Summary: the complainant, Mr X, complained the Council failed to properly assess his mental health needs within the time set by the Council’s guidance or properly consider his complaint. The Council accepted some fault and apologised. We found the Council at fault and recommended an apology, payment of £200 and sharing the decision with staff to improve services.

The complaint

1. The complainant, whom I shall refer to as Mr X, says the Council failed to properly assess his mental health needs. Including his reasons for writing a suicide note or record his objections to information set out in reports which the Council then relied on when recommending action. Mr X says this led to his discharge earlier than he should have been, possibly denying him further services.
2. Mr X says the Council further failed to properly consider his complaint about its handling of his mental health assessment, address his concerns or offer a suitable remedy.
3. Mr X wants the council to reflect his objections on his file in reports used and to recognise the impact on him.

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The Ombudsman’s role and powers

4. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
5. If satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. In considering this complaint I have:
• Contacted Mr X and read the information presented with his complaint;
• Put enquiries to the Council and reviewed its response;
• Researched the relevant law, guidance, and policy;
• Shared with Mr X and the Council a draft decision and reflected on any comments received before reaching this final decision.

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What I found

The law, guidance, and practice

7. The Mental Health Act 1983 (MHA) sets out when an individual can by law be admitted, detained, and treated in hospital against their wishes.
8. A person detained under Section 136 of the Act will need a Mental Health Act assessment to decide the treatment and care they need. Approved Mental Health Professionals carry out the assessments. They may decide what care the person needs and whether to apply for compulsory admission to hospital.
9. Anyone detained under Section 136 of MHA should be assessed within 24 hours and this can be extended to 36 hours where necessary.
10. Section 26 MHA sets out a duty to identify and appoint a ‘nearest relative’ for a person detained under the Act. The MHA Code of Practice says “…consulting and notifying the nearest relative is a significant safeguard for patients”. The Code continues by saying that the patient’s wishes about whether to involve their nearest relative much be considered, but those wishes will not decide if it is “…reasonably practicable to consult the nearest relative”.
11. The Mental Capacity Act 2005 sets out the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to assess them, and how to decide issues on behalf of someone who cannot do it for themselves.
12. A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:
• because he or she makes an unwise decision;
• based simply on their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
13. The Council has adopted the “Kent and Medway Crisis Care S136 Standards” which sets out a pathway protocol for adults, children, and young people. Under these standards the Council says it should assess a person detained under S136 within four hours of detention.

What happened

14. Mr X has diagnosed mental health conditions. On 12 October 2019 police found Mr X on a bridge. Mr X said he had left a suicide note in his car. The Police using S136 MHA took Mr X to the Place of Safety Suite at 8.20 in the evening. A duty doctor examined Mr X and declared him fit for an MHA assessment. The doctor referred Mr X to the Approved Mental Health Professional service for assessment.
15. The MHA assessment took place the next day, 13 October 2019 at 11.00am. The Council says due to severe weather affecting road travel and the high number of referrals received it could not assign Mr X’s assessment until 8.30am on 13 October 2019. The motorway had closed affecting travel arrangements for staff. The Council says Mr X’s assessment took place within the statutory time target of assessment within 24 hours (the assessment took place within 15 hours of his detention). However, it accepts it did not assess him within the four-hour target set by the “Kent and Medway Crisis Care S136 Standards”.
16. Before the assessment Officer Y, the Approved Mental Health Professional spoke with Mr X’s mother as his nearest relative. Officer Y read through Mr X’s notes and in her report set out Mr X’s history. Officer Y’s report says she assessed Mr X as having mental capacity. The professionals decided they did not need to admit Mr X to hospital. The records show Mr X agreed to a referral to mental health services where he would benefit from an assessment for psychological support. The service directed Mr X to CRUSE for bereavement counselling. Mr X’s mother collected him, and he returned home.

