Summary: Avon & Wiltshire Mental Health Partnership NHS Trust did not appropriately record Miss X’s reasonable adjustments during a meeting. That did not cause her an injustice but the Trust should still take action to stop similar fault happening to others. Also, an Approved Mental Health Professional for North Somerset Council did not inform Mr X of his rights as Miss X’s nearest relative following a Mental Health Act assessment. The Council should apologise for the frustration caused to him.

The complaint

1. Mr X complains on behalf of his daughter, Miss X, about the actions leading up to and during a Mental Health Act (MHA) assessment. He says:
1. Before the MHA assessment, two doctors from the Trust failed to make reasonable adjustments for his daughter’s communication needs resulting from her autism. That was not in line with the Equality Act 2010. Those doctors continued asking questions despite his daughter asking them to stop. They should have allowed parental support or an advocate so she could understand what she was being asked, and any implications of her answers. 
2. The outcome of the MHA assessment was pre-determined. The Approved Mental Health Professional (AMHP) and Section 12 doctors had already decided to feed his daughter via a nasogastric tube and did not fully explore the least restrictive option. It was simply the easiest way for them to feed her, which was against Article 5 of the Human Rights Act 1998.
3. The MHA assessment was a glorified professionals meeting, after which the AMHP simply let his daughter know she would be detained under Section 3.
4. The AMHP did not appropriately determine his daughter’s capacity during the MHA assessment.
5. The AMHP did not inform him of his rights as nearest relative or give him the chance to oppose her detention.
2. Mr X says the events caused his daughter’s mental health to significantly worsen. He believes her attempts to take her own life in early 2023 are related to the decision to detain her under Section 3. He also says events caused him and his wife distress.
3. Mr X would like the organisations apologise and carry out service improvements to stop similar fault from happening to others. He also says the organisations should provide a financial remedy to his daughter for the impact to her mental wellbeing.

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The Ombudsmen’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, we 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). If it has, we 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.
5. The Ombudsmen may decide not to investigate a complaint if the complainant had a right of appeal and it was reasonable to expect them to use it. (Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)
6. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe 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)
7. If we are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, we can complete our 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

8. I read the papers submitted by Mr X and discussed the complaint with him.
9. I considered the Council and Trust’s comments about the complaint and the supporting documents they provided.
10. Mr X, Miss X and the organisations had an opportunity to comment on a draft decision. I considered comments received before making my final decision.

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What I found

Relevant legislation

Reasonable adjustments

11. Autism is a developmental condition which affects the way a person communicates with others and perceives and makes sense of the world. People with autism have difficulty with social interaction, social communication and rigid and repetitive ways of thinking and behaving. They may also have other difficulties such as sensory sensitivity and anxiety.
12. The Equality Act 2010 places a duty on NHS trusts to make reasonable adjustments for certain people. The duty aims to make sure that a disabled person can use a service as closely as is reasonably possible to the standard usually offered to people without disability. When the duty arises, a council must take steps to remove or prevent obstacles to accessing its service. If the adjustments are reasonable, it must make them.
13. We cannot find that an organisation has breached the Equality Act. However, we can:
• find an organisation at fault for failing to take account of its duties under the Equality Act; and
• make decisions about whether or not an organisation has properly taken account of an individual’s rights in its treatment of them.
14. Organisations will often be able to show they have properly taken account of the Equality Act if they have considered the impact their decisions will have on the individuals affected and these decisions can be challenged, reviewed or appealed.
15. The Trust’s ‘Accessible Information Standard Policy’ details how it ensures it meets information and communication supports needs for people with a disability or sensory loss. It details the five steps below to follow:
• Ask/Identify – if an individual has any communication needs relating to a disability, sensory loss (or other language need)
• Record those needs in a clear and consistent way in electronic/and or paper based records. The emphasis being on ‘needs’ and how these needs can be met, rather than the ‘disability’.
• Highlight or flag the persons electronic records or notes so staff can easily see when a person has communication or information needs and how those needs can be met.
• Share information about people’s communication or information needs with other providers of NHS and adult social care as part of existing data sharing processes.
• Act to make sure that people get communication support they need and information they can access and understand.

