Summary: The Ombudsmen will not investigate Mr X’s complaint about how he was detained under Section 2 of the Mental Health Act 1983. We are unlikely to find fault in the way Mr X was assessed before being detained. Also, there is insufficient injustice to warrant an investigation.

The complaint

1. Mr X complains about the way an Approved Mental Health Professional (for Norfolk County Council) and two Section 12 doctors (for Norfolk and Waveney Integrated Care Board) assessed him under the Mental Health Act 1983 (the Mental Health Act), leading to the recommendation he be detained under Section 2.
2. Mr X complains that the Mental Health Act assessment was not completed lawfully. Specifically, he complains that he was only assessed by one Section 12 doctor instead of two, and no proper assessment of his mental health was carried out. He complains that the doctors did not recognise the impact of his strong pain medication on his behaviour.
3. Mr X complains that the Approved Mental Health Professional (AMHP) failed in their duty to provide the relevant information for Mr X and his wife about the sectioning process and his rights. Mr X also says no action was taken on his appeal against his detention.
4. Mr X also complains about complaint handling by the Trust and the Council, including significant delay.
5. Mr X says he found the experience distressing and no longer trusts health professionals. Mr X says he is frustrated that the proper process to detain him was not followed. Mr X would like an acknowledgement that things went wrong and service improvements.

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The Ombudsmen’s role and powers

6. The Ombudsmen consider 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), as amended).
7. 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))
8. 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 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)

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How I considered this complaint

9. I considered information provided by Mr X and Norfolk and Suffolk NHS Foundation Trust and discussed the complaint with Mr X. I also considered the Ombudsman’s Assessment Code. I shared my draft decision with Mr X and considered the comments he made.

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What I found

Key legislation and guidance

Mental Health Act

10. Under the Mental Health Act 1983 (the Mental Health Act), 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 include an Approved Mental Health Professional (AMHP), plus usually (but not always) two doctors who have been specially approved in Mental Health Act detentions (Section 12 doctors).
11. 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.

What happened

12. Mr X has a history of severe back pain. He takes strong prescription medication for pain management. Mr X’s pain medication was changed in late December 2020.
13. In January 2021, Mr X’s behaviour became increasingly erratic. Several professionals raised concerns about Mr X as he was apparently acting out of character. Mr X’s family was also worried about him.
14. On 1 February 2021, a member of the Crisis Resolution and Home Treatment Team visited Mr X. He recommended Mr X be assessed under the Mental Health Act.
15. On 2 February 2021, Mr X was visited by two Section 12 doctors and an AMHP. Two police officers were also present. It was recommended that Mr X be detained under Section 2 of the Mental Health Act. Mr X was then admitted to hospital.

Analysis

Mental Health Act assessment

16. Mr X complains the Mental Health Act assessment was not completed lawfully. He says he was only assessed by one Section 12 doctor. He says no proper mental health assessment was carried out and the doctors failed to consider the impact of his pain medication on his behaviour.
17. Sections 14.30 to 14.76 of the Mental Health Act Code of Practice (the Code of Practice) provides directions and guidance about how professionals should assess people before applying to detain them under the Mental Health Act.
18. The Ombudsmen cannot make or remake professional judgements about whether detention under the Mental Health Act is right. Our role is to consider if the professionals followed the steps set out in the Mental Health Act and the associated Code of Practice. Where the process has been followed, we would not question the judgements made at the end of it.
19. The Mental Health Act assessment documents for Mr X and the Trust and Council complaint responses confirm two doctors and an AMHP were present. I acknowledge this differs from Mr X’s recollection.
20. Part 14.71 of the Code of Practice notes “a medical examination must involve direct personal examination of the patient and their mental state, and consideration of all the relevant clinical information, including that in the possession of others, professional and non-professional.” Part 14.75 states “doctors must give reasons for the opinions stated in their recommendations…”
21. In their joint assessment, the Section 12 doctors have clearly recorded their views on Mr X’s behaviour at the time and why they considered detention under Section 2 was appropriate. Information provided by other medical professionals, the AMHP and Mr X’s family was also considered. The doctors' assessment notes a change in Mr X’s pain medication may have had unforeseen consequences on his mental state. The Trust’s complaint response also confirms that the doctors were aware of Mr X’s current medication. The evidence suggests that the doctors considered the potential impact of Mr X’s pain medication, alongside other possible factors, as part of the assessment.
22. The Trust’s Mental Health Act Office reviewed Mr X’s assessment paperwork as part of its scrutiny process and confirmed it met legal requirements, as part of the process of detaining Mr X.
23. As Mr X did not engage or agree with any interventions outside of the Mental Health Act, this left the professionals with little choice other than to recommend detention under Section 2.
24. Based on the evidence I have seen, it appears the Section 12 doctors and the AMHP were present and followed the relevant procedures and requirements when recommending Mr X be detained. I consider we are unlikely to find fault with the way Mr X’s Mental Health Act assessment was carried out.

Approved Mental Health Professional duties

25. Mr X complains that the sectioning process was not properly explained to him or his wife. He says they were not provided with the proper paperwork. Mr X also says he was misled that he was going to a different hospital as a voluntary admission and was not told he was being detained.
26. Part 14.64 of the Code of Practice that “when consulting nearest relatives AMHPs should, where possible: ascertain the nearest relative’s views…, inform the nearest relative of the reasons for considering an application for detention and what the effects of such an application would be, and inform the nearest relative of their role and rights under the Mental Health Act”.
27. The AMHP report records discussions with Mrs X, including obtaining her views, informing her of her rights as Nearest Relative, providing a leaflet and providing contact details for the hospital. Mrs X was also part of the conversation with professionals when reaching the decision to detain Mr X. Therefore, it appears that Mrs X was given the relevant information and we would be unlikely to find fault on this point.
28. The AMHP report records a conversation with Mr X, during which he declined less restrictive options including community treatment or an informal admission. I have seen nothing to confirm that Mr X was told his admission was voluntary. During this conversation, the AMHP felt Mr X was unable, at that time, to take on board the concerns and risks being discussed.
29. In its complaint response, the Council acknowledged the AMHP did not have a further conversation with Mr X after the decision to recommend detention had been made. Both the Trust and the Council have apologised if it was not properly explained to Mr X that he was being detained.
30. We will normally only investigate a complaint where the complainant has suffered serious loss, harm or distress as a direct result of faults or failures by an organisation.
31. I acknowledge Mr X is frustrated he may not have received all the information he should have done. However, for the reasons I have set out above, I think we are unlikely to find fault in relation to information shared with Mrs X. In addition, I do not consider any injustice to Mr X is significant enough to warrant an investigation. Both the Trust and the Council have apologised to Mr X and further investigation by us is unlikely to achieve more.

Complaint handling

32. Mr X is unhappy with the way his complaint was handled. It is not a good use of public resources to investigate complaints about complaint procedures if we are not investigating the substantive issue. Therefore, I do not propose to investigate Mr X’s complaints about complaint handling.

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Final decision

33. We will not investigate Mr X’s complaint about the way he was detained under Section 2 of the Mental Health Act. This is because an investigation is unlikely to find fault in relation to how the Mental Health Act assessment was conducted, and there is insufficient injustice relating to the AMHP’s duty to provide information.

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Investigator's decision on behalf of the Ombudsman