Decision : Closed after initial enquiries
Decision date : 15 Dec 2020
The Ombudsman's final decision:
Summary: The Ombudsmen will not investigate a complaint about a Council and an NHS Trust’s decision not to complete a Mental Health Act assessment sooner. This is because there is insufficient evidence of fault and injustice.
- Mrs A complains about Kent and Medway NHS and Social Care Partnership Trust (the Trust) and Kent County Council (the Council). She says they failed to assess her daughter, Mrs B, under the Mental Health Act when she was admitted to hospital on 4 December 2016. Mrs A says this would have prevented her daughter from absconding from hospital the following day, putting her at risk of harm.
- Mrs A complains that the Trust refused to respond to her complaint as it was ‘out of time’ under the NHS Complaints Regulations.
The Ombudsmen’s role and powers
- 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 on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
- 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 the fault has not caused injustice to the person who complained, or the injustice is not significant enough to justify their involvement. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
- I have considered the information Mrs A and her representatives have provided. I have also considered information from the Council and the Trust.
Legal and administrative context
- The complaints procedure for councils and NHS organisations is set out in the Local Authority Social Services and NHS Complaints (England) Regulations 2009.
- Under these regulations a complaint must be made within 12 months of the date on which the matter complained about happened, or the date on which the complainant became aware of the matters complained about.
- However, organisations have discretion to consider complaints if they are satisfied the complainant had good reasons for not making the complaint within that time limit and, notwithstanding the delay, it is still possible to investigate the complaint effectively and fairly.
- 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.
- The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person and their nearest relative about this. The Mental Health Act 1983: Code of Practice (the Code of Practice) sets out how professionals should implement the MHA. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
- 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 a maximum of 28 days
- In 2016 Mrs B was detained in a mental health unit in while she was visiting another country. In December 2016 arrangements were made for Mrs B to return to England. On 4 December, Mrs B’s son took her to hospital (part of the Trust).
- The Trust’s clinicians reviewed Mrs B and recorded that she agreed to be admitted for treatment. The Trust therefore admitted Mrs B as a voluntary patient. It did not consider compulsory admission under the MHA was necessary.
- On 5 December Mrs B left the ward and did not return. Her son contacted the Trust later that day to advise she had made her way home. Two staff members from the Trust went to her home to bring Mrs B back to the hospital, However, she refused. Family members said they would stay with her overnight and take her back to hospital the following day. The Trust staff did not note any immediate concerns about her safety and well-being.
- Mrs B returned to hospital the next morning. Medical staff and an AMHP assessed her under the MHA and recommended she be detained under section 2 of the MHA.
- Mrs A complained to the Council and the Trust about Mrs B’s care. The Ombudsmen considered most of these complaints previously.
- In January 2020, after we shared a draft decision on the earlier complaint, Mrs A complained to the Trust and the Council about the issues in this complaint. Mrs A had complained to the Trust about not sectioning Mrs B after her hospital admission previously, but at that time Mrs B did not consent to the complaint. The Trust broadly responded to Mrs A about this issue, but it did not include personal information about Mrs B.
- The Council’s response to the new complaint said it had not received a referral to its AMHP service. It therefore had no involvement in considering a MHA assessment sooner.
- The Trust’s response to the complaint Mrs A made in January 2020 said it considered Mrs A had not made the complaint in time under the NHS complaints regulations. It explained it would therefore not look into this further.
- As Mrs B was a hospital inpatient, Trust staff were responsible for making decisions about her care. It would have needed to make a referral to the Council’s AMHP service before they had any involvement. The Trust did not make a referral until 6 December after Mrs B returned to hospital. The AMHP attended and took part in the MHA assessment. As the Council had no role in assessing Mrs B until after 6 December, the Ombudsmen could not find fault in not completing an assessment sooner.
- I do not consider the Trust was correct in saying the complaint was late under the NHS complaints regulations. Although the events happened more than a year before and Mrs A had knowledge of the issues complained about, I have seen she did complain to the Trust in 2017.
- I have considered whether to refer this issue back to the Trust to respond to. However, the Trust has already investigated and responded to this issue, albeit, with some personal information about Mrs B removed. I therefore consider there would be limited benefit given the response it has already provided and also the time that has now passed since the events.
- The records show Mrs B agreed to the hospital admission and the clinical staff did not consider her observations indicated any need for assessment under the MHA for compulsory admission. The records also indicate Mrs B understood the reason for her admission to receive treatment and accepted this.
- The clinicians considered there was no indication Mrs B was a risk to herself or others based on how she presented. A voluntary admission was the least restrictive action. This was in line with the Code of Practice and given Mrs B agreed to the voluntary admission, I consider the Ombudsmen would be unlikely to find fault.
- Mrs A says the Council and the Trust put Mrs B at risk by not detaining her under the MHA. I consider it is reasonable to conclude Mrs B was at increased risk of harm when she left the hospital and made her way home by herself. I also accept these events may have been distressing for her and her family. While it is correct Mrs B would have been unable to leave the hospital if she had been detained under the MHA, this does not mean it would have been the right decision based on how she presented on admission to hospital.
- However, I have seen no evidence Mrs B suffered harm and she returned to hospital the following day for treatment. Therefore, even if we did find fault, there was no significant injustice to Mrs B that indicates we should investigate.
- I have decided we should not investigate this complaint. There is insufficient evidence of fault by the Council or the Trust and an Ombudsmen investigation would not be a proportionate use of resources in this case given the injustice.
Investigator's decision on behalf of the Ombudsman