The Mental Health Act

16. Under the Mental Health Act 1983 (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 include an Approved Mental Health Professional (AMHP) and usually (but not always) two doctors who have been specially approved in Mental Health Act detentions (Section 12 doctors).
17. 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. 14.64 of ‘Mental Health Act: Code of Practice’ (the Code) states: “When consulting the nearest relatives AMHPs should were possible…inform the nearest relative of their role and rights under the Act.”
19. The purpose of Section 3 of the MHA is to provide treatment for someone suffering with a mental disorder, and appropriate treatment is available.
20. When Section 12 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. But sometimes those doctors will also be making those recommendations under an NHS contract. In this complaint, both Section 12 doctors who assessed Miss X worked under their contracts with the Trust.
21. People who have been detained under the MHA can apply for a hearing to the First-Tier Tribunal (Mental Health) if they disagree with the decision. The Tribunal must discharge the person from detention if, on the day of the hearing, they do not meet the criteria needed for detention.

Background

22. Miss X suffers with anorexia and autism.
23. On 13 April 2022, Bristol Royal Infirmary (not subject to this investigation) admitted Miss X following weight loss.
24. Two days later, Dr A spoke to Mr X about using the MHA to treat Miss X’s anorexia. Mr X did not support that approach.
25. On the morning of 22 April, Dr A and Dr B spoke to Miss X to understand her views on how to treat her anorexia. After that conversation, Dr A and Dr B agreed to refer Miss X for a MHA assessment.
26. Later that day, an AMHP and two Section 12 doctors (including Dr A), recommended to detain Miss X under Section 3 of the MHA, to feed her by nasogastric tube. They said that was the least restrictive option and would save her life.
27. On 25 April, the Trust stopped feeding Miss X by nasogastric tube. The Trust reviewed its treatment plan and agreed to give Miss X highly nutritious drinks instead, which she accepted.
28. By mid-July, Miss X was still under Section 3. She had a solicitor who had applied to the Tribunal to discharge her from Section 3. The Tribunal agreed to hear Miss X’s case in early September. At the same time, the Solicitor also sent pre‑action protocol papers to the Council and Trust with the view to judicially review the decision to detain Miss X under Section 3.
29. In mid-August, Miss X moved from Bristol Royal Infirmary to Blackberry Hill Hospital (part of the Trust).
30. In late August, the solicitor told the Council it would not seek to judicially review the decision to detain Miss X under Section 3. Rather, it would like the Council to apologise to Miss X and show it had learnt from her case. The Council refused.
31. In mid-September, the Trust discharged Miss X from Section 3.

Analysis

Part a)

32. Mr X told me his daughter’s autism meant it takes her longer to understand and respond to questions because if her autism. Dr A was familiar with Miss X and should not have asked so many questions without parental support or an advocate.
33. My investigation has considered if the Trust understood Miss X’s needs related to her autism, and if it made appropriate reasonable adjustments to support her.
34. I have reviewed the Trust’s medical records, the relevant policies and a covert recording by Miss X of the conversation on 22 April 2022.
35. I am persuaded the doctors who spoke with Miss X understood she had processing needs. But I have not seen any evidence it captured those needs in line with its local policy. The Trust has not shared any written record of Miss X’s needs, or evidence her needs were easily accessible to staff. That was fault. But I am not persuaded there was any impact to Miss X because the doctors understood what Miss X’s processing needs were. Still, the Trust should take further action to reduce the potential impact to others.
36. I consider there is clear evidence from the meeting that Miss X struggled to explain her views. Miss X and the doctors discussed the quality of her care plan. Miss X tried to explain why it was not good for her, she said: “…if my mum was here she’d help me explain it. This is what happens, I can’t talk to people by myself, I make mistakes”. Later, Miss X said she “…wants to talk when my mum’s here because this just all gets used against me”, and soon after got upset and said “I don’t want to talk anymore if that’s ok”. The meeting continued for around another 15 minutes.
37. In response to my enquiries, the doctors recalled Miss X asking to stop the interview. But felt given the seriousness of her condition, they wanted to work through her initial anxiety to capture her thoughts in as much detail as possible. The doctors recognised it was a difficult clinical situation and needed to balance her processing needs against the risk of life-threatening malnutrition. The doctors dominant concern was for her safety.
38. Mr X said the Trust did not invite him to that meeting in the morning. In response, the Trust said it invited Mr X but he could not attend until the afternoon. There is clearly a difference of opinion here. I do not doubt either sides version of events. Two people can leave a conversation with completely different recollections of what was discussed. But in the absence of evidence from that time, I cannot say, even on the balance of probabilities, why Mr X did not attend that meeting.
39. Mr X said having a female mental health nurse present was not a suitable reasonable adjustment. His daughter did not trust that nurse and was not familiar with her. In response, the Trust said the Trust could not find a staff member that Miss X knew. Therefore, the doctors invited a female nurse to the meeting who was experienced working with people with autism, to make her feel more comfortable.
40. I consider, in the absence of Miss X’s family or an advocate, the Trust tried its best to offer Miss X some support during that meeting. I appreciate Mr X’s view that it was not appropriate. However, I understand it was not possible for the Trust to put in place better support considering Miss X’s life-threatening medical need.
41. Mr X also said the Trust has not been honest about setting two hours aside for that meeting. He said the meeting started one hour before lunch arrived. In response, the Trust said it did set two hours aside. The meeting finished before lunch arrived. Also, had the doctors needed more time, they would have taken a break at lunch and reconvened afterwards. But that was not necessary.
42. I am not persuaded the Trust was dishonest about setting two hours aside to gather Miss X’s views. I consider, on the balance of probabilities, if the Trust needed to speak to Miss X after lunch, it would have.
43. Overall, I am not persuaded the Trust provided appropriate support for Miss X’s processing needs in line with its local policy. However, I do not consider that was fault. I agree with the Trust, the priority was to preserve Miss X’s life. Before the doctors made any decisions about how to treat her anorexia, they needed to understand her views. The Trust has shown it attempted to provide the best support it could to Miss X and considered the Equality Act 2010 in doing so.

Parts b) to d)

44. These three parts of Mr and Miss X’s complaint concern the AMHP and Section 12 doctors’ decision‑making process. That led to the recommendation to detain Miss X under Section 3 of the MHA.
45. Miss X’s solicitor appealed the detention in July 2022, three months after the Trust’s decision to detain her under Section 3. Before the Tribunal considered Miss X’s case, she withdrew her appeal.
46. Mr X told me the Tribunal was not the best way to address the families concerns. He wanted to challenge the legality of Miss X’s detention, and the Tribunal could not achieve that.
47. I have decided to stop my investigation into this part of Miss X’s complaint. The High Court is the best place to challenge the legality of the detention. The Ombudsmen cannot make determinations about the legality of the decision to detain Miss X under Section 3.

Part e)

48. I have reviewed the AMHP’s records from 22 April 2022.
49. Before the MHA assessment began, the AMHP noted: “It was explained to [Mr and Mrs X] that [Y’s] treatment should be under Section 3 of the mental health act as she has an established diagnosis and requires treatment via nasal gastric tube feeding. [Mr X] said he would not object.”. They also recorded that Mr X was in full agreement and would not fight the decision to detain his daughter.
50. 14.64 of the Code states: “When consulting the nearest relatives AMHPs should were possible…inform the nearest relative of their role and rights under the Act.”
51. I have not seen evidence the AMHP advised Mr X of his rights as nearest relative to object to the decision to detain his daughter. I consider that was most likely because Mr X agreed with the decision, so the AMHP did not deem it necessary. I agree the AMHP should have still made Mr X’s rights clear despite his agreement to the detention. That was fault and not in line with the Code.
52. Mr X said if the AMHP had spoken to him separately and informed him if right to oppose the detention, he would have done so. I cannot say, even on the balance of probabilities, what the result of any objection to the detention would have been. But the fault by the AMHP caused Mr X frustration and he lost the opportunity to make that objection. The Council should remedy that injustice to him.

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Agreed actions

53. Within one month of this decision, the Council should apologise to Mr X for the frustration it caused him when the AMHP did not inform him of his right to oppose his daughter’s detention under Section 3.
54. Within two months of this decision, the Trust should ensure it reminds the relevant staff of their responsibility to record reasonable adjustments in line with its ‘Accessible Information Standard Policy’.
55. The Council and Trust should provide us with evidence it has complied with the above actions.

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Final decision

56. The Trust did not appropriately record Miss X’s reasonable adjustments during a meeting. That did not cause her an injustice but it should take action to stop similar fault happening to others.
57. The AMHP did not inform Mr X of his rights as Miss X’s nearest relative following a Mental Health Act assessment. The Council should apologise for the frustration caused to him.
58. I have decided to stop my investigation into the complaints about the circumstances around and the decision to detain Miss X.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman