Summary: Mr J complains about the Council's actions in relation to his detention under the Mental Health Act 1983. The Ombudsman has found no fault.

The complaint

1. Mr J complains through his advocate, Mr B, about the Council's actions in relation to his detention under the Mental Health Act 1983. In particular, he complains that:
1. An Approved Mental Health Practitioner (AMHP) presented false information to a magistrate in order to obtain a warrant under s135(1) of the Mental Health Act 1983.
2. The AMHP service failed to maintain appropriate records of the court application such that it is not now possible to determine whether AMHPs acted unlawfully in Mr J's case.
3. The AMHP service failed to abide by the provisions of the Act and its associated Code of Practice between October 2018 and July 2019. In particular the Council:
1. Did not contact Mr J or his relatives between the referral on 12 October 2018 and the execution of the s135(1) warrant on 7 November 2018
2. Did not give Mr J notice of the planned assessment of 7 November 2018
3. Did not consult his nearest relative before assessing Mr J for possible detention under section 3 on 7 November 2018
4. Did not interview Mr J in a suitable manner on 17 June 2019, as the AMHP interviewed him at 1.30am
5. Did not provide a report which complied with the Code of Practice in June 2019
4. An AMHP acted unlawfully by refusing to consult Mr J's nearest relative in July 2019 as required by the Act.
2. Mr J says as a result the Council has breached his human rights, causing significant distress.

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What I have investigated

3. I have investigated complaints c) and d). I explain at the end of this statement why I have not investigated parts a) and b).

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The Ombudsman’s role and powers

4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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)
5. 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)
6. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended)
7. We cannot investigate a complaint if someone has appealed to a tribunal. (Local Government Act 1974, section 26(6)(a), as amended)
8. We cannot investigate a complaint if it is about a personnel issue. (Local Government Act 1974, Schedule 5/5a, paragraph 4, as amended)
9. 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

10. I spoke to Mr J and Mr B about the complaint and considered the information they sent, the Council’s response to my enquiries, and:
• The Mental Health Act 1983 (“the Act”)
• The Mental Health Act 1983 Code of Practice 2015
11. I gave Mr J and the Council an opportunity to comment on two draft decision statements. I considered those comments and the information Mr B and the Council provided in response before making a final decision.

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What I found

Mental Health Act 1983

12. A person suffering from a mental disorder may be detained in hospital for assessment and/or treatment under the Mental Health Act 1983 (the Act). An application for detention under the Act can be made by an Approved Mental Health Professional (AMHP). An application must be supported by two medical recommendations.
13. A person can be detained under Section 2 of the Act for a maximum of 28 days to enable an assessment to be carried out in hospital. A person may be detained under Section 2 only if:
• the person is suffering from a mental disorder “of a nature or degree which warrants their detention” for at least a limited period, and
• the person ought to be detained in the interests of their own health or safety or to protect others.
14. The purpose of detention under Section 3 is to provide treatment. Detention under Section 3 empowers doctors to detain a patient for a maximum of six months. The detention can be renewed for another six months.
15. An AMHP is a social worker or other professional approved by the local authority to carry out duties under the Act. An AMHP is considered to be acting on behalf of the local authority. This means complaints about an AMHP's actions fall under the jurisdiction of the Ombudsman.
16. The Code of Practice says AMHPs may make an application for detention only if they:
• have interviewed the patient in a suitable manner,
• are satisfied that the statutory criteria for detention are met, and
• are satisfied that, in all the circumstances of the case, detention in hospital is the most appropriate way of providing the care and medical treatment the patient needs.
17. AMHPs have up to 14 days (depending on when the patient was last examined by a doctor as part of the assessment) in which to decide whether to make the application, starting with the day they personally last saw the patient. The AMHP should provide an outline report for the hospital at the time the patient is first admitted or detained, giving reasons for the application. This should be followed by a full report for the local authority.
18. People who have been detained under the Act can apply for a hearing to the first-tier tribunal (mental health) (“the 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.

Section 135 warrants

19. Under Section 135 of the Act, 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 – accompanied by an AMHP and doctor – to enter any premises by force where that person is believed to be. An AMHP applies to a magistrate to get a warrant.
20. Following entry under the warrant, the AMHP and doctor determine whether the person needs to be taken to a place of safety for further assessment, or for arrangements to be made for their treatment or care. The warrant allows the police to take the person to a place of safety even if they do not wish to go. Where it is reasonably practicable, the intended place of safety should be identified, and the necessary arrangements made, before a warrant is applied for.
21. The warrant lasts for up to 24 hours. In this time an AMHP or doctor must see the patient to decide whether they need to be in hospital. Detention under the warrant can be extended up to a maximum of 36 hours.

