Summary: Ms A complained about the way professionals assessed her, and treated her, as part of a Mental Health Act assessment. We have not found fault in the way the professionals assessed the need to detain Ms A. During the local complaints process the Council accepted it could have done more to protect Ms A’s dignity when taking her out of the house and it apologised. We consider this was a proportionate response and have not recommended more action.

The complaint

1. Ms A said she suffers from a wide range of debilitating physical health problems, for which the NHS cannot offer an effective treatment plan. Ms A said, because of this, she uses alternative means to help relieve her symptoms.
2. In February 2022 professionals assessed Ms A under the Mental Health Act 1983 (the MHA). The aim of the assessment was to decide if Ms A needed to be detained in hospital for an assessment of her mental health. An Approved Mental Health Practitioner (AMHP) from Bristol City Council (the Council) managed this process. NHS Bristol, North Somerset and South Gloucestershire Integrated Care Board (the ICB) paid two doctors for the medical assessments they completed as part of the MHA assessment.
3. Ms A complains that the professionals who took part in the MHA assessment failed to take account of, understand or address her physical health conditions. She said, instead, they made false and harmful assumptions about her mental health. Ms A complains the decision to detain her was inappropriate and unnecessary.
4. Further, Ms A complains the professionals who took part in the MHA assessment:
1. Banged on doors and windows.
2. Entered the back entrance of her house.
3. Talked over her and did not listen to what she said.
4. Entered her shower room, pulled her out of the shower and allowed men in the bathroom and did not allow her to dress in privacy.
5. Pulled her down the stairs without her clothes and with a bag they had prepared for her.
6. Refused to let her put her shoes on and made her walk barefoot to the car outside.
5. Ms A said she found these experiences stressful and shocking. She said she was upset that people had been in her home and asked her degrading questions and did not allow her to dress in privacy. Ms A said the professionals violated her Human Rights by failing to treat her with dignity in her own home, and by physically abusing her.
6. In bringing her complaint to the Ombudsmen Ms A said she would like:

• A written apology from the MHA Team for violating her human rights and for their abuse of power.
• The overhaul of the MHA Team, with staff members disciplined.
• Some compensation for the hassle she experienced and for the lack of help for her physical conditions.

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The Ombudsmen’s role and powers

7. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended, and Health Service Commissioners Act 1993, sections 3(4)- 3(7))
8. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
9. If the Ombudsmen find fault, they may suggest a remedy. Our 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.
10. 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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What I have and have not investigated

11. I have investigated Ms A’s complaint about the way professionals assessed her under the MHA. I have also investigated issues (d), (e) and (f), listed above.
12. I have not investigated issue (a). The only evidence we could consider about this issue would be:

• Ms A’s recollection of events,
• anything recorded in the notes, and
• any recollections the professionals provided nearer to the time of events.

13. I have seen from the complaints papers that the professionals deny they acted aggressively or banged inappropriately.
14. This is a subjective issue. An investigation would not find fault with any reasonable attempts professionals made to gain the attention of someone in their home whom they wanted to assess. We would accept it would be reasonable practice for staff to knock on someone’s door, or knock on windows. When ‘knocking’ becomes ‘banging’ and, specifically, unreasonably aggressive and unnecessary ‘banging’ is a subjective one. That is, different people will have different opinions about where the threshold lies.
15. Overall, there is no realistic prospect of making a balanced, evidence-based finding of fault here. This is why I have not investigated this issue.
16. I have not investigated issue (b). I saw that, in its response to this issue, the Council said that Ms A’s mother directed the professionals to enter the house through the back door. As with issue (a), in view of the evidence that would be available about this, I do not consider we would be able to make an evidence‑based finding of fault.
17. I have not investigated issue (c) as a specific complaint. Again, there would be no realistic way to show, from our independent perspective, whether there was fault here. However, I have investigated Ms A’s broader concern about the process the professionals followed before deciding to recommend her detention.

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How I considered this complaint

18. I considered Ms A’s written complaint to the Ombudsmen. I wrote to the Council and the ICB to explain what I intended to investigate and to ask questions and for relevant evidence. I considered all the papers I received in response. I read relevant legislation and guidance.
19. I shared a confidential copy of this draft decision with Ms A, the Council and the ICB and invited their comments on it. I considered all the comments I received in response, via email and over the phone.

