Summary: We will not investigate this complaint about a confidential clinical conversation being held in a public place. This is because it is unlikely an investigation would add to the response Miss A has already received.

The complaint

1. Miss A’s complaint relates to staff acting on behalf of Westmorland and Furness Council (the Council; previously Cumbria County Council) and Lancashire & South Cumbria NHS Foundation Trust (the Trust). Several professionals went to the home of Miss A and her son, Mr B, in late 2021. They went to assess Mr B under the Mental Health Act 1983 (the MHA).
2. Miss A complains that the professionals openly discussed Mr B’s mental health history while on the street outside the house. Miss A said that she could hear the content of the conversation from several metres away and said anyone else nearby would also have been able to hear.
3. Miss A complains this was a breach of Mr B’s right to confidentiality and impacted his dignity. Miss A said this incident made her very angry.
4. In bringing the complaint to the Ombudsmen Miss A said she would like services to acknowledge their failings and the impact of them. She would like the services to apologise and to make service improvements to help prevent recurrences.

Back to top

The Ombudsmen’s role and powers

5. The Ombudsmen provide a free service but must use public money carefully. They may decide not to start or continue with an investigation if they believe:

• it is unlikely they would find fault, or
• it is unlikely they could add to any previous investigation by the bodies.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

Back to top

How I considered this complaint

6. I read the information Miss A sent to the Ombudsmen and spoke to her on the telephone. I read the papers the Council and the Trust sent in response to our initial enquiries. I considered the Local Government and Social Care Ombudsman's (LGSCO’s) Assessment Code.
7. I shared a confidential copy of this draft decision with Miss A and invited her comments on it.

Back to top

What I found

8. In late November 2021 an Approved Mental Health Practitioner (AMHP), two doctors and a mental health liaison nurse went to Mr B’s home to assess him under the MHA.
9. Miss A first complained to the Trust in January 2023. After getting an initial response she sent a follow-up complaint in March 2023. In this she complained that the Trust had completely overlooked one of her initial complaints. Namely, that when the four professionals came to see Mr B in November 2021 they breached his right to confidentiality. Miss A said the professionals “had a clinical discussion, prior to [the MHA assessment] in the street outside a neighbour’s house, heard by myself and anyone else in the nearby area”.
10. In the Trust’s response it apologised that this happened and that it had caused Miss A distress. The Trust acknowledged that patient confidentiality should always be preserved. The Trust said it had highlighted this incident to the staff who were involved. It said it had reminded those members of staff of the need to make sure they uphold the patient’s confidentiality at all times.

Analysis

11. I do not have a recording or an independent account of what the professionals said while in a public place, or how audibly they spoke. I have Miss A’s description of what happened. I have also taken account of the Trust’s complaint response which did not dispute her account.
12. On balance, it is unlikely that any of the professionals would have made contemporaneous records of a conversation they had about Mr B’s history before they entered the property. It is more likely that their records were limited to the MHA assessment itself.
13. Two years have passed since these events. As such, it is unlikely the relevant professionals would still have clear, reliable memories of these events. Therefore, it is unlikely that an investigation would be able to produce a clear, evidence‑based account of what information was shared in an inappropriate way.
14. Looking for evidence of fault is the first step of our process. The next stage is to consider what impact that fault had on her person who is complaining (or the person they are complaining on behalf of).
15. As with the content of the conversation itself, we do not know if anyone overheard what the professionals said and, if so, what they heard. The Ombudsmen must use their resources proportionately and, because of this, there is no realistic way of establishing what neighbours or passers-by may have heard, two years later.
16. We cannot discount the possibility that other people did hear the conversation. Because of this, there is uncertainty about whether other people may know things about Mr B which he wanted to be private. I cannot see how an investigation would be able to provide any more clarity to this issue.
17. Miss A explained that this event made her very upset. The Trust has acknowledged that Mr B’s confidentiality was not maintained. It also apologised that it caused her distress. In addition, the Trust said it would feedback to the relevant staff in an effort to learn from the complaint and to help prevent recurrences.
18. In view of the nature of the independent evidence about what happened and its impact, I do not consider investigation is likely to establish any further information or achieve a different outcome.

Back to top

Decision

19. The Ombudsmen will not investigate this complaint because it is unlikely to achieve anything more than the remedy the Trust has already provided.

Investigator’s decision on behalf of the Ombudsmen

Back to top

Investigator's decision on behalf of the Ombudsman