Summary: We will not investigate this complaint about how a section 135 warrant was used to gain entry to a property. It is unlikely we would find fault by the Council or the NHS Trust. They have also already addressed specific issues about access arrangements and we are unlikely to achieve more by investigating.

The complaint

1. Mrs X complains on behalf of her daughter, Miss Y about Somerset Council (the Council) and Somerset NHS Foundation Trust (the Trust). She complains the Council and the Trust:
• decided to use section 135 of the Mental Health Act (MHA) to enter Miss Y’s property
• did not try to contact Mrs X to access the property
• changed the locks and left a telephone number for Miss Y to access a key, but because of previous issues, Miss Y was afraid to call. She did not return home for 5 days.
2. Mrs X says the failings by the Council and the Trust put Miss Y in danger.

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The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. 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, or
• they cannot achieve the outcome someone wants.

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

5. The Ombudsmen cannot question whether an organisation’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. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))

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How I considered this complaint

6. I have considered information provided by Mrs X, the Council and the Trust. I have considered the Ombudsman’s assessment code. I have also considered relevant law and guidance.

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What I found

7. In April 2023 concerns about Miss Y’s safety were raised with the Council by her neighbours and the Home Treatment Team (community based mental health care). The Home Treatment Team tried to visit Miss Y, but did not manage to speak with her. The Council arranged a mental health assessment through its Approved Mental Health Practitioner (AMHP) service.
8. As the HTT had not been able to contact Miss Y and there had been issues accessing the property, the AMHP considered it may be necessary to force entry to assess her safely. The AMHP therefore applied for a section 135 warrant. This allows the police (accompanied by an AMHP and registered doctor) to enter a property for the purposes of assessing a person’s mental health. Section 135 warrants are issued by the Courts. The Ombudsmen cannot consider the decision to issue the warrant only whether the application was properly considered.
9. The AMHP appears to have taken account of the situation and previous issues with contacting Miss Y and accessing her home. They made a decision to apply for a warrant after consideration of this information. The AHMP would have set out their rationale when applying for a section 135 warrant. The Courts considered the application and agreed to issue the warrant. It is therefore unlikely we would find fault with the AMHP’s decision.
10. The AMHP, medical professionals and police then attended Miss Y’s property to carry out a MHA assessment. They did not get a response and therefore forced entry into Miss Y’s home. However she was not at home. The AMHP and the police arranged to change the locks and installed a key safe. They left a message with contact details so Miss Y could access the key safe and enter her property.
11. It appears Miss Y later returned to her property and found the note, but Mrs X explained that due to previous experience, Miss Y was worried and did not call the number. Miss Y was missing for 5 days.
12. The Council’s complaint response explained it would normally expect a AMHP to contact the family to check is there was a spare key. However, it said the AMHP was advised there had been some pressures on the relationship between Miss Y and Mrs X. It said the AMHP considered this and decided not to contact Mrs X as they did not want to damage the relationship further by asking her to provide access to Miss Y’s property.
13. This shows the AMHP considered the information and based their decision on what they considered was in Miss Y’s and Mrs X’s best interests. Given the AMHP considered relevant information it is unlikely we would find fault even if this was a departure from what the Council considers to be normal practice.
14. However, the Council has acknowledged the seriousness of this issue to Miss Y and Mrs X. It has explained that because of the complaint, AMHPs will now always check with family members if they have access to a property. It said AMHPs will also allow the family member to decide if they wish to participate in this or not, depending on the family dynamics. The Trust also said it would work with Miss Y to develop an escalation plan. This means access arrangements can be documented if future intervention is needed from mental health services. I consider we are unlikely to achieve more by investigating.
15. With regards to how the property was left after the assessing team discovered Miss Y was not at home, it seems reasonable measures were taken to secure the property. No one knew where Miss Y was and the health and social care professionals had been unable to contact her. It would not be reasonable to expect the AMHP, mental health professionals or police to wait for Miss Y to return as there was no indication when this may be. I consider we are unlikely to find fault with the decision to leave instructions for access and to then contact family. I can appreciate this must have been distressing for Miss Y and Mrs X, but I do not consider we are likely to find this was due to fault by the Council or the Trust.

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Final decision

16. The Ombudsmen will not investigate this complaint. We are unlikely to find fault with how the Council and the Trust used a section 135 warrant when it attempted to carry out a MHA assessment. The Council and the Trust also agreed actions that should ensure arrangements for Miss Y are in place to prevent a similar situation, if a MHA assessment is needed in future. It is therefore unlikely we can achieve more by investigating.

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Investigator's decision on behalf of the Ombudsman