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What I found

The Mental Health Act 1983

20. Under the MHA, when someone has a mental disorder and is putting their safety or someone else’s at risk professionals can detain them in hospital against their wishes. This is sometimes known as ‘being sectioned’.
21. Usually, three professionals need to agree 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. Admission should be in the best interests of the person, and they should not be detained if there is a less restrictive alternative.
22. The AMHP is responsible for deciding whether to go ahead with the application to detain a person and for telling the person and their nearest relative about this. The AMHP is acting on behalf of the Council.
23. The AMHP has to complete a full report as soon as possible after completing a MHA Assessment. This should document the assessment, the reasons for the decision and any discussions with the person’s nearest relative.
24. Doctors need to complete a direct examination of the person and their mental state. And they must consider all the relevant clinical information, including from other professionals and non-professionals. Doctors must give reasons for their opinions.
25. The purpose of detention under section 2 of the MHA 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.
26. The Mental Health Act Code of Practice (the Code of Practice) guides health and social care staff on how to use the MHA in practice.

The Human Rights Act 1998

27. The Human Rights Act 1998 sets out the fundamental rights and freedoms that everyone in the UK is entitled to. This includes the right to freedom from torture and inhuman or degrading treatment or punishment, liberty and security of person, a fair hearing, respect for private and family life, and freedom of expression. The Human Rights Act requires all local authorities - and other bodies carrying out public functions - to respect and protect individuals’ rights.
28. The remits of the Ombudsmen do not extend to deciding whether a body in jurisdiction has breached the Human Rights Act. Only the courts can do this. But the Ombudsmen can decide whether a body in jurisdiction has had due regard to an individual’s human rights in their treatment of them, as part of our consideration of a complaint.
29. In practical terms, councils and other public bodies will often be able to show they are compliant with the Human Rights Act if:

• they consider the impact their decisions will have on the individuals affected and,
• there is a process for decisions to be challenged by way of review or appeal.

Brief summary of events

30. In February 2022 Ms A’s GP referred Ms A to the local mental health crisis service. They had concerns about her mental health and wellbeing. The crisis service also had concerns about Ms A’s mental health and felt it could not keep her safe. Around a week after the GP’s referral, a consultant psychiatrist from the crisis team referred Ms A to the AMHP service and asked it to assess Ms A under the MHA.
31. An AMHP, AMHP trainee and two doctors went to Ms A’s home in late February. They decided that Ms A should be detained under section 2 of the MHA. Transport staff took Ms A to an inpatient mental health unit.

Findings of the local complaints process

32. In August 2022 the Council responded to a complaint from Ms A. The Council did not identify any failings in the MHA assessment. It said the AMHP and doctors assessed Ms A properly and asked suitable questions. The Council concluded that, based on the medical recommendations and AMHP report, it was:

“confident that this was a decision made in good faith and was based on [Ms A’s] presentation on the day and the assessment that your physical health was at risk. The assessing team had reason to believe that you had a mental disorder, and it was in the interests of your health and safety to detain you to hospital for a period of assessment”.

33. In terms of events after the professionals had decided Ms A should be detained, the Council said there were no men in her bathroom when staff took her out of the shower. However, it said staff should have taken steps to allow Ms A to leave her home with more dignity. The Council recognised that staff did not give Ms A opportunities to go into her room to get dressed or to put on shoes. It also noted that a bag of clothes was packed for her to take to hospital. The Council apologised for this and for the trauma Ms A experienced because of it.

Analysis

MHA assessment

34. The Code of Practice notes that, before deciding that someone needs to be admitted to hospital, professionals must consider whether there are other, less restrictive, ways of providing necessary care and treatment. They must consider a range of things, including whether:

• The person’s health and safety is at risk,
• The person’s mental health will get worse without treatment,
• The person’s mental capacity to understand any risks they face,
• There are alternative ways of effectively and reliably providing the necessary care.