Mr X’s complaint

17. Mr X complained to the Council about the conduct of the assessment. The assessment he says did not take place within the four-hour target but took 15 hours, meaning he had to remain in the Place of Safety Suite for longer than he should. This Mr X says added to his anxiety and stress. The decision to speak with Mr X’s mother also caused him concern because he had asked staff not to contact her. Mr X felt Officer Y and other staff ignored his wishes. Officer Y did not discuss the suicide note or Mr X’s reasons for writing it. Mr X says this meant Officer Y did not fully understand how he had felt and did not explore fully with him what caused him to write the note. If she had Mr X wonders if the Council would have offered further services or directed him to another agency for help. Further Mr X says Officer Y made inappropriate remarks to him which caused offence but also discouraged Mr X from engaging fully with Officer Y.
18. In considering Mr X’s needs and possible services Officer Y’s report shows she considered Mr X’s history. Mr X says inaccurate information on his records influenced the decisions made. Mr X wants the Council to amend the reports.
19. In responding to Mr X’s complaint, the Council accepts fault in that:
• The Council failed to meet its guidance and complete Mr Y’s assessment within four hours;
• Officer Y did not discuss with Mr X his suicide note, or why Mr X had written it;
• Officer Y made inappropriate statements to Mr X and;
• The Council did not respond to the complaint without delay.
20. The Council apologised for these faults. It did not accept fault in speaking with Mr X’s mother against his wishes. The Council says it followed guidance and that speaking to Mr X’s mother provided a safeguard for him.
21. Mr X disputes some information in the report which he says collates into one incident several separate events which make that one look far more significant. The Council says it cannot amend or revise Officer Y’s report. However, it has on file Mr X’s views on the report, so both are available to anyone offering support to him. Therefore, the Council says it did not uphold this complaint. The Council accepted Officer Y made inappropriate comments but did not accept this amounted to being disrespectful or discriminatory towards Mr X.
22. The Council says it cannot accept Mr X’s complaint it failed to follow up whether a partner agency had referred him to the Community Mental Health Team. The Council says that duty fell to a partner agency over which it has no control.

Analysis - was there fault causing injustice?

23. My role is to consider how the Council managed Mr X’s assessment at the Place of Safety. If I find fault, I must decide what injustice arose and how the Council should put it right.
24. Where the Council accepts fault, I must decide if any remedy offered meets the expectations set out in our ‘Guidance on Remedies’.
25. The Council accepted fault in handling Mr X’s assessment. I find the Council acted with fault in the four areas it has accepted.
26. I also find the Council at fault for not following best practice and following up with the agency tasked with referring Mr X to mental health services. This resulted in the Council not knowing whether Mr X had accessed services through that route, and if not successful whether he may need Council services.
27. The Council accepts Officer Y made inappropriate comments and has taken action to help Officer Y learn from that fault. I find making inappropriate comments is fault and shows a lack of respect for Mr X. This experience may present a barrier to him accessing services in future if he fears a repeat of this experience.
28. An apology to Mr X goes some way to recognising the impact of the faults on him. However, he had to stay overnight in the Place of Safety and then leave without having all his needs addressed through discussion of his suicide note. The Council says it is unlikely it would have provided any further services had Officer Y explored the suicide issues with Mr X, but he will never know. That causes further barriers to accessing services in future. Any remedy should recognise that negative experience and its possible effects.
29. Therefore, I recommended a remedy the Council has accepted which I believe better reflects the impact on Mr X and is in line with our ‘Guidance on Remedies’. That guidance recommends a symbolic payment on a scale between £100 and £300 for distress caused and for delay in dealing with a complaint.

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Agreed action

30. To address the injustice to Mr X the Council agrees to within four weeks of my final decision:
• Apologise in writing to Mr X for the faults identified;
• Pay Mr X £200 in recognition of the avoidable distress caused to him;
• Share this decision with officers to encourage reflection on the impact of failing to properly assess vulnerable patients which may discourage them in future from accessing the services they need.

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Final decision

In completing my investigation, I find the Council at fault for which it has agreed a proportionate remedy.

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Investigator's decision on behalf of the Ombudsman