Summary: Mr X complained the Council failed to attend his son’s Mental Health Tribunals or prepare a report for them. The Council was at fault. This caused unnecessary distress to Mr X and his son. The Council will make a payment and remind staff they must attend Tribunal hearings where requested and prepare reports according to the guidance.

The complaint

1. Mr X complained the Council failed to attend his son’s Mental Health Tribunals or produce a report necessary for them.
2. Mr X said this meant the Tribunal was adjourned three times which delayed his son’s discharge from hospital. He said this was extremely distressing for them and meant he had to continue going to the time and expense of travelling to visit his son in hospital.

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The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)
5. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
6. Mr X complained about the Council's actions in late 2018. I have exercised discretion to investigate Mr X’s complaint because he was directed to another ombudsman before coming to us.

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How I considered this complaint

7. I have considered:
• all the information Mr X provided and discussed the complaint with him;
• the Council’s comments about the complaint and the supporting documents it provided; and
• the relevant law and guidance and the Ombudsman's guidance on remedies.
8. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

9. The Mental Health Act 1983 sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes. A person can be detained under section 3 of the Act for treatment and can be kept in hospital for up to six months.
10. The Mental Health Tribunal (Tribunal) is a panel which considers decisions to detain someone under the Mental Health Act. It can make judgements on a person’s discharge and treatment plan.
11. In 2013, the courts issued the ‘Practice Direction’. It sets out the process for Mental Health Tribunals including that councils must produce a ‘Social Circumstances report’. The report should set out the support available for the detained person in the community and give an opinion on whether the support is sufficient to meet their needs.
12. There are 24 sections which must all be included in the report. It is not sufficient for parts of the report to be left blank if not applicable. The report must be sent to the Tribunal as soon as possible and no later than three weeks after the request for the report was received. The reports are typically produced by a council social worker or a psychiatric nurse.
13. If the report is produced by a social worker, it is standard practice for them, or another council representative with knowledge of the detained person, to attend the Tribunal hearing.

What happened

14. Mr X’s son, Mr Y, was detained under the Mental Health Act for treatment. A Tribunal hearing was arranged for mid-November 2018 to consider Mr Y’s discharge and care. The hearing was adjourned because the Tribunal did not feel it could make an informed choice about Mr Y’s case. In part, this was because the Council social worker assigned to Mr Y’s case had not submitted a Social Circumstances report. The Council had also failed to send a representative to the hearing. The judge directed the Council to complete the report and ensure it included Mr X’s views in detail. The judge also required the author of the report attend the re-arranged hearing.
15. In late November, the social worker sent their Social Circumstances report. The second hearing was held in early December and adjourned because the report was mostly blank. It was missing key information including what care plan arrangements were in place, what aftercare Mr Y might receive or what Mr X’s views were. The judge said the report was ‘wholly unacceptable’ and directed the Council to produce a satisfactory one within 7 days. The judge also required the social worker to attend the next tribunal.
16. Tribunal records state the Council arranged for two representatives to call into the hearing, but they did not attend. The Council disputes this and says a manager was ready to join the hearing by telephone but before they could, they were told it was adjourned.
17. The social worker responsible for Mr Y’s case left the Council in early December. The Council did not appoint another social worker until after the third hearing.
18. A third hearing was held in mid-December. It was adjourned because the Social Circumstances report was still incomplete. The Council did not send anyone to attend the hearing. The judge again directed the Council to send a completed Social Circumstances report or justify its failure to do so and to attend the next hearing.
19. Following the hearing, Mr Y’s new social worker sought external advice on how to improve the report as they felt it was sufficient.
20. In late December, Mr X asked the hospital to discharge Mr Y. He did not want to wait for another Tribunal hearing. The hospital did not feel Mr Y could be sent home immediately but agreed to do it gradually. Mr Y was fully discharged in early January 2019.
21. In response to my enquiries, the Council said it reminded the second social worker to check reports submitted for Tribunal hearings would be sufficient. It also reminded the social worker they should mark sections with ‘not applicable’ instead of leaving them blank.

Findings

22. The Council failed to provide an acceptable Social Circumstances report in time for the three Tribunal hearings. This meant they had to be adjourned and was fault. The Council was also at fault for failing to attend the mid-November and mid-December hearings. I cannot make a judgement on whether a representative was ready to attend the early-December hearing. However, I do not consider the failure of the Council to attend two of the hearings caused Mr X or Mr Y further injustice as the hearings were already adjourned due to issues with the report.
23. Mr X feels the adjournments delayed Mr Y’s discharge from hospital. The hospital gradually discharged Mr Y starting in late December, but I cannot say that if the hearings had not been adjourned, the Tribunal would have discharged him earlier. The delay did, however, cause Mr X and Mr Y significant frustration and uncertainty about what the Tribunal may have decided.
24. While I welcome the action the Council took in response to Mr X’s complaint, I am not satisfied it is sufficient to prevent the faults I have identified from occurring again. I am concerned both social workers failed to identify the issues in the Social Circumstances report and that the Council failed to send a representative to two of the hearings or justify their absence. For those reasons, I feel further recommendations are warranted.

Agreed action

25. Within one month of the date of my final decision, the Council will pay Mr X £150 and Mr Y £300 in recognition of the distress the fault caused.
26. Within three months of the date of my final decision, the Council will remind relevant staff:
• they must prepare Social Circumstances reports in accordance with the Practice Direction and any instructions from a Tribunal judge; and
• they must attend hearings when directed to do so by a judge or justify their absence to the Tribunal.

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Final decision

27. I have completed my investigation. I have found fault leading to personal injustice. I have recommended action to remedy that injustice and prevent reoccurrence of this fault.

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Investigator's decision on behalf of the Ombudsman