Summary: We will not investigate Mr X’s complaint. He has already appealed the decision to detain him under Section 2 of the Mental Health Act to the First Tier Tribunal (Mental Health).

The complaint

1. Mr X complains that an Approved Mental Health Professional (for Hertfordshire County Council) and two Section 12 doctors (for NHS Herts Valleys Clinical Commissioning Group [now Hertfordshire & West Essex Integrated Care Board]) wrongly recommended detaining him under Section 2 of the Mental Health Act 1983. He says he was detained for 21 days based on false allegations and no other reasons. That should never have happened.
2. Mr X says the Approved Mental Health Professional and Section 12 doctors completed the Mental Health Act assessment when he was not at his ‘baseline level’. The police had detained him under Section 136 of the Mental Health Act for 48 hours in difficult circumstances.
3. Mr X says events had a severe impact on his mental health, and he has questioned his own sanity. He says this caused him stress and anxiety. Mr X says this has affected his social circles as they are aware of what happened, and there is a stigma attached. He tells us his legal rights were taken away from him.
4. Mr X is seeking a financial remedy to acknowledge what happened to him.

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The Ombudsmen’s role and powers

5. The Ombudsmen may decide not to investigate a complaint if the complainant had a right of appeal and it was reasonable to expect them to use it. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by the complainant and the organisations.
7. I considered the Ombudsman’s Assessment Code.
8. Mr X had an opportunity to comment on a draft decision.

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What I found

Relevant legislation

9. Under the Mental Health Act 1983 (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’. Usually three professionals need to agree that the person needs to be detained in hospital. These include an Approved Mental Health Professional (AMHP) and usually (but not always) two doctors who have been specially approved in Mental Health Act detentions (Section 12 doctors).
10. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person. Any admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative. Local authorities are responsible for the actions of AMHPs.
11. When Section 12 doctors make recommendations under sections 2, 3 or 4 of the MHA, they are acting under powers which have been given to them under the MHA. But sometimes those doctors make those recommendations under an NHS contract, which brings any complaint about their decision making under the Parliamentary and Health Service Ombudsman’s jurisdiction.
12. In this complaint, the two Section 12 doctors did not work for the NHS Trust who ultimately decided to detain Mr X under Section 2. NHS Herts Valley Clinical Commissioning Group was responsible for the actions of those doctors because it paid them for that work. This explains why the ICB (formerly the CCG), and not the NHS Trust, is the organisation in this complaint.
13. People who have been detained under the MHA can apply for a hearing to the First-Tier Tribunal (Mental Health) 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.

My findings

14. In late September 2021, the police arrested Mr X and detained him under Section 136 of the MHA. Section 136 of the MHA empowers the police to take someone who is mentally ill in public places and move them to a place of safety. Following that, the AMHP and two Section 12 doctors carried out a Mental Health Act assessment. They recommended detaining Mr X under Section 2 of the MHA. An NHS Trust then agreed to detain Mr X to assess his mental health and to provide any treatment he might need.
15. Mr X appealed his detention under Section 2 to the Tribunal. In mid-October, the Tribunal decided to discharge Mr X from Section 2.
16. I cannot investigate Mr X’s complaint about his detention under Section 2. That is because he has appealed that decision to the Tribunal.

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Final decision

17. I will not investigate Mr X’s complaint. He has already appealed the decision to detain him to the Tribunal.

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Investigator's decision on behalf of the Ombudsman