The nearest relative

22. The Code of Practice says AMHPs are required to identify the patient's “nearest relative” (NR). The NR is a family member who has certain responsibilities and powers if a person is detained in hospital under the Act.
23. The Act lists family members who may be the person’s NR. Usually the NR will be the person who comes highest on the list, for example parents come before siblings. An NR can delegate their rights to someone else (who has agreed) by notifying in writing the patient and the hospital managers or the local authority. The NR can take back their rights by notifying the same people.
24. AMHPs must “take such steps as are practicable” to inform the NR that an application to detain under Section 2 is to be, or has been, made.
25. The AMHP must consult with the NR before a patient can be detained under Section 3 unless it is not reasonably practicable or would involve unreasonable delay. The Code of Practice says the NR’s own health could be a reason for not consulting them. Detention under Section 3 cannot go ahead if the NR disagrees with the decision.
26. The Code of Practice says that "[when] consulting nearest relatives AMHPs should, where possible:
• ascertain the nearest relative's views about both the patient's needs and the nearest relative's own needs in relation to the patient;
• inform the nearest relative of the reasons for considering an application for detention and what the effects of such an application would be; and
• inform the nearest relative of their role and rights under the Act."

What happened

October – November 2018

27. Mr J has been known to adult mental health services since 2015. He lived with his father, who was Mr J’s nearest relative until he delegated this to Mr J’s sister in 2017.
28. In October 2018, the Council received concerns that Mr J was not taking medication and his mental health appeared to be deteriorating. The local NHS crisis resolution home treatment team assessed Mr J on 3 October 2018. It found he did not meet the criteria to be detained under the Act and that Mr J refused to engage with community mental health services.
29. The Council received further concerns about Mr J, including that he was behaving in a threatening manner. The team visited his home several times, but he was not available. On 12 October 2018 the team referred Mr J’s case to the AMHP to carry out a Mental Health Act assessment, due to escalating concerns about the deterioration of Mr J’s mental state and that he appeared to be a high risk to himself and others.
30. The AMHP applied to the magistrate for a Section 135 warrant as it was considered Mr J was unlikely to engage in an assessment. The magistrate granted the warrant on 25 October 2018. It was arranged to be executed on 7 November 2018.
31. On 6 November 2018 the Council contacted Mr J’s sister and informed her that Mr J would be assessed under the Act. She did not consider an assessment was necessary. She sent the Council a copy of the 2017 notification of her NR delegation.
32. The police executed the warrant the next day, accompanied by an AMHP and two doctors. The AMHP and doctors decided that whilst Mr J had a mental disorder which met the grounds for the Act, it was not to a nature or degree to warrant admission to hospital. He was therefore not detained. They believed that Mr J would benefit from the support of a community team. An appointment was made with the doctor, but Mr J cancelled it and the case was closed.

May – July 2019

33. In May 2019, the Council received further concerns about Mr J’s behaviour and mental health, including reports that the police had issued Mr J with a warning about harassing neighbours. An application for an assessment and Section 135 warrant was made on 10 June 2019.
34. The warrant was granted on 12 June 2019 and executed on 14 June 2019. The police, two doctors and an AMHP attended. The case records say both doctors believed Mr J was suffering from a mental disorder of a nature and degree which warranted detention in hospital. They were also of the opinion that Mr J ought to be detained in the interest of his own health, safety and with a view to the protection of other persons. There is reference in the case records to Mr J being “assessed in the community” and detained under Section 2, and that he was transferred to the place of safety as no bed was available.
35. I have seen no evidence that Mr J’s sister was contacted. The note of the assessment says that Mr J’s father was the nearest relative and that he was present in an adjoining room.
36. Mr J was kept in the place of safety until 17 June 2019, which was a breach of the warrant’s 24-hour limit. The CQC has upheld Mr J’s subsequent complaint that he was unlawfully detained.
37. The AMHP and a doctor assessed Mr J at 1am on 17 June 2019 in the place of safety. They detained him under Section 2. The case records show Mr J was awake and in the lobby at the time of the assessment. Mr B sent me the AMHP’s handwritten outline report. It says Mr J was suffering from a psychiatric illness requiring treatment, had not slept for three days and had intimidating behaviour towards neighbours. It says Mr J’s NR was his sister and attempts had been made to contact her.
38. In response to my first draft decision, the Council sent me the AMHP’s full report. This says Mr J had been previously “assessed and met the criteria for detention under section 2 [but] at the time there were no beds available within the MH Trust and so he needed to wait in the PoS until a bed became available. This didn’t happen until 16/06/19 when I was asked to complete his assessment.”
39. The AMHP’s full report also says “this wouldn’t normally be a suitable time to interview a patient however I was aware that Mr J had been waiting a considerable length of time for his assessment to be concluded and for him to be informed of the outcome. Staff also informed me he was awake and willing to be interviewed. Due to the time-lapse between his s135(1) MHA assessment and this assessment I decided to arrange a further s12 Dr to attend and undertake the assessment with me.”
40. Mr J’s sister called later that morning and was informed that Mr J had been detained under Section 2 and was being transferred to a private hospital (Hospital 1).
41. Mr B sent me copies of two letters dated 19 June 2019 from Mr J’s father which had been hand delivered to Hospital 1. One was revoking the delegation of his NR rights to Mr J’s sister. The other was to Hospital 1 ordering Mr J to be discharged. There is no reference to these letters in the case records and Mr J was not discharged. This matter is the subject of a separate complaint Mr J has made to Hospital 1 and the CQC.
42. Mr J was transferred from Hospital 1 to a hospital in the Council’s area on 9 July 2019. The AMHP and doctor assessed Mr J on 12 July 2019 and detained him under Section 3 for treatment. In response to my enquiries the Council sent a case record showing the AMHP contacted Mr J’s sister on 12 July 2019. She told the AMHP that Mr J’s father was in hospital and the NR rights had been delegated to her. I have seen no evidence she objected to the detention.
43. The record of a review of Mr J’s case on 16 July 2019 says there had been confusion about who the NR was, and that Mr J had advised it was his father not sister. Mr J says he had tried to explain this during the assessment on 12 July but the AMHP refused to listen or view his father’s letters. The case record of the assessment says only that Mr J was asked if he had spoken to his sister and had replied it was a family matter.
44. In response to my first draft decision, the Council sent the AMHP’s application for Section 3 detention. This was completed on 12 July 2019 and amended on 15 July 2019. It says Mr J’s father was the NR but it had not been “reasonably practicable” to consult him as he was in hospital.
45. Mr J appealed to the Tribunal, but it did not uphold his appeal. He was discharged in autumn 2019.

Mr J’s complaints

46. Mr J complained to the Council about the circumstances around the November 2018 assessment. The Council replied on 19 March 2019. It did not uphold his complaint. The Council said the October 2018 warrant application was not unlawful, though it acknowledged the information in it may not have been clear. The Council had therefore asked the AMHP lead to arrange refresher training for all AMHPs on preparing reports for court and applications for a warrant. It has sent the Ombudsman evidence this training has been carried out.
47. Mr J complained on 1 August 2019 that the June 2019 warrant had been unlawful and that the AMHP had not consulted the NR prior to his detention under Section 3. The Council replied on 19 August 2019. It said the warrant was not unlawful, as it had been granted by the court after presentation of written and verbal evidence. The Council said the AMHP had checked the records to confirm who the NR was. Mr J complained to the Ombudsman.

My findings

48. I have considered each part of Mr J’s complaint separately.

c) The AMHP service failed to abide by the provisions of the Act and its associated Code of Practice between October 2018 and July 2019. In particular the Council:

1. Did not contact Mr J or his relatives between the referral on 12 October 2018 and the execution of the s135(1) warrant on 7 November 2018

49. There is no requirement to inform or consult the NR about the execution of a s135(1) warrant, but the Code does require the AMHP to inform the NR where practicable that a Section 2 assessment will be, or has been, carried out. I have seen evidence the AMHP did so on 6 November 2018. Mr J’s sister did not consider the assessment to be necessary, but the Code does not require NRs to agree to a Section 2 assessment. There is therefore no fault.

2. Did not give Mr J notice of the planned assessment of 7 November 2018

50. In response to my enquiries the Council explained it had not informed Mr J prior to the assessment and execution of the warrant because of the risk he may have avoided the assessment. I can see no requirement under the Act or in the Code of Practice for the Council to have informed Mr J. I therefore do not find fault.

3. Did not consult his nearest relative before assessing Mr J for possible detention under section 3 on 7 November 2018

51. Mr B queried the purpose of the 7 November 2018 assessment as the AMHP had said the NR had been “consulted”, rather than “informed”. The purpose of a Mental Health Act assessment is to determine whether someone should be detained under either Section 2 or Section 3 of the Act. The Council spoke to Mr J’s NR on 6 November 2018 but in the event no application was made either under Section 2 or Section 3. There was no fault by the Council.

4. Did not interview Mr J in a suitable manner on 17 June 2019, as the AMHP interviewed him at 1.30am

52. Mr B says the AMPH did not interview Mr J in a suitable manner because it was the middle of the night and he had been detained for 64 hours.
53. In response to my enquiries, the Council said Mr J was interviewed then because a bed became available. The case records show he was awake, sitting in the lobby, eating and drinking, and talking to staff. The Council later sent me the AMHP’s full report of the assessment, which says the AMHP decided to assess Mr J at that time due to the length of time Mr J had been in the place of safety.
54. The Act and Code of Practice do not define “a suitable manner” and do not say that interviews cannot take place at night. This means the AMHP was entitled to use their professional judgment to determine what was suitable.
55. The Ombudsman cannot question the professional judgment of officers unless there is fault in the way the decision was reached. The AMHP was aware Mr J had been detained for three days, had had no sleep and was awake. He decided to interview Mr J. That was a decision he was entitled to make; I have seen no evidence of fault in the way he made it and I therefore cannot question it.
56. Mr B says it was wrong for the AMHP to use a different doctor on 17 June 2019 to the ones used on 14 June 2019. The Code of Practice says the AMHP and at least one doctor should see the patient jointly to decide if the criteria to apply for detention under either Section 2 or Section 3 are met. Two medical recommendations are required and if both doctors cannot attend the AMHP must discuss the case with the other one. The Code says “where practicable” one of the doctors should have previous acquaintance with patient. I can see no requirement for the same doctors to be used in the execution of a s135 warrant and the assessment. The assessment report says two doctors had been involved. I do not find fault.
57. Mr B says the 14 June 2019 assessment was “not a planned assessment” and Mr J’s family was not consulted or informed of it.
58. On 14 June 2019 the Council executed the s135(1) warrant. The aim was to determine whether Mr J needed to be taken to a place of safety so a decision could be made whether he should be detained under Section 2 or Section 3 of the Act. The Code says where it is reasonably practicable, the intended place of safety should be identified, and the necessary arrangements made, before a warrant is applied for. This had been done as Mr J was transferred to a place of safety. There was no requirement for a bed in a mental health hospital to have been identified prior to the execution of the warrant, nor is there a requirement for the NR to have been informed prior to the warrant being executed.
59. I find that the case records are inconsistent. They refer to Mr J being detained under Section 2 and moved to a place of safety as there were no hospital beds, but they also say he was “liable to be detained”. However, I have seen no evidence of a Section 2 application being made prior to 17 June 2019 and the evidence shows Mr J was being held under s135(1) from 14 June 2019 to 17 June 2019. I therefore find no fault.
60. The breach of the warrant is the subject of a separate complaint which the Ombudsman is not considering.

5. Did not provide a report which complied with the Code of Practice in June 2019

61. Mr B says the AMHP’s outline report of the Section 2 assessment is unsigned, “woefully inadequate”, contains errors, does not name the two assessing doctors, and does not meet the requirements of the Code of Practice.
62. It is not the Ombudsman’s role to determine whether a practitioner has met their professional standards. An assessment report was completed and I therefore do not find fault.
63. However, in response to my first draft decision, the Council sent me an updated version of the AMHP’s full assessment report of June 2019. It said an incomplete version had been previously uploaded to the case file in error. The new version contained more detail and clarifications. It is not fault to update records and during our investigations we may find more information about reasons for decisions that were not in the original notes or records. However, the updated version sent to the Ombudsman is not clearly marked to show it was changed after the event. This is poor practice as it leaves the Council open to concerns that it is trying to change evidence. The Council should label the report to show when it was amended.

d) An AMHP acted unlawfully by refusing to consult Mr J's nearest relative in July 2019 as required by the Act.

64. Mr J’s sister was informed of the Section 2 assessment on 17 June 2019. There is evidence Mr J’s father took back his NR rights on 19 June 2019. Mr J says he tried to explain this to the AMHP on 12 July 2019 but was ignored. I am unable to say what happened at the assessment and I have seen evidence the AMHP contacted Mr J’s sister on 12 July 2019 and that she did not object to his detention under Section 3.
65. In my first draft decision statement my provisional view was it was fault for the Council not to have been aware that Mr J’s father had taken back his NR rights and had ordered his son’s discharge from detention under Section 2.
66. In response the Council provided the AMHP’s Section 3 application which said Mr J’s father was the NR and had not been consulted as it was not reasonably practical as he was ill in hospital. Mr B says it would have been possible to consult the NR. But this was a professional judgment for the AMHP to make. The Code allows an AMHP to not consult an NR for reasons of their own health. I therefore changed my view and do not find fault.

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Final decision

67. I have found no fault by the Council. I have completed my investigation.

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Parts of the complaint that I did not investigate

68. I have not investigated complaints a) and b), because 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, the contents of that application, or the Council's record-keeping about its court action. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)
69. Mr J says he is unable to complain about individual officers’ actions as they are not identifiable from the records. The law says the Ombudsman cannot investigate personnel matters. This means any inability to complain about individuals is not a claimed injustice we should consider.

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Investigator's decision on behalf of the Ombudsman