Summary: The Ombudsmen will not investigate this complaint about the circumstances surrounding the detention of the complainant under the Mental Health Act. This is because some of the matters the complainant raises do not fall under the Ombudsmen’s jurisdiction. The complainant’s other concerns relate to care provided more than 12 months ago. These matters are late for the Ombudsmen’s consideration.

The complaint

1. The complainant, who I will call Miss X, is complaining about the circumstances leading to her detention under Section 2 of the Mental Health Act 1983 (the MHA). Miss X complains that:

• Clinicians from Pennine Care NHS Foundation Trust (the Trust) detained her under the MHA when she attended a routine outpatient appointment.
• An Advanced Mental Health Practitioner (AMHP) employed by Rochdale Metropolitan Borough Council (the Council) based his assessment on false information.
• A GP from the Trinity Medical Centre (the Practice) failed to disclose important information about Miss X’s clinical history to the AMHP as part of the assessment process.

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The Ombudsmen’s role and powers

2. 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).
3. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

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How I considered this complaint

4. In making this final decision, I considered information provided by Miss X and discussed the complaint with her. I also took account of relevant legislation and guidance.
5. I also invited Miss X’s comments on my draft decision statement and considered the further information she provided.

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What I found

6. The MHA sets out that, in order for a person to be detained under Section 2 of the MHA:

• “the person must be suffering from a mental disorder of a nature or degree which warrants their detention in hospital for assessment (or for assessment followed by treatment) for at least a limited period, and
• the person ought to be so detained in the interests of their own health or safety or with a view to the protection of others.”

7. The MHA requires that an application for detention must be made either by a designated AMHP or the patient’s nearest relative.
8. An application for detention must be supported by recommendations from two medical professionals (known as ‘Approved Clinicians’). Approved Clinicians have powers given to them directly by the Department of Health to make decisions under the MHA.
9. The Ombudsmen are unable to consider a complaint about recommendations made by an Approved Clinician as part of the sectioning process. This is because Approved Clinicians are considered to be acting as individuals and not on behalf of the NHS. As a result, their actions do not fall under the jurisdiction of the Parliamentary and Health Service Ombudsman.
10. An AMHP is considered to be acting on behalf of the local authority (in this case the Council). This means complaints about an AMHP’s actions do fall under the jurisdiction of the Local Government and Social Care Ombudsman.
11. However, Miss X is complaining about actions taken by the AMHP in July 2017, over two years ago. These matters are late for the Ombudsmen’s consideration, therefore.
12. This is a significant delay and has an impact on the Ombudsmen’s ability to investigate properly. This is because the passage of time can affect the recollections of staff involved in the care being complained about and mean that important records are no longer available.
13. Miss X told me she was unable to complain to the Ombudsmen initially as she did not become aware of her complaint in its entirety until she received a response to her Subject Access Request (SAR).
14. I accept this would have delayed Miss X’s complaint to an extent. Nevertheless, I understand Miss X received a response to her SAR in (or around) March 2018. Despite this, Miss X did not complain about these matters to the Council until September 2018, almost six months later. She subsequently complained to the Ombudsmen in June 2019.
15. The Ombudsmen’s records show Miss X has pursued several complaints with them since 2017 and was aware of their roles and functions. In my view, there was nothing to prevent Miss X approaching the Ombudsmen with her complaint about the AMHP sooner than she did. While I appreciate Miss X’s strength of feeling about her complaint, I can see no good reason to investigate it at this late stage.
16. Miss X is also complaining about the actions of a GP involved in the sectioning process.
17. These aspects of the complaint similarly relate to care provided to Miss X in July 2017. The Ombudsmen’s records show Miss X first approached them with a complaint about the Practice in May 2018. The Ombudsmen declined to look at the complaint at that stage as Miss X had not completed the Practice’s complaints process. It is unclear whether she later did so.
18. In any case, Miss X did not approach the Ombudsmen again with this aspect of her complaint until June 2019. By that point, almost two years had passed since the events complained about took place. This aspect of the complaint is also late, therefore.
19. In my view, there was nothing to prevent Miss X bringing these matters to the attention of the Ombudsmen more promptly than she did. For this reason, the Ombudsmen will not investigate Miss X’s complaint.

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Final decision

20. The Ombudsmen will not investigate Miss X’s complaint. This is because some of the matters she is complaining fall outside the jurisdiction of the Ombudsmen. The other aspects of the complaint relate to care provided to Miss X more than 12 months ago. These parts of the complaint are late and I have seen no good reason to investigate these matters now.
21. I have now closed the case on this basis.

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Investigator's decision on behalf of the Ombudsman