Summary: We will not investigate this complaint about the decision to detain a patient under the Mental Health Act, because of concerns they were refusing treatment for their physical health. This is because there was a right to appeal the assessment outcome through a tribunal and it would have been reasonable to use this.

The complaint

1. Miss X complains about a Mental Health Act (MHA) assessment in December 2022. In particular she complains that during the MHA assessment the assessing doctors and Approved Mental Health Professional (AMHP) agreed to detain her under section 2 of the MHA to enable treatment of her physical health. In doing so she says they:
• did not complete a proper assessment of her mental capacity;
• did not ask her why she was declining treatment or what treatment she was willing to accept; and
• did not ask her if she was aware of the risks of declining treatment.
2. Miss X also complains the AMHP told her there was no evidence to detain her for mental health treatment, but agreed to the detention because Miss X raised concerns about who would carry out observations.
3. Miss X says the failings have caused her distress and affected her mental health. She is afraid of being deprived of her freedom again. Miss X says the effect of the decisions to detain her have undone years of therapy and she is now afraid to seek support for her mental health. She wants acknowledgement of the failings and apologies for the way the assessing staff treated her.

Back to top

The Ombudsmen’s role and powers

4. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
5. The law says we cannot normally investigate a complaint when someone can appeal to a tribunal. However, we may decide to investigate if we consider it would be unreasonable to expect the person to appeal. (Local Government Act 1974, section 26(6)(a), as amended and Health Service Commissioners Act 1993, section 4(1)(a))
6. It is our decision whether to start, and when to end an investigation into something the law allows us to investigate. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended and Health Service Commissioners Act 1993, section 3(2))

Back to top

How I considered this complaint

7. I have considered written information provided by Miss X, London Borough of Hackney (the Council) and East London NHS Foundation Trust (the Trust). The complainant and organisations had the opportunity to comment on my draft decision statement.

Back to top

What I found

Relevant legislation and guidance

Mental Health Act 1983

8. Under the Mental Health Act 1983, when someone has a mental disorder and is putting their safety or someone else’s at risk they can be detained in hospital against their wishes. This is sometimes known as ‘being sectioned’.
9. Usually three professionals need to agree that the person needs to be detained in hospital. These are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has approved in Mental Health Act detentions and another doctor.
10. In this complaint, one of the assessing doctors worked for the Trust. The other assessing doctor was an independent doctor. The Council is responsible for the AHMP’s actions.
11. Admission under the MHA should be in the best interests of the person and they should not be detained if a less restrictive alternative is available.
12. Section 2 of the Mental Health Act 1983 is for assessment of a patient’s mental health and to provide any treatment they might need. Patients can be detained under section 2 for up to 28 days.
13. The MHA is accompanied by the Mental Health Act Code of Practice (the Code of Practice). This provides guidance for health and social care staff on how to use the MHA in practice.
14. Section 13.39 of the Code of Practice says cannot be deprived of their liberty for physical treatment only. This is not within the scope of the Mental Health Act as the purpose of the deprivation of liberty is not to treat mental disorder. In such circumstances a Depravation of Liberty authorisation or a Court of Protection order should be sought.
15. A person detained under the Mental Health Act 1983 has a right to appeal that decision to a Mental Health Review Tribunal.

Background

16. Miss X was in hospital receiving treatment for physical health problems. While she was in hospital the medical staff were worried about Miss X declining treatment and raised the possibility of her deliberately interfering with medical equipment, causing harm to herself.
17. Medical staff became concerned that Miss X’s health was deteriorating and felt her mental health was affecting her choices. The hospital arranged a psychiatric review and later for an assessment under the MHA. The assessing doctors and the AMHP recommended hospital admission for Miss X under section 2 of the MHA, although in effect, this was in the same hospital.
18. Miss X later complained her detention under the MHA was to force treatment for her physical health needs, and that she did not receive treatment for her mental health.
19. Miss X had the right to appeal her detention to a Mental Health Review Tribunal. This would have considered the reasons for her detention and whether the assessing team appropriately considered her views before deciding to recommend detention. We cannot retrospectively take on the same role as the appeal tribunal and cannot order mental health records to be altered or deleted. Because of this, even though it was not used by Miss X, the appeal process offered a better way of resolving her key concern.

Back to top

Final decision

20. I consider it would have been reasonable for Miss X to have used her right of appeal at the time. As such, we will not investigate this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman