Summary: Ms B complains an assessment of her son under the Mental Health Act did not take account of her views. We do not uphold this, although we do find fault in the failure of the Council to investigate Ms B’s complaint properly. This caused her injustice in unnecessary time and trouble. The Council accepts this finding and has agreed to apologise and make a financial payment to Ms B in recognition of her injustice.

The complaint

1. I have called the complainant ‘Ms B’. She complains that an Advanced Mental Health Practitioner (AMHP) did not carry out an adequate assessment of her son’s mental health in July 2018. Ms B also complains about the handling of a complaint she made about this matter.
2. Ms B says because of the above she and her husband (Mr B) suffered distress as her son (Mr C) was not detained in hospital as she considered he needed at the time as she believed he had symptoms of psychosis. Several weeks later there was a physical altercation with Mr B which caused Mr B injuries. This led to Mr C’s arrest and further AMHP assessment, which this time led to Mr C’s detention in hospital.

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The Ombudsman’s role and powers

3. 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)
4. 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)
5. 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

6. Before issuing this decision statement I considered the following:

• Ms B’s written complaint to the Ombudsman and supporting information she provided including in a telephone conversation.
• Details of correspondence Ms B exchanged with the Council and local NHS Trust before making her complaint to the Ombudsman.
• Information provided by the Council in reply to my written enquiries.
• Relevant law and guidance, referred to below.

7. I also sent both Ms B and the Council a draft decision statement setting out my thinking about the complaint. I took account of any comments made on the draft before completing this statement.

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What I found

Relevant law and guidance

8. The Mental Health Act 1983 provides a framework for assessment of individuals with mental health illness who may require detention in hospital. Section 2 of the Act explains individuals can be detained for the purpose of assessment. This must be considered in the interests of the patient’s health and safety or for the protection of others.
9. Applications for detention in hospital can be made by an individual’s ‘nearest relative’ or by an AMHP. Local social service authorities appoint AMHPs. So, the work of AMHPs fall within our jurisdiction.
10. Statutory guidance in support of the Mental Health Act explains how AMHPs should carry out assessments before making any application to detain a patient. Amongst other matters I note this says:

• An AMHP must interview a patient as part of their assessment. An AMHP can only make an application for detention if satisfied the criteria for detention are met and that detention “is the most appropriate way” of providing care and treatment. It says: “The role of the AMHP is to provide an independent decision about whether or not there are alternatives to detention under the Act, bringing a social perspective to bear on their decision, taking account of the least restrictive option and maximising independence”.
• Any application for detention must be supported by the recommendation of two medical practitioners.
• The guidance says AMHPs must take account of the patient’s wishes and their own views of their needs.
• A further “factor to be considered”’ is the “protection of others”. This involves consideration of the nature of the risk to other people arising from the patient’s mental disorder and “the likelihood that harm will result and the severity of any potential harm”.
• An AMHP must contact the patient’s nearest relative if making an application for admission. Consultation is not otherwise required. However, the guidance says: “although there are no specific requirements to consult the nearest relative it is important to recognise the value of involving other people in the decision-making process, particularly the patient’s carers, family members and advocates who are often able to provide a particular perspective on the patient’s circumstances. In so far as the case allows AMHPs should consider consulting with other relevant relatives, carers or friends and take their views into account”.
• AMHPs must record their reasons for their decision. They must inform patients of their decision and “subject to normal considerations around patient confidentiality” also give “their decision and the reasons for it” to the patient’s nearest relative. If the AMHP decides not to pursue an application then they should tell the nearest relative of their right to make such an application instead.

Key facts

Events in July and August 2018

11. The beginning of events covered by this complaint is July 2018. Mr C, an adult in his twenties, was living at the family home with his parents. He has a history of mental illness and had been previously detained under the Mental Health Act. Following a physical altercation with Mr B at the family home, the police arrested Mr C. They requested an assessment to see if Mr C should be detained under the Mental Health Act.
12. An AMHP carried out that assessment. Two doctors also assessed Mr C while he was at the police station. All had access to Mr C’s medical records.
13. The assessments recorded Mr C’s response and presentation to various questions. These included, but were not limited to, the circumstances around Mr C’s arrest. The notes of both the AMHP and doctors show they considered Mr C’s levels of engagement and presentation during discussion. They both concluded there was no evidence of an “underlying mental disorder that is of a nature or degree warranting detention under the MHA”.
14. After the assessment, the AMHP recorded telephoning Ms B, whom I understand is Mr C’s nearest relative as defined by the Act. The AMHP recorded Ms B’s “strong disagreement” with the outcome of the assessment. The AMHP notes indicate that Ms B believed Mr C would mask symptoms of illness when interviewed by professionals. She described difficulties living with Mr C. The AMHP recorded giving advice to Ms B to call the police if Mr C became aggressive again. Ms B explained she did not want Mr C to face criminal sanctions for his illness. The AMHP said she advised Ms B on how to access support if Mr B’s illness deteriorated. There is no record the AMHP told Ms B of her right to seek detention for Mr C.
15. Nine days after the assessment Ms B called a helpline run by the local NHS Trust to report a deterioration in Mr C’s illness. She gave details of his behaviour further to his assessment. Ms B was told the local community mental health team would contact her, but no contact followed for three weeks, after Ms B sent a lengthy email addressed to a doctor at the Trust. The email referred to Mr C’s history of illness, as well as events around the assessment carried out in July, before also addressing Mr C’s behaviour post-assessment.
16. This email prompted contact from the local community team. They told Ms B of her right to seek detention for Mr C as his nearest relative.
17. For several days the community team attempted contact with Mr C to see if he would consent to voluntary assessment. He did not co-operate and so in mid-August the community team contacted the AMHP service again.
18. Six days later the community team contacted Ms B to advise they proposed a further assessment of Mr C at the family home. The AMHP would need a warrant and to attend with police to carry this out without Mr C’s consent. The AMHP obtained that warrant two days later and scheduled the assessment for a further weeks’ time. However, two days later there was another confrontation between Mr B and Mr C which led to Mr C’s arrest.
19. A further assessment therefore took place at the police station and on this occasion Mr C was detained. As part of my investigation I have also considered the notes of that assessment, to include details of how the AMHP and doctors recorded Mr C’s presentation.

Ms B’s complaints

20. In July 2019 Ms B wrote to the Council complaining about the events described above. On three occasions between October 2019 and January 2020 Ms B sent follow up emails requesting a reply to her correspondence. In her January 2020 contact, Ms B also enclosed correspondence she had sent to the Trust expressing her dissatisfaction with the AMHP assessment (amongst other matters).
21. In October 2019 Ms B received a letter from the Trust which said an earlier investigation had addressed her concerns about “the assessment for your son”. It also said that the Trust did not have consent from Mr C to disclose information about his case. The Council later signposted us to this response, in explaining its understanding the Trust had replied to Ms B’s complaint.
22. My investigation has subsequently clarified the Trust’s reference to an “earlier investigation” refers to a letter it sent to Ms B in February 2018. This considered earlier contacts between her, Mr C and the community mental health team.