35. AMHPs and doctors are expected to exercise their own professional judgement about the person’s need to be detained (sections 14.44 and 14.52).
36. The contemporaneous records provide evidence that the AMHP and two doctors considered relevant factors when assessing Ms A. There is evidence to show they took account of the reasons why the crisis team had referred Ms A for an assessment. The professionals considered Ms A’s mental capacity to understand, retain and weigh up relevant information. They also considered whether there was evidence of a mental illness.
37. All the accounts of these events agree that it was a difficult and fraught assessment. However, on balance, there is sufficient evidence to show that the professionals attempted to engage with Ms A and tried to explore the concerns the crisis team had raised.
38. In statements taken during the complaints process the professionals acknowledged the decision about whether to detain Ms A was a borderline one. However, regardless of the finely-balanced nature of the decision at hand, a decision still needed to be made. Overall, the available evidence shows that the professionals engaged directly with Ms A and considered relevant factors before making a professional judgement. As such, I have not found evidence of fault.

Complaint that professionals entered Ms A’s shower room, pulled her out of the shower and allowed men in the bathroom and did not allow her to dress in privacy

39. The Code of Practice notes that AMHPs have overall responsibility for managing the process of assessment (section 14.41). It says that, when doing so, they should be sensitive to a range of factors including the patient’s age and sex.
40. Section 14.92 of the Code of Practice notes that, once a decision has been made to detain someone, this “provides the applicant with the authority to transport the patient to hospital even if the patient does not wish to go”.
41. Ms A complained that the professionals allowed around six people, including men, into her bathroom while she was in the shower, naked.
42. The contemporaneous records of the AMHP and transport staff do not match this account. Nor do the statements from the AMHP, trainee AMHP and transport staff. The two doctors had left by the time of these events.
43. According to the professionals’ accounts, all the professionals remained outside Ms A’s bathroom for a ‘long time’. They report that the AMHP attempted to talk to Ms A through the bathroom door and tried to persuade her to come out. The statements also report that Ms A’s mother reported that Ms A sometimes spent around two hours in the bathroom and the professionals were concerned about the situation continuing without a resolution. The AMHP also noted concerns about Ms A’s safety.
44. All the reports from the professionals state that only two professionals went into the bathroom, both of whom were female; the trainee AMHP and a female member of transport staff. These reports state that one member of staff stood at the door to block the view of others, and the other member of staff entered with a towel raised and then wrapped it around Ms A.
45. There is no security camera, smart phone or bodycam footage of this incident. As such, I have to rely on these conflicting accounts alone. I have not seen anything in the contemporaneous records or staff statements that has given me cause for concern that staff collaborated to create inaccurate, misleading accounts of these events. On balance, given there are accounts from three sources which match, I consider the professionals’ accounts of events are a more accurate account of events.
46. It is regrettable that professionals needed to go into Ms A’s bathroom while she was naked and vulnerable. It is easy to understand that this was upsetting for Ms A and caused a loss of dignity. However, the evidence suggests that the professionals:

• had cause to be concerned that Ms A was seeking to stall and evade being detained, given her obvious disagreement with the assessment;
• made proportionate attempts to persuade her to leave without sending staff in; and,
• did what they could to minimise any distress and loss of dignity by only sending female staff in and using a towel.

47. Because of this, I have not found fault here.

Complaint that professionals pulled Ms A down the stairs without her clothes and with a bag they had prepared for her; and

Complaint that professionals refused to let Ms A put her shoes on and made her walk barefoot to the car outside

48. The professionals’ accounts of what happened after Ms A left the bathroom differ slightly; one said she was helped into a dressing gown while another said a sheet was wrapped around her. However, there is no dispute that the PA was not given the opportunity to get dressed.
49. Once Ms A was out of the bathroom two members of transport linked arms with her and walked her down the stairs and out to the waiting vehicle. It was reported that Ms A was still wet. She did not have any shoes on. The records note that, once in the transport vehicle, Ms A was helped to get dressed.
50. As above, the Council’s complaint response acknowledged that the situation should have been managed differently. It noted that her dignity could have been better protected if it had.
51. The failure to allow Ms A an opportunity to leave her home with more dignity was fault. It is believable and understandable that she found the experience – of walking from her front door to the waiting transport naked under either a dressing gown or sheet, with no shoes on and still wet from the shower – distressing and upsetting. This was an injustice to her. The Council apologised for the trauma she experienced. It is also evident from the complaint file that the personnel involved have reflected on the situation. Overall, I consider this was a proportionate response to the injustice Ms A experienced and I have not recommended any further action.

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Decision

52. I have completed this investigation on the basis that the injustice Ms A suffered has already been appropriately addressed.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman