Southern Health NHS Foundation Trust (18 014 182a)

Category : Health > Mental health services

Decision : Upheld

Decision date : 11 Mar 2020

The Ombudsman's final decision:

Summary: The Ombudsmen found no fault by a Council relating to its role in a mental health assessment. The Ombudsmen found a Trust was at fault with its communication with a patient detained under the Mental Health Act about their illness and medication. There was also fault by the Trust in relation to accessing an advocate. The Ombudsmen recommended the Trust apologises for the distress caused by the identified faults and to create an action plan to address the faults.

The complaint

  1. Mrs P complains on behalf of her son, Mr D. She complains that staff from Hampshire County Council (the Council) and Southern Health NHS Foundation Trust (the Trust) failed to follow the proper procedures and the guiding principles of the Code of Practice when deciding that Mr D should be detained under section 3 of the Mental Health Act 1983.
  2. Mrs P said the Council and the Trust:
      1. Failed to ensure there was proper consultation with Mr D’s nearest relative
      2. Failed to take account of Mr D’s views and wishes and those of his parents
      3. Failed to take into account that Mr D felt threatened by another patient
      4. Failed to properly explain Mr D’s illness and medication to him
      5. Failed to provide Mr D with access to advocacy
  3. Mrs P said without these failings, Mr D would not have been detained under section 3 of the Mental Health Act 1983. This has affected his opportunities for overseas travel and future employment.
  4. Mrs P seeks service improvements to ensure others are not similarly affected, and for Mr D’s records to be amended so that they no longer say he was detained under section 3.

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The Ombudsmen’s role and powers

  1. 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)). If it has, they may suggest a remedy. Recommendations might include asking the organisation to apologise or to pay a financial remedy, for example, for inconvenience or worry caused.  We might also recommend the organisation takes action to stop the same mistakes happening again.
  2. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting for both Ombudsmen. (Local Government Act 1974, section 33ZA, and Health Service Commissioners Act 1993, section 18ZA)
  3. 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. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
  4. If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement. (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

  1. I took account of the information Mrs P provided to the Ombudsmen. I made enquiries of the Council and the Trust, and took account of the documents and comments they provided, including relevant medical and care records for Mr D. I also considered relevant legislation and guidance.

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What I found

Legal and administrative context

  1. Under the Mental Health Act 1983 (the MHA), 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’. 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 been specially approved in Mental Health Act detentions and another doctor.
  2. Under section 2 of the MHA, a person can be detained in hospital for up to 28 days for assessment when they have a mental disorder warranting this and they need to be detained for their own safety or that of others.
  3. Under section 3 of the MHA, a person can be detained in hospital for treatment when they have a mental disorder warranting this, they need to be detained for their own safety or that of others, and appropriate medical treatment is available for them. Detentions last for up to six months and can be renewed. Before applying to detain someone under section 3, the AMHP must where possible consult with the person’s nearest relative. If the nearest relative objects, they can block the application.
  4. People can be discharged from detention in hospital by their responsible clinician, by the hospital managers, or by their nearest relative. Nearest relatives must give the hospital 72 hours notice before discharging the person. The responsible clinician can prevent the discharge if they consider the person would probably endanger themselves or others if they were discharged.
  5. Applications to detain a person under the MHA are made to the managers of the hospital. Hospital managers must check the application has been properly made, but they do not consider the merits of the application. However, the detention will stop being lawful if the hospital managers become aware that the application contains incorrect facts.

Code of Practice

  1. Section 118 of the MHA provides for the Code of Practice (the Code), which is statutory guidance for professionals working under the MHA.

Independent Mental Health Advocates

  1. Independent mental health advocates (IMHAs) provide an extra safeguard for patients who are subject to the Mental Health Act. They support patients to exercise their rights and ensure they can take part in the decisions made about their care and treatment.
  2. The Code says hospital managers must ensure patients are told that help is available from an IMHA and how to get that help. They should provide information about IMHAs as soon as practicable after the patient becomes liable to be detained. This information should be given both orally and in writing. Written information should, where practicable, be given to the nearest relative unless the patient requests otherwise.
  3. Patients detained or liable to be detained under the Mental Health Act may seek the support of an IMHA at any time after they become eligible for support.

Role of the AMHP

  1. Local social services authorities control the AMHP function. This must provide 24‑hour cover for hospital admissions and treatment. AMHPs decide whether to apply for a person to be detained in hospital. Before making this decision, they must interview the person, consider the views of the nearest relative and they must be satisfied that detention in hospital is the best way for the person to get the care the person needs. AMHPs exercise their powers personally and may not be directed by their employer.
  2. AMHPs may not apply to detain someone in hospital for treatment if the nearest relative has told them they object to the application, or if the AMHP has not consulted the nearest relative when they should have.

Nearest relative

  1. For the purpose of the MHA, a person can have one nearest relative and in Mr D’s case this was his father, as the elder of his parents.
  2. If the nearest relative is unwilling or unsuitable to act as such, a relative or an AMHP can apply to the courts to have the nearest relative displaced. The courts can displace the nearest relative in certain circumstances. This includes when a nearest relative unreasonably refuses to agree to a person being detained in hospital or unreasonably uses their power to discharge a person who is detained.

Mental capacity

  1. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. The MCA starts by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity

The Council’s guidance for AMHPs

  1. The guidance says assessments “should be produced in a collaborative way, gathering information, including any relevant key people important to that person”. It should “record detailed outcomes and specific achievable actions”. Practitioners must show they have “considered the person’s community strengths and family support”, and make sure “everyone who is important to the person contributes to the assessment”. They must give their “professional opinion with a clear rationale on your decision making”. If they amend their report in the days after it is made, they must send a copy to the original recipients. The assessments should include recent events, current risks, and “what has been tried for alternatives to admission”.
  2. With regard to the consultation with the nearest relatives, the assessment should include their views, whether they want an assessment or admission, a clear statement about discussion about the nearest relatives rights and a clear statement on any objection.
  3. With regard to mental capacity, the AMHP should include evidence of their findings, including how they have come to their conclusion. For the overall decision, they should include the key factors in making the decision. They should record whether any possible alternatives to hospital are available.

Background

  1. On 2 January 2018 Mr D was detained under section 2 of the MHA. He had no previous contact with mental health services. The Trust’s records say he was “perplexed”, with low mood, unable to make decisions, delusional, and guarded. He had poor insight into his need for mental health services. He smashed a window in A&E due to fear the hospital would give him a lethal injection and was detained due to the risk he would leave.
  2. On 3 January Mr D transferred to a psychiatric intensive care ward in another hospital. The following morning he became agitated and threw furniture around. The hospital placed him in seclusion.
  3. On 19 January Mr D transferred to the Trust’s hospital. The doctors planned to gradually reduce his sedative medication.
  4. A multi-disciplinary review meeting on 22 January noted Mr D said he could still hear voices, but they were less frequent. He still held delusional beliefs but said he felt safe in hospital. Staff had not seen any sign he was a risk to himself or others since his transfer and he had not tried to escape. He still needed prompts to eat and drink and to address his self-care. It was difficult to assess his insight into his illness, his cognition and his capacity to consent to treatment because of sedation. Doctors planned to continue reducing his sedative medication. They noted they needed to meaningfully engage with him to assess his response to antipsychotic medication and discuss switching it to another type.
  5. On 23 January Mr D still seemed paranoid. A nurse recorded that his risks were risk of falls due to over sedation, plus risks of self-neglect and poor self-care. They could not discuss his care plans with him due to over sedation.
  6. The following days staff noted Mr D’s mental state continued to improve but he continued to express paranoid delusions and lacked insight into his mental state. He lacked capacity to consent to treatment as he could not explain why he took it. The doctor planned to gradually change his antipsychotic medication to a different type, and to arrange a MHA assessment for 29 January.
  7. On 28 January, a nurse spent time with Mr D. The records note the nurse explained that his section 2 would end the next day and that he would be assessed then and either be detained on a section 3 or be “made informal” (stay in hospital voluntarily). Mr D said he would agree to stay in hospital until a doctor thought it was the right time to discharge him. He said he would like to stay a little longer because “something still doesn’t feel right”. The nurse wrote that Mr D could retain that information and seemed to have the capacity to understand that he may be detained under section 3 or made informal. The nurse recorded that Mr D understood his section and his rights and would be happy to stay in hospital informally.
  8. Later that day, Mr D told staff he felt anxious and was concerned the voices he had experienced were returning.
  9. There was a multi-disciplinary meeting in the morning of 29 January. The nurses reported that Mr D was afraid the voices he had heard would return, he was anxious about how other patients perceived him and anxious about harm to his family. He had needed to change rooms “due to him believing that there was a man in the other bed space”. However, he had improved every day that week and was less sedated.
  10. A psychologist noted that Mr D now realised he was unwell and said he felt okay but was still anxious and threatened by other patients. The psychologist explained the process of the MHA assessment to Mr D who said he wanted to stay in hospital to continue his treatment. He was “…agreeable to remaining informally, however did express a wish to return to his parents’ home to finish the treatment”.
  11. The consultant psychiatrist noted that Mr D expressed paranoid thoughts about being watched when on the communal area of the ward. He felt threatened when in the presence of another specific patient. He was still thought disordered. He had auditory hallucinations giving a running commentary on his actions but would dismiss them as his thoughts. He still felt unsafe occasionally but was “unable to articulate further on this”.
  12. The consultant recorded that Mr D had the capacity to make decisions about his treatment and did not object to treatment. They discussed informal admission and the consultant wrote: “…initially [Mr D] agreed with this and plan to remain for several weeks in hospital but then mentioned that he wanted to return home”.
  13. The consultant then spoke with Mr D’s parents and explained that Mr D needed to have a MHA assessment that day to decide whether Mr D would stay in hospital under section 3 or informally. Mr D’s parents “did not strongly express views towards either, but highlighted that they would prefer him to remain” in hospital. The consultant noted they would continue to gradually change Mr D’s antipsychotic medication.
  14. The multidisciplinary team summarised the risks relating to Mr D. They noted they had seen no risk that Mr D was at risk of harming himself. He was aggressive to staff at the previous hospital but had not “presented as a risk to others” in the current hospital. He was managing his personal care independently. He had not tried to escape. He was vulnerable “due to current presentation”.
  15. The AMHP telephoned Mr P, as Mr D’s nearest relative later that morning. The AMHP’s record of the phone call says: “Telephone call to [Mr P]: [Mr P] stated that he has been at a meeting with [Mr D] with [the consultant] this morning and reports that [Mr D] is making good progress and improved significantly. [Mr P] stated that [Mr D] appears to have good insight that he needs to remain in hospital and continue with medication. [Mr P] stated that they would [Mr D] (sic) to remain [in hospital] as they believe that he has received excellent care and support and would not want this to change and hamper his recovery. [Mr P] states that he has no objections to [Mr D] remaining in hospital.”
  16. The Council’s version of the form contains the following at the end: “[Mr P] states that he has no objection to [Mr D] remaining in hospital if this is either informal or under section as they want what is best for their son”. The Trust’s version of the form does not contain this final sentence.
  17. The consultant, the AMHP and another doctor assessed Mr D at 1:00pm that day. The records note Mr D said he was settled on the ward but felt anxious and apprehensive. He said he felt unsafe and threatened in the communal areas of the ward and spent most of the time in his room. The consultant noted that Mr D would be at significant risk if he relapsed and may be vulnerable to relapse if he did not respond to the medication he was changing to.
  18. The AMHP noted Mr D seemed to be struggling to manage his thoughts and he seemed preoccupied at times. When asked, he said he would stay as an informal patient and take medication because he had been told to. He recognised that something was not right but did not further understand his mental illness or that it could be drug related. The consultant also recorded that Mr D had limited insight into his mental illness and he lacked capacity to consent to treatment or admission. He said he would follow medical advice but could not explain why he would accept the hospital admission.
  19. The AMHP and doctors agreed that Mr D should be detained under section 3 for further treatment.
  20. The AMHP telephoned Mr P with the outcome of the assessment at 3:00pm. Mr P said he felt Mr D could have stayed in hospital as an informal patient. The AMHP said Mr D did not have enough awareness of his diagnosis and treatment to consent to informal admission. Mr P asked whether the decision could be changed. The AMHP said it could not, and the purpose of her phone call that morning was to check that he did not object to the application. The AMHP also spoke with Mrs P and told her that as the section 2 expired that night she could not assess Mr D at a later date.
  21. The Trust’s MHA administrator recorded they checked the statutory sectioning papers on 29 January and was satisfied that they were completed correctly.
  22. Later that day, Mr D became upset about what being under a section might mean for his future. A nurse explained the nature of section 3 and its implications to him. The nurse gave him an information leaflet and explained his right to apply to a tribunal or the hospital managers to challenge the detention. The nurse recorded Mr D did not want to appeal his section at that time and that Mr D did not want a copy of all the relevant information sent to his nearest relative. They referred him to an Independent Mental Health Advocate (IMHA).
  23. On 2 February, a doctor checked the medical recommendations for detaining Mr D and found that they were satisfied that the reasons entered into the recommendations supported the decision to treat Mr D in hospital and that they were satisfied with the reasons why the MHA was used.
  24. Mr D remained at the hospital until 13 February. The records show by then he was less anxious, calm and coherent. The records note he also had insight and capacity. He was discharged from section 3 and the hospital.

Analysis

Nearest relative

  1. Mrs P complains there was not proper consultation with Mr D’s nearest relative before his MHA assessment on 29 January.
  2. The records show the AMHP contacted Mr P, as the nearest relative, on the morning of Mr D’s assessment. The AMHP’s statement notes her normal practice is to explain the reason for the call and the sectioning process. She also said she explains whether the nearest relative objects to detention under section 3 and explain their rights. Although the AMHP made the statement almost a year after the events, she considered there would be no reason for the call not to have followed this format. I consider this would be in line with the Code. However, Mr and Mrs P’s recollection of the call is different and the records do not fully support the AMHP’s statement.
  3. I consider the AMHP’s record adequately shows that the reason for the call and views about Mr D’s treatment were discussed. The record does not mention the AMHP discussing the nearest relative’s rights. Whether or not the AMHP discussed compulsory admission (under section 3 of the MHA) and the effects of this is unclear. The AMHP only added the note about Mr P agreeing to admission ‘either informal or under section’ after the AMHP and clinicians agreed to the section 3. This could cast doubt on the accuracy of the record and is not in line with the Council’s own guidance.
  4. During the AMHP’s follow-up call, Mr P questioned whether compulsory admission was needed and seemed surprised informal admission had not been agreed. The AMHP says she added to the record when checking the accuracy before sending it to the AMHP managers based on her handwritten notes of the discussion. These notes are unfortunately no longer available. Without any further evidence, I am unable to reach a conclusion about exactly what the AMHP discussed with Mr P.
  5. There is fault by the Council in the record keeping about the discussion with the nearest relative. The Council has already accepted some practice development issues and put a plan in place which includes addressing shortfalls in the AMHP’s recorded discussions with nearest relatives. I consider this to be a proportionate outcome to any injustice arising from the fault.

Mental Health Act Assessment

  1. Mrs P complains the Council and the Trust failed to take account of Mr D’s views and wishes and those of his parents. Mrs P also says staff failed to consider that Mr D felt threatened by another patient in the hospital.
  2. The Ombudsmen’s remit to consider the MHA assessment is limited. We can look at the actions of the AMHP and the hospital managers, but cannot scrutinise the clinical decisions or recommendations made by the medical practitioners.
  3. Under the guidance, the AMHP had to satisfy herself that Mr D needed to be detained for his own health or safety or to protect others. The AMHP was satisfied the statutory criteria for detention were met. This is a professional judgement, supported by the two accompanying doctors and I can find no evidence to question it. The assessment is a professional judgment based on the information available at the time.
  4. Mrs P complained that the AMHP did not consider less restrictive options for Mr D’s treatment. The AMHP and the doctors felt Mr D lacked capacity to make decisions about his treatment at the time of the assessment. This meant voluntary admission was no longer an option and the clinical view was that hospital admission was necessary to manage Mr D’s change in medication. I consider the AMHP considered other options as far as was possible, but given the concerns over mental capacity, her professional judgement was that admission under section 3 of the MHA was required. I find no fault in how the AMHP reached this decision.
  5. With regards to Mr D feeling threatened by another patient, the AMHP noted he had difficulties on the ward with other patients. The Council said the AMHP felt this was more that Mr D found the ward busy and overstimulating. The AMHP said Mr D did not report any specific concerns about feeling threatened by another patient during the assessment. The records from the two accompanying doctors support this view. They recorded that Mr D felt anxious and threatened in the communal areas of the ward and spent time in his room. There is no specific reference to Mr D reporting that he was receiving abuse from other patients. Based on the information available from Mr D and the assessing doctors, I do not find fault by the AMHP in her consideration of Mr D feeling threatened.
  6. In relation to the Trust’s role, the hospital managers must be satisfied that the application appears to be duly made and to be founded on the necessary medical recommendations. Their duty to review the application is therefore limited. They are not responsible for considering the appropriateness of the medical conclusions.
  7. The records show the hospital manager checked the statutory sectioning papers on 29 January and was satisfied they were completed correctly. On 2 February, a doctor checked the medical recommendations for detaining Mr D. They agreed the reasons entered into the recommendations supported the decision to treat Mr D in hospital and with the reasons for using the MHA. I cannot comment on the medical recommendations. However, I am satisfied the Trust fulfilled its duty to check the sectioning papers in reaching its decision to agree to Mr D’s hospital admission under section 3 of the MHA. I therefore find no fault by the Trust in this regard.

