Summary: The Ombudsmen will not investigate this complaint about a decision to detain someone under the Mental Health Act. The actions of the doctors involved in the assessment are outside of PHSO’s remit. LGSCO could consider the assessment an Approved Mental Health Professional completed but an investigation is unlikely to find significant failings in the process they followed.

The complaint

1. Ms X complains about:
1. Decisions by the police to arrest her in her home on 29 July 2021, and to detain her in a police cell for 15 hours.
2. Recommendations by two doctors that she should be detained under section 2 of the Mental Health Act 1983 (the MHA) on 30 July 2021.
3. The MHA assessment completed by one of Southampton City Council’s (the Council’s) Approved Mental Health Professionals (AMHP) on 30 July 2021, and their decision to apply to detain Ms X under section 2 of the MHA.
4. Southern Health NHS Foundation Trust’s (the Trust’s) response to her complaint. Ms X said it was “full of inaccurate information and false allegations, including insults”.
2. Ms X said her detention in a mental health inpatient unit left with post-traumatic stress. She said that this has a significant detrimental impact on her day-to-day life. In addition, Ms X said her detention had worsened her financial position.
3. In bringing her complaint to the Ombudsmen Ms X said she would like:

• financial compensation for the post-traumatic stress the failings caused her, and
• an apology for the “lies and insults” in the complaint investigation report.

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The Ombudsmen’s role and powers

4. The Health Service Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’ in the delivery of health services by people and organisations specified in the Health Service Commissioners Act 1993.
5. When doctors make recommendations under sections 2, 3 or 4 of the MHA they are acting under powers which have been given to them under the MHA. They are acting as individuals and not on behalf of the NHS. This means we cannot investigate complaints about their actions and recommendations. (Health Service Commissioners Act 1993, sections 2, 2A, 2B and 3)  
6. 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
• they cannot achieve the outcome someone wants.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

7. The Ombudsmen cannot diagnose people or assess their needs or decide what level of care is appropriate and adequate. This is a matter of professional judgement and a decision that the relevant organisation has to make.
8. 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))

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How I considered this complaint

9. I read Ms X’s written complaint to the Ombudsmen. I read copies of Ms X’s complaints to the Trust and Council along with their responses. I considered relevant legislation and guidance. I shared a draft decision with Ms X and considered the email she sent in response.

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What I found

10. On 29 July 2021 the police detained Ms X. While in custody the police contacted mental health services and requested a MHA assessment.
11. In the early hours of 30 July 2021 the police detained Ms X under section 136 of the MHA and took her to a mental health hospital.
12. In the afternoon of 30 July 2021 two doctors saw Ms X along with an AMHP and an AMHP trainee. Both doctors recommended that Ms X be detained under section 2 of the MHA. The AMHP completed a MHA assessment and applied for Ms X to be detained under section 2 of the MHA.
13. Ms X was detained in hospital. She applied to a First-tier Mental Health Tribunal to have her detention rescinded. On 4 August 2021, before the Tribunal had taken place, a doctor reviewed Ms X on the ward. They rescinded Ms X’s detention and discharged her from hospital.

Complaints Process

14. Ms X complained to the Trust about her detention at the end of July 2021. The Trust forwarded the complaint to the Council in August 2021, in relation to the aspects of Ms X’s concerns that related to the Council’s responsibilities.
15. The Trust replied to Ms X’s complaint at the end of September 2021 and included a response from the Council. In brief, the authorities concluded Ms X’s detention had been appropriately carried out.
16. Ms X remained dissatisfied. She attended two meetings with staff from the Trust and Council in October and November 2021. These meetings did not resolve Ms X’s concerns.

Relevant legislation and guidance

17. Under 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 AMHP or the nearest relative, plus a doctor who has been specially approved in MHA 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. Admission should be in the best interests of the person and they should not be detained if there is a less restrictive alternative.
18. Sections 14.30 to 14.76 of the MHA Code of Practice (2015) provide directions and guidance about how professionals should assess people before applying to detain them under the MHA.

Findings

19. We cannot investigate Ms X’s concerns about the actions of the police. Neither LGSCO nor PHSO has the authority to do so.
20. Similarly, we cannot look at Ms X’s concerns about the recommendations made by the two doctors. This is because the doctors who assessed Ms X did not do so on behalf of the Trust or NHS. As such, their actions are outside PHSO’s remit. The Care Quality Commission (the CQC) may be able to consider Ms X’s concerns about their assessments.
21. As we cannot consider the original substantive actions of the doctors we will not consider Ms X’s concerns about the Trust’s response to her complaint. This is because it would not be possible to usefully and properly do so without also considering Ms X’s substantive concerns about the doctors’ recommendations, which we do not have the authority to do. Therefore, there is no prospect we could achieve a meaningful outcome by looking at this aspect of Ms X’s complaint.
22. Ms X’s complaint about the MHA assessment completed by the Council’s AMHP falls within LGSCO’s remit.
23. Ms X considers she was detained unlawfully. Only the courts can find a body has acted unlawfully. We cannot do so. We make findings of fault, not of lawfulness or unlawfulness. When we investigate a complaint we decide whether, based on the evidence we have seen, there is fault in how a body has made its decision.
24. The Ombudsmen do not investigate every complaint which is brought to them. There are a range of factors the Ombudsmen consider first, including a number which are not black and white and need an element of judgement. This includes consideration of whether it is likely an investigation will be able to find evidence of significant fault, and whether it is likely an investigation will be able to produce a meaningful and worthwhile outcome.
25. In relation to the information in paragraphs 7 and 8, the Ombudsmen cannot make or remake professional judgements about whether people should be detained under the MHA. LGSCO’s role would be to consider whether the AMHP followed the processes set out in the MHA and the associated Code of Practice. Where an AMHP has followed the proper process we would have no call to question the judgements they made at the end of it. In this instance the evidence to hand suggests the AMHP completed the relevant and necessary steps before completing their assessment, including taking account of medical recommendations and considering less restrictive options.
26. As such, it is improbable an investigation would find fault in the process the Council followed. It follows that we would have no reason to question the professional judgement the AMHP made. In view of this, even if an investigation were to uncover minor failings, there would no prospect of being able to make meaningful recommendations which could produce a satisfactory outcome.

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Decision

27. I have closed this case on the basis that:

• the Ombudsmen do not have the authority to consider Ms X’s concerns about the police or the doctors who assessed her under the MHA, and
• it is unlikely an investigation of the AMHP would lead to findings of significant failings or a helpful, meaningful outcome.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman