Summary: Dr X complains about an Approved Mental Health Professional’s application to detain Mr Y under the Mental Health Act. There is no evidence of fault in how the Approved Mental Health Professional assessed Mr Y. But the Council is at fault as the Approved Mental Health Professional failed to properly notify Dr X of her rights as the nearest relative. This fault will have caused uncertainty to Dr X which the Council has agreed to apologise for.

The complaint

1. Dr X complains that the Approved Mental Health Professional’s application for Mr Y to be detained under the Mental Health Act was flawed as she:

• Failed to give appropriate consideration to whether a physical health condition could be causing Mr Y’s mental health symptoms;
• Failed to give proper consideration to whether there were less restrictive alternatives to detention for Mr Y;
• Failed to properly consult Dr X as Mr Y nearest relative when carrying out the assessment;
• Failed to notify Dr X of her rights as a nearest relative to dispute the decision to detain Mr Y;
• Failed to accurately record details provided by Dr X during telephone calls about attending the assessment and about Mr Y’s symptoms.

2. Dr X considers that as a result the decision to detain Mr Y under the Mental Health Act was wrong and contributed to events which led to Mr Y suffering a life threatening illness.
3. Dr X is also complaining that Greater Manchester Mental Health Trust delayed in dealing with her complaint which caused distress to her and Mr Y.

Back to top

The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
5. 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
6. 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.
7. If we are satisfied with an organisation’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)

Back to top

What I have and have not investigated

8. I have considered Dr X’s complaint about the actions of the Approved Mental Health Professional (AMPH). I have not investigated the hospital’s decision to refuse a brain scan for Mr Y, the recommendations of the section 12 doctors or his treatment as an inpatient as these are health matters which are not within our jurisdiction.

Back to top

How I considered this complaint

9. I have:

• Considered the complaint and the information provided by Dr X;
• Discussed the issues with Dr X;
• Made enquiries of the Council and considered the information provided;
• Invited Dr X and the Council to comment on the draft decision. I considered any comments received before making a final decision.

Back to top

What I found

Law and guidance

10. The Mental Health Act 1983 sets out when a person can by law be admitted, detained and treated in hospital against their wishes.
11. 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.
12. AMPHs are approved by a council with responsibility for adult social care to carry out certain duties under the Mental Health Act 1983. An application for detention may be made AMPH or the patient’s nearest relative. It must be supported by two medical recommendations in accordance with the Mental Health Act 1983. The objective of the assessment is to determine whether the criteria for detention are met, and if so, whether an application for detention should be made.
13. A proper assessment cannot be done without considering alternative means of providing care and treatment so AMPHs and doctors should, as far as possible in the circumstances, identify and liaise with services which may be able to provide alternatives to admission in hospital (paragraphs 14.30 to 14.34 of the Mental Health Act 1983 Code of Practice).
14. AMPHs are required by the Act to attempt to identify the patient’s nearest relative. When AMPH makes an application under section 2 they must take such steps as are practicable to inform the nearest relative that the application is to be or has been made and of the power of the nearest relative to discharge the patient. (paragraphs 14.57 and 14.58 of the Mental Health Act 1983 Code of Practice)

What happened

15. Mr Y attended hospital as he was unwell. The hospital carried out an initial assessment and referred Mr Y to an AMPH for a mental health assessment. Staff carrying out the initial assessment also referred Mr Y for a brain scan to rule out any neurological conditions which could be causing his symptoms. The hospital refused the referral as it considered a scan could be carried out after Mr Y was admitted to a psychiatric ward.
16. The AMPH’s notes record that she contacted a doctor known to Mr X and a hospital psychiatrist but they were not available. She therefore arranged to carry out the assessment with two doctors who had been approved under section 12 of the Mental Health Act. These are doctors who are approved by the Secretary of State to recommend admission or treatment under the Mental Health Act 1983.
17. The AMPH carried out an assessment of Mr X to determine if he should be detained under the Mental Health Act. She considered the criterial for Mr Y’s detention had been met and there were no least restrictive options available. The assessment report noted:

• That a brain scan had been requested to rule out any neurological conditions which could be causing Mr Y’s symptoms. But the hospital had refused this request as it considered mental health needs should be ruled out before they could request this.
• The AMPH contacted Dr X prior to the assessment. The records note Dr X did not consider it would be helpful to detain Mr Y in hospital. The report also noted that the AMPH discussed with Dr X and Mr Y if he could engage with less restrictive treatments in the community rather than being detained.
• The two section 12 doctors recommended Mr Y be detained under section 2 of the Mental Health Act. They considered it was unlikely Mr Y would comply with community support and medication therefore an assessment and treatment in hospital was the least restrictive option.
• The AMPH consulted with a home based treatment team to see if Mr Y could be referred to them as a least restrictive option. The report notes the team declined the referral as they considered the risks were too high.

18. The AMPH’s records also notes she contacted Dr X after the assessment. The records note she left a voicemail for Dr X notifying her of the decision to detain Mr X and her rights as a nearest relative.
19. Mr Y was moved to a unit for patients suffering a mental health crisis. Shortly afterwards he suffered a life-threatening illness. It was subsequently found that Mr Y’s symptoms were caused by a neurological condition.
20. Dr X made a complaint to the Mental Health Trust about the decision to detain Mr Y under the Mental Health Act and his subsequent treatment. Dr X’s complaint included that the AMPH did not inform her of her name or role or the assessment process. She also complained that the AMPH refused to let her attend the assessment and did not give details of her rights as the nearest relative.
21. The Trust responded to Dr X’s complaint and considered the complaint against the AMPH on behalf of the Council. It acknowledged Dr X had been left with an unclear understanding of the process. It also acknowledged that the AMPH should have followed up her message about the rights of the nearest relative to ensure Dr X was clear about them. The Trust also said that Dr X had not been able to attend the assessment due to childcare issues.
22. Dr X raised that the AMPH assessment report contained a number of inaccuracies and that the AMPH told her she could not attend the assessment. The Trust agreed to consider Dr X’s complaint further. I understand it issued its final response on Dr X’s complaint approximately two and half years later.
23. In response to my enquiries, the Council has said:

• The AMPH liaised with medical professionals to attempt to facilitate a brain scan but was informed that a brain scan could be organised post admission to a psychiatric ward. She therefore had no alternative but to proceed with the Mental Health Act assessment due to Mr Y’s symptoms.
• The AMPH’s decision to detain Mr Y was proportionate and necessary.
• Best practice would dictate that the AMPH should have tried to make further contact with Dr X or sent an explanatory letter to explain the rights of the nearest relative.
• It is currently in the process of working on a Lived Experience/Carer evaluation project to seek feedback from people and their carers on their experience of the Mental Health Act process. It will use the information from the project to inform its continuous learning journey.

Analysis

Assessment

24. It is not our role to come to our own view on whether Mr Y should have been detained under the Mental Health Act. Our role is to examine whether there is evidence of fault in how the decision was made.
25. I consider there is no evidence of fault in how the AMPH carried out her assessment for Mr Y. The assessment report shows the AMPH caried out her assessment in accordance with the code of practice. The report shows she obtained the recommendations of two section 12 doctors, considered Mr Y’s presentation and symptoms, spoke to Mr Y and Dr X as Mr Y’s nearest relative. The AMPH consulted the relevant service when deciding if there were less restrictive options. The report also explains the AMPH’s reasons for why she considered the criteria had been met for Mr Y’s detention.
26. Dr X considers the AMPH should have considered if Mr Y’s symptoms were caused by a physical condition and she should have questioned the hospital’s decision to refuse a brain scan. The AMPH’s assessment report notes the hospital’s decision to refuse a brain scan until mental health concerns had been ruled out. The AMPH was entitled to rely on the hospital’s decision. But even if the AMPH had questioned the decision, I cannot know, on balance, what the outcome would have been.
27. The Council has also explained that the AMPH considered she had no choice to detain Mr Y for assessment due to his symptoms. This is evidenced by the AMPH’s assessment report. It explains why she considered Mr Y should be detained and why there were no less restrictive options. Furthermore, the section 12 doctors’ recommendations show they considered Mr Y met the criteria for detention under the Mental Health Act. I therefore do not consider there is evidence of fault in how the AMPH reached the decision that Mr Y should be detained.
28. Dr X has said the AMPH incorrectly recorded information in her report which Dr X provided by telephone. She has also said the Trust wrongly considered she could not attend the assessment and the AMPH told her she could not attend. I cannot know exactly what was said during the AMPH’s and Dr X’s discussions and whose recollections are correct. So, I cannot come to any view, even on balance, on whether the AMPH incorrectly recorded information from Dr X or told her she could not attend the assessment.
29. In commenting on the draft decision, Dr X has said that the AMPH placed Mr Y in a side room with security guards to preventing him from leaving the hospital and this was in breach of his rights. I do not consider I can reliably investigate why the AMPH placed security guards with Mr Y and whether this amounted to a breach of his rights. The events are now five years old so I do not consider I could establish the facts and come to a view, on balance, on whether there was fault by the AMPH. I also do not consider that I could achieve anything by investigating the matter. I could not come to a view, even on balance, that the outcome would have been any different for Mr Y. The Trust could have sought to detain Mr X even if he left the hospital.
30. The Council has acknowledged that the AMPH should have followed up her voicemail message to Dr X regarding the rights of the nearest relative. I consider the failure to do so is fault. This was an extremely stressful time for Dr X so she could not be expected to retain detailed information given verbally or left by voicemail. The Council should have ensured details were provided in writing. The failure to provide sufficient details about the rights of the nearest relative will have delayed Dr X’s ability to apply for Mr Y’s discharge. But I cannot say, even on balance, what the outcome would have been if Dr X had been aware of her rights sooner. I cannot know if Dr X would have been able to make her application and whether it would have taken effect before Mr Y became seriously unwell. I cannot know if the hospital would have opposed Mr Y’s discharge. But the fault will have caused some uncertainty to Dr X which the Council should apologise for.
31. The Council should also ensure information about the rights of the nearest relative is provided in writing in future.

Complaint

32. The Trust has failed to provide an explanation for the time taken to deal with Dr X’s complaint or a copy of its final response to her complaint. This is disappointing. But it would be disproportionate to what I could achieve for Dr X to investigate the matter any further.

Back to top

Agreed action

33. That the Council should:
1. Send a written apology to Dr X for the uncertainty caused to her by its failure to properly notify her of the rights of the nearest relative. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The Council should consider this guidance in making the apology I have recommended in my findings.
2. Ensure AMPHs provide details of the rights of the nearest relative in writing. This is to ensure the nearest relative has sufficient information to understand their rights when a patient is detained under the Mental Health Act.
34. The Council should take the action at a) within one month and the action at b) within two months of my final decision. The Council should provide us with evidence it has complied with the above actions.

Back to top

Final decision

35. Fault causing injustice.

Investigator’s decision on behalf of the Ombudsman

Back to top

Investigator's decision on behalf of the Ombudsman