Communication with Mr D

  1. Mrs P complains the Trust failed to properly explain Mr D’s illness and medication to him when he was in hospital.
  2. The records show that after Mr D’s hospital admission under section 2 of the MHA. The records also note that staff spoke to Mr D and his family about the reasons for his admission and the medication plans during ward rounds and MDT meetings. The Trust recorded that Mr D lacked insight into his illness. It said he could not express why he was taking medication, but appeared to understand the need to take it and the plans when this was being changed. Mr D also spent time with staff discussing care planning and he signed all his care plans confirming his agreement.
  3. It is evident the Trust discussed Mr D’s medication and care planning with him and his family during his admission. However, there does not appear to be evidence the Trust specifically discussed Mr D’s diagnosis and the effects of this with him. There were times Mr D would have lacked capacity to understand this information in the early part of his admission, but it should have addressed this as Mr D’s mental health improved. This was fault and the Trust’s complaint response acknowledges this. The Trust said it would ensure its staff will record discussions to explain someone’s illness in records in future. This will help make sure any such conversations take place and that staff document these.
  4. I consider this is a proportionate outcome to address the systemic issues in this part of the complaint. However, I note the Trust’s complaint responses did not include apologies for not having these discussions with Mr D or his family. Therefore the injustice to Mr D and his family remains unresolved.

Advocacy

  1. Mrs P complains the Trust failed to provide Mr D with access to advocacy during his MHA assessment.
  2. Mr D was detained on 2 January 2018. The records do not indicate the Trust discussed information about an IMHA with Mr D as required under the Code. The Trust requested an IMHA on 29 January, after the section 3 assessment. This delay in the Trust ensuring Mr D was aware of the support available from an IMHA is fault.
  3. There is no statutory requirement for an IMHA to attend a MHA assessment. The Council’s complaint response explained IMHAs do not usually attend MHA assessments. I am satisfied therefore that access to an IMHA during the MHA assessment was not affected. However, access to an IMHA prior to this may have been helpful for Mr D to understand his rights and decisions about his care and treatment.
  4. The Trust’s complaint response acknowledges the delay in providing access to an IMHA and said this was a key learning point. However, it provided no details on how it would address the fault and it did not apologise to Mr D for any distress caused by the fault.

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Agreed actions

  1. The Trust has agreed that within one month of the date of the Ombudsmen’s final decision statement it will:
      1. Apologise to Mr D and his family for any distress caused by the faults in communicating with him about his illness and medication
      2. Apologise to Mr D for any distress caused by the fault in not offering or arranging an IMHA sooner
  2. The Trust agreed that within three months of the date of the Ombudsmen’s final decision statement it will:
      1. Set out an action plan to address the learning points identified with informing patients about IMHAs
  1. These actions should be shared with Mrs P, the Ombudsmen, CQC and NHS Improvement.

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Decision

  1. The Council was at fault in its recording of discussions with the nearest relative about the proposed MHA assessment. It has already acknowledged this and taken appropriate action to improve.
  2. There was no fault by the Council in relation to its role in the MHA assessment. The AMHP took account of the medical professionals in making their decision. The Ombudsmen cannot consider the professional judgement of the medical professionals when this is part of a MHA assessment.
  3. The Trust was at fault with its communication with Mr D about his illness and treatment and also with the delay in discussing the role of an IMHA and arranging one for Mr D. The Trust has agreed actions to remedy the injustice caused by the faults identified. I have therefore completed my investigation.

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Investigator's decision on behalf of the Ombudsman

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