Summary: Dr C complained about a Mental Health Act assessment. We consider Dr C’s complaint is late. In any event, we are unlikely to find fault with the issues complained about.

The complaint

1. Dr C complains about a Mental Health Act assessment in August 2023. Specifically, an Approved Mental Health Professional (for Oxfordshire County Council) refused her request to have a lawyer present. Also, the Section 12 doctors (for NHS Buckinghamshire, Oxfordshire and Berkshire West Integrated Care Board) built an unfair picture of her when they recommended to detain her under Section 2 of the Mental Health Act. Dr C says the events have impacted her professional and social life and is now planning to leave the UK. She would like an apology from the organisations and a symbolic payment to reflect the injustice she has suffered.

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The Ombudsmen’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4))
3. 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. (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

4. I considered evidence provided by Dr C as well as relevant law, policy and guidance.
5. Dr C had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Relevant law and guidance

6. 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 to carry out Mental Health Act assessments (Section 12 doctors). 
7. The AMHP is responsible for deciding whether to go ahead with the application to detain the person and for telling the person. They are also responsible for providing information about the proposed detention to the person’s Nearest Relative. Any admission to hospital under the Mental Health Act should be in the best interests of the person and they should not be detained if there is a less restrictive alternative. Local authorities are responsible for the actions of AMHPs.  
8. When Section 12 doctors make recommendations under sections 2 or 3 of the MHA, they are acting under powers which have been given to them under the MHA. Ultimately, the doctors are providing their medical recommendations on behalf of the NHS. Because of this, the Parliamentary and Health Service Ombudsman can consider complaints about this work.
9. In August 2023, neither of the Section 12 doctors were working on behalf of the NHS Trust that detained Dr C under Section 2. The ICB had a legal responsibility to pay the Section 12 doctors for attending to complete the MHA assessment. The ICB is therefore the responsible commissioner. This explains why we are investigating the ICB, and not the NHS Trust.
10. The purpose of detention under Section 2 of the Mental Health Act 1983 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.
11. People who have been detained under the MHA (or their nearest relative) 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

12. On 13 August 2023, the Police attended Dr C’s house following an allegation that she had assaulted her partner. The Police requested a Mental Health Nurse from a Mental Health Trust (not subject to this investigation) assess Dr C. The Nurse felt Dr C suffered with mental health issues, lacked mental capacity and refused support in hospital. Therefore, the Nurse decided it was in Dr C’s best interests to move to the Emergency Department at a Health Trust (not subject to this investigation). That move happened in the early hours of 14 August. The Nurse also referred Dr C for a MHA assessment.
13. On 14 August 2023, the AMHP convened the MHA assessment in the afternoon. Following recommendations from two Section 12 doctors, the AMHP recommended to detain Dr C under Section 2 of the MHA. The next day, the Hospital Trust detained Dr C and moved her to a ward at the Mental Health Trust.
14. Dr C complained to the Mental Health Trust a week later. The Mental Health Trust responded to the complaint in January 2024. A month later, Dr C raised extra complaints to the Trust. The Trust responded to those in March 2024.
15. Between March and September 2024, Dr C and the Mental Health Trust corresponded about a request for copies of her records.
16. Dr C approached the Ombudsmen in late October 2024.

My view

17. I consider this complaint is late. I will explain why.
18. Dr C complained to PHSO over 12 months from the date of the MHA assessment – when she was aware something had gone wrong. The Trust referred Dr C to PHSO in March 2024. After then, Dr C told us they had to wait for evidence from the Mental Health Trust before she could file her complaint. I do not consider it was proportionate for Dr C to need her records before putting in her complaint to PHSO. I can understand why she wanted her records, but she already knew something had gone wrong, and should have complained to PHSO before August 2024.
19. Overall, I am not persuaded Dr C has provided good reason she took longer than 12 months to complain to the Ombudsmen after August 2023.
20. In any event, even if I did not consider Dr C’s complaint late, I do not consider we would likely find fault.
21. Dr C said she was not offered the chance to have a lawyer present during the MHA assessment. In response, the AMHP said it was not common to tell people of their right to legal representation or an advocate, unless in certain situations. That is correct. People do not have a right to legal representation during MHA assessments. So, I am unlikely to find fault with the AMHP for not allowing an advocate or lawyer to attend the assessment.
22. Dr C also said the Section 12 doctors built an unfair picture of her. I am not likely to find fault with the way the Section 12 doctors assessed her. They recorded her symptoms of a mental disorder, the risks to herself and others, and detailed her concerning behaviour. The evidence showed Dr C could not decide to agree to an informal admission and had refused support from the local community mental health team. That was in line with the Mental Health Act: Code of Practice.
23. I understand Dr C has concerns about the accuracy of the Section 12 doctors’ records. It would be for the Information Commissioners Office to consider any issues about information governance, including the accuracy of her records.
24. Fundamentally, Dr C does not agree she should have been detained under Section 2. She had a right of appeal to the Tribunal to challenge that decision. Dr C said she struggled to get phone signal in hospital to contact a lawyer to challenge the detention. I understand that would have been frustrating, but that would not be fault on the AMHP or Section 12 doctor’s part. In the end, Dr C’s nearest relative applied to discharge her, which was successful.

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Decision

25. I will not investigate Dr C’s complaint because she has not provided good reason for approach us late.

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Investigator's decision on behalf of the Ombudsman