My findings

The complaint about the AMHP service July to August 2018

23. I note that neither the Mental Health Act 2003 nor the statutory guidance requires an AMHP to contact a patient’s nearest relative or wider family before undertaking an assessment. However, the guidance suggests this can be helpful. This could be to form a better understanding of the patient’s symptoms and their impact on others.
24. In this case I think it is regrettable the AMHP did not speak to Ms B until after they completed their assessment of Mr C. Having a conversation would have provided the AMHP with Ms B’s perspective of Mr C’s illness and the strains this evidently caused within the family home. Ms B could also have put Mr C’s presentation in context based on her previous observance of when he has suffered mental health illness.
25. However, I do not find the lack of consultation was a fault. The extent of consultation, if any, will be a judgment for the AMHP. In this case I am satisfied they had knowledge of Mr C’s medical history and the reasons for his detention at the police station. I do not think that speaking to Ms B was essential therefore in preparation for the assessment.
26. In addition, even if I did find fault, I could not say any injustice resulted. Because I do not think it would have affected the AMHP’s view of Mr C’s presentation. I cannot share with Ms B all the notes of the assessment. But I am satisfied it was thorough. I consider if Ms B saw the notes of the assessment she might contest some statements made by Mr C. But even if these went unchallenged at times this would not undermine the assessment. As its purpose was to consider Mr C’s presentation of mental illness which is decided with reference to a range of factors, such as the patient’s orientation in time and place, their levels of engagement, expression of ideas and so on. The AMHP considered Mr C’s presentation was not of a mental illness significant enough to justify an application for detention. That was the view of the medical practitioners also. All recorded their reasons for this decision taking account of such factors I have listed above.
27. For the same reasons, I am satisfied therefore the AMHP carried out their assessment without fault. There is no sign they took account of any irrelevant factors in reaching their judgment. Nor that they ignored any relevant considerations.
28. I also note here that I have seen the records of Mr C’s subsequent assessment in August 2018. These show a significant difference in his presentation, which helps explain why the assessments arrived at different outcomes.
29. In accord with the statutory guidance the AMHP contacted Ms B to tell her of the outcome of Mr C’s assessment. I note they also advised her of action to take if Mr C’s illness worsened and he did not seek help. But they did not record telling Ms B of her right to seek detention, as nearest relative. While an application from a relative stands less chance of success than one made by an AMHP this is still an important element of the law giving rights to the nearest relative. Ms B may have had awareness from Mr C’s earlier contacts with mental health services of her rights, but the AMHP could not be sure of that. The failure to tell Ms B of this right was therefore a fault.
30. However, I find no injustice resulted. This is after noting Ms B later received information on her rights but did not act on that.
31. Turning to the involvement of the AMHP service in August 2018 I note that there were around 10 days between it learning of the need to assess Mr C again and his arrest following the further confrontation with Mr B. I note any further assessment relied on securing a warrant and police involvement. This added some reasonable and inevitable delay to the time taken to complete an assessment.
32. However, there was still a gap of around six days between the AMHP service receiving details of Mr C’s case and arranging for that warrant. I am concerned about this given the evident deterioration in Mr C’s health evidenced by Ms B’s contemporaneous emails to the community mental health trust. The Act and statutory guidance do not put a timescale on how long an AMHP has to arrange an assessment. But I assume a need for urgency when a patient presents signs of mental health crisis.
33. I have considered therefore if this delay of six days justifies a finding of fault. But I have decided it does not because the records disclosed show the community mental health team led in taking clinical decisions around Mr C’s health. The need for another AMHP assessment formed part of the clinical plan for Mr C if he would not accept voluntary intervention. I consider had the service considered, for clinical reasons, a greater urgency needed they would have recommended this to the AMHP service accordingly. Therefore, I do not find the AMHP service at fault for the urgency shown when it became involved in this case a second time.

Complaint handling

34. I consider the Council has been at fault for its complaint handling in this case. From July 2019 at the latest Ms B made the Council aware that she considered the AMHP service at fault for its assessment twelve months previously. It is also evident that Ms B linked perceived flaws in the assessment with several weeks of distress arising from Mr C’s behaviours that followed, including the further altercation with Mr B, that ultimately led to Mr C’s detention. It is a cornerstone of the Mental Health Act that detention can involve consideration of the patient’s potential to harm others, as well as themselves. Where the Council receives a complaint that alleges an AMHP assessment failed to recognise the potential harmful behaviour of a patient on others, it must be willing to scrutinise that assessment.
35. Yet before this investigation, I find no evidence of such scrutiny. I think as a matter of principle, the Council could reasonably defer to an earlier investigation by the Trust of the matters Ms B complained about. But there was no evidence the Trust had carried out such an investigation. Its sole correspondence in October 2019 failed to consider its July 2018 assessment referring to an investigation of earlier events. And it wrongly implied it could not consider a complaint about the impact of an AMHP assessment on Ms B because of confidentiality concerns around Mr C’s health records. It was not necessary to disclose details of Mr C’s health records to consider the impact his behaviour had on Ms B and what account the AMHP took of her, in carrying out their assessment.
36. Therefore, the Council failed to ensure an investigation of Ms B’s complaint. This caused injustice as the failure put Ms B to unnecessary time and trouble in re-stating her complaint and chasing responses.

Agreed action

37. The Council accepts these findings, which I welcome. To remedy the injustice identified at paragraph 36 it has agreed to apologise to Ms B and pay a financial remedy of £100 in recognition of her time and trouble. It will do this within 20 working days of a decision on this complaint.
38. Finally, I note the Council considers the events of this complaint a ‘one-off’. I am assured its social care staff know of the Council’s responsibility to investigate complaints about the AMHP service. I am further assured the Council liaises with the Trust and so should become aware of any complaints the Trust receives direct about the AMHP service. In these cases, the onus is on the Trust to make the Council aware so that it can record and monitor responses to such complaints and signpost them properly to this service. The Council has not fully explained why all three of these processes failed to function effectively on this occasion. But I have chosen to give it the benefit of the doubt and decided not to recommend a procedural review, trusting it has learnt the appropriate lessons. Although we have noted our records should we receive further complaints about its AMHP service.

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Final decision

39. For reasons set out above I uphold this complaint finding fault by the Council in its complaint handling, causing injustice to Ms B. The Council has agreed action to remedy the injustice. So, I can complete my investigation satisfied with its response.

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Investigator's decision on behalf of the Ombudsman