Summary: Miss X complained about the way professionals assessed her under the Mental Health Act 1983 and their recommendation that she should be detained. We will not investigate Miss X’s complaint. This is because it is unlikely an investigation would be able to find evidence of fault.

The complaint

1. An Approved Mental Health Professional (AMHP) assessed Miss X under the Mental Health Act 1983 (the MHA) at the end of December 2023. Under the terms of a local cross border protocol, the Royal Borough of Windsor and Maidenhead Council (the Council) was responsible for the AMHP's actions.
2. Two doctors took part in the MHA assessment, providing medical recommendations about whether Miss X should be detained. Neither doctor did this work as part of their regularly contracted work for an NHS Trust. Both were eligible to claim a fee for their work from NHS Frimley Integrated Care Board (the ICB). As such, the ICB was responsible for the doctors’ actions.
3. Following the MHA assessment the AMHP recommended that Miss X be detained under section 2 of the MHA.
4. Miss X complains the AMHP failed to follow the correct procedures, and failed to act appropriately, when assessing her under the MHA. Miss X complains the AMHP failed to act transparently and failed to openly consider or verify key information she provided. Further, Miss X complains the AMHP failed to consider less restrictive options than detaining her.
5. In summary, Miss X complains the AMHP recorded and used false and misleading information to justify an otherwise unsupportable recommendation to detain her under s2 of the MHA.
6. Miss X also complains about the two doctors who participated in the MHA assessment. In particular, she complains that one falsely claimed to have spoken to her mother during the assessment.
7. Miss X said that, as a result of the failings, she was denied the right to continue medical treatment with her existing private consultant, and denied the right to less restrictive care. She said she was inappropriately detained in a psychiatric hospital for 11 days and lost an offer of housing because of this. Further, Miss X said the incident left with a fear that she could be detained again and she could not go out alone in public until June 2024.

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The Ombudsmen’s role and powers

8. 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:

• it is unlikely we would find fault, or
• we cannot achieve the outcome someone wants.

(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 evidence provided by Miss X and the Council as well as from other councils which operate under the cross border protocol. I also looked at relevant law, policy and guidance.
10. I shared a confidential draft decision with Miss X and invited her comments on it. I considered all the comments she made.

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What I found

Summary of key events

11. At the end of 2023 the police took Miss X to a place of safety at a hospital. In the evening, staff at the hospital contacted an Emergency Duty Service (EDS) and asked it to arrange a MHA assessment of Miss X. The EDS works on behalf of six councils out of usual office hours. The EDS arranged for an AMHP to assess Miss X. Two doctors also saw Miss X and provided medical recommendations for the MHA assessment.
12. The AMHP recommended Miss X be detained under section 2 of the MHA. All the professionals felt Miss X was experiencing paranoid delusions which placed her at risk of harm. The MHA assessment concluded in the early hours of the following morning. Later that day Miss X was transferred to a hospital for further assessment. Miss X applied to be discharged. A tribunal considered her case 11 days later. It rescinded her detention and the hospital discharged Miss X.
13. Miss X began complaining about these events and continued pursuing her concerns for around 14 months. During that time the EDS and an NHS Trust (responsible for the location where Miss X was assessed under the MHA) responded to Miss X’s concerns.
14. In brief, the organisations did not identify any significant failings in the way the professionals assessed Miss X under the MHA. It said the professionals made judgements to the best of their abilities based on the information that was available to them at that time. The EDS said there was no evidence that the AMHP acted in bad faith or prejudiced the assessment outcome or used the assessment unlawfully.
15. The EDS acknowledged that the AMHP’s MHA assessment paperwork was not as good as it should have been. It said this would be addressed via supervision.

Analysis

16. To decide which complaints the Ombudsman can look at, we carry out an initial assessment of every complaint. We are more likely to investigate complaints where we consider we would have a realistic chance of finding clear, independent evidence of fault and where we could achieve what the complainant wants.
17. If we do decide to investigate a complaint, we make findings based on the balance of probabilities. This means that during an investigation we weigh up the available evidence and base our findings on what we think was more likely to have happened. In some situations, because we were not present at the time of events, we cannot confidently resolve different versions of what happened.
18. We also cannot decide what level or type of care is appropriate and adequate for any individual, or where that care should be provided. This is a matter of professional judgement and a decision that the relevant organisation has to make. Therefore, our work focuses on the way professionals make their decisions. If we do not find fault in how the organisation made its decision, we cannot question the outcome, even if we might have made a different choice.
19. Based on my review of the paperwork, the AMHP and two doctors all appear to have considered relevant information and applied it to the applicable tests set out by the MHA. It does not appear likely that an investigation would be able to find robust evidence that these professionals failed to follow the relevant processes before reaching their own professional judgements. Further, it would not be possible, from our independent perspective, to resolve the differing accounts of what was said by any given person throughout the assessment. It is, therefore, unlikely that an investigation would have a realistic chance of finding evidence of fault. Because of this, we will not investigate this complaint.

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Decision

20. We will not investigate Miss X’s complaint because it is unlikely an investigation would be able to find evidence of fault.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman