • failed to follow the Mental Health Act 1983 Code of Practice with regard to the assessment/detention of people with autism.
  3. Mr X says that as a result, the Council discriminated against him because he has autism. He wants the Council to use his case to highlight the general discrimination experienced by people with autism.

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The Ombudsman’s role and powers

  1. 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)
  2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
  3. We cannot question whether a council’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)
  4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I spoke to Mr X and considered his view of his complaint.
  2. I made enquiries of the Council and the relevant NHS Trust and considered the information they provided.
  3. I wrote to Mr X and the Council with my draft decision and considered the comments I received before I made my final decision.

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What I found

Legislation

  1. Under Section 135 of the Mental Health Act (MHA) 1983, if the courts believe there is reasonable cause to suspect a person who is suffering from a mental disorder is unable to care for themselves, then it may issue a warrant to allow a police officer to enter any premises by force where that person is believed to be. The court will grant the warrant based on information provided by an AMHP.
  2. Section 2 of the MHA allows someone to be detained in hospital without their consent for up to 28 days. Prior to doing so two qualified medical practitioners must assess the patient and agree they are suffering from a mental disorder of a nature or degree that the patient ought to be detained in hospital in the interests of their own health or the safety of another.
  3. People who have been detained under section 2 of the MHA can apply for a hearing to the first-tier tribunal if they disagree with the decision. The tribunal must discharge the person from detention if, on the day of the hearing, they do not meet the criteria needed for detention.
  4. The Mental Health Code of Practice states that for people with autism, detention should be avoided if alternative methods can be found within the community. However, the Code goes on to say that “when a person is unable to prevent themselves from causing severe harm to themselves or others, compulsory measures under the Act may be needed”.

The role of Approved Mental Health Professionals

  1. The MHA sets out the role of Approved Mental Health Professional (AMHPs). AMHPs are involved in assessment and detention of people with mental illness. Councils appoint AMHPs. This means the Ombudsman can consider whether there was any fault in the administrative actions of an AMHP.

What happened

  1. Mr X has a diagnosis of Asperger’s Syndrome. He has had several admissions under Section 2 of the MHA to psychiatric inpatient units over the previous few years.
  2. An entry in his files from 2013 stated he had “Cyclothymia”, a condition similar to Bipolar Disorder. Many later entries recorded Mr X’s opinion that he did not have Cyclothymia or Bipolar Disorder but instead experienced disturbed speech patterns because of his Asperger’s Condition.
  3. At the end of September 2018, Mr X took an overdose and phoned the mental health team. He said this was not to kill himself but as a form of protest against the NHS, with whom he was in dispute over a number of issues. Mr X was admitted to hospital by ambulance.
  4. On 4 October, Mr X telephoned the mental health team again and said he was going to chop his finger off. The records of the telephone call state Mr X said he had “access and the intent, I have actually done this before”.
  5. The mental health team contacted the Council on 5 October to request an MHA assessment. The same day, the Council’s AMHP applied to the Magistrates’ Court under section 135 of the MHA for a warrant to allow a police officer to enter Mr X’s property by force if required, in order to carry out the assessment. The application to the court stated Mr X had “a recognised diagnosis of bipolar disorder and has had numerous Mental Health Act admissions over a number of years… it is believed that he is currently in relapse of his Bipolar Disorder and requires urgent medical health assessment”. The application also detailed Mr X’s history of previous admissions and stated police intervention may be needed as there was a risk of harm to Mr X and others if efforts were made to detain him.
  6. The Court granted the warrant. On 6 October, the Police, AMHP and two psychiatrists visited Mr X’s property and he let them in. The AMHP and the two psychiatrists assessed Mr X and agreed he required detention under Section 2 of the MHA for further assessment.
  7. The AMHP’s assessment recorded Mr X had no communication needs. The AMHP left blank the section for recording if communication impacted on wellbeing.
  8. Mr X was admitted to a secure inpatient unit on the agreement of the AMHP and two psychiatrists. He appealed to the tribunal and his hearing was due to be heard on 12 October. However, this did not go ahead because he was discharged on 11 October.
  9. Mr X complained to the Trust and the Council. His complaint to the Council related to the AMHP’s assessment on 6 October. Mr X said the AMHP failed to take proper account of his communication needs and that the diagnosis of Bipolar, which he disputes having, was the major factor in determining the outcome of the assessment.
  10. The Council appointed an investigator. The investigator spoke to Mr X and exchanged a number of emails with him and considered Mr X’s files.
  11. The investigator partially upheld Mr X’s complaint finding that “the account of the assessment makes limited acknowledgement of [Mr X’s] communication needs and does not reference his cluttered speech or discuss the rationale for detention in relation to autism”. They concluded however, that it was not possible to say whether this determined the outcome of the assessment and Mr X’s ultimate detention. In making this finding the investigator stated the mental health team which provided crisis support in the community had made the initial referral as it did not consider it could give Mr X the help he needed in the community.
  12. Mr X remained unhappy and complained to the Ombudsman.

My findings

  1. Mr X is unhappy with the AMHP’s application to the courts because he states it contained inaccuracies and an incorrect diagnosis of his conditions.
  2. The law says the Ombudsman cannot look at matters that have been considered by the courts. Therefore, I cannot look at the AMHP’s application to court for a section 135 warrant or the contents of that application.
  3. Mr X complained about some of the content of the AMHP assessment and believes that the AMHP failed to take into account a correct diagnosis of his conditions. He complained that the AMHP failed to consider whether there was alternative support available in the community to avoid detention because he has autism.
  4. The Council partially upheld Mr X’s complaints but said it was unable to say the outcome of the assessment and Mr X’s detention would have been different if these matters had been taken into account. These findings were robust and evidence based. The Council made recommendations to help prevent a reoccurrence of these faults. These actions are a suitable way to resolve Mr X’s complaints. It is unlikely any further investigation by the Ombudsman would add to the Council’s investigation or would lead to a different outcome.

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Agreed actions

  1. Within one month of the date of the final decision, the Council has agreed to provide evidence it has carried out the recommendations made by the investigation into Mr X’s complaints.

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Final decision

  1. The Council has already accepted fault in areas of the MHA assessment process and has agreed to my recommendations. Therefore, I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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