Summary: We will not investigate Mr X’s complaint about the actions of the Council during the process of detaining Mr X’s son under Section 3 of the Mental Health Act 1983. The complaint is mostly against an NHS organisation and so more suitable for a different Ombudsman to consider. Even if we were to investigate the Council’s actions, we would be unlikely to find fault.

The complaint

1. Mr X complains about the way North Northamptonshire Council (the Council) and a hospital handled their decision to detain his son under section 3 of the Mental Health Act 1983. Specifically, he complains that he was not provided with sufficient information, as nearest relative, about his son’s mental health.
2. Mr X says he was unable to make an informed decision about whether a move to section 3 was in his son’s best interests and therefore left with no choice but to object. He also complains that the hospital took too long to provide the requested information when it was a time sensitive matter.
3. Mr X says this lack of information led to him incurring unnecessary legal fees, which he wants to be reimbursed for.

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The Ombudsman’s role and powers

4. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as NHS organisations. (Local Government Act 1974, sections 25 and 34(1), as amended)
5. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. This includes where it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

6. I considered information provided by Mr X, the Council, the NHS organisation and the Parliamentary and Health Service Ombudsman (PHSO). I also discussed the complaint with Mr X.
7. I considered the Ombudsman’s Assessment Code.
8. I shared this draft decision with Mr X and he had an opportunity to comment.

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What I found

Key legislation and guidance

Mental Health Act

9. Under the Mental Health Act 1983 (the 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 are either an Approved Mental Health Professional (AMHP) or the nearest relative, plus a doctor who has been specially approved in Mental Health Act detentions and another doctor. 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.

Section 2

10. The purpose of detention under section 2 of the Act 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.

Section 3

11. Section 3 of the Act is for the purpose of providing treatment. Detention under section 3 empowers doctors to detain a patient for a maximum of six months. The detention under section 3 can be renewed for another six months.

Mental Health Act – Code of Practice

12. Section 14.5 of the Code says ‘a person can be detained for treatment under section 3 only if all of the following criteria apply:
• the person is suffering from a mental disorder of a nature or degree which makes it appropriate for them to receive medical treatment in hospital
• it is necessary for the health or safety of the person or for the protection of other persons that they should receive such treatment and it cannot be provided unless the patient is detained under this section, and
• appropriate medical treatment is available.’
13. Section 14.59 of the Code says ‘before making an application for admission under section 3, AMHPs must consult the nearest relative, unless it is not reasonably practicable or would involve unreasonable delay.’

What happened

14. In 2016, Mr X’s son, Mr Y, suffered a brain injury. Mr Y has a history of alcohol and drug misuse.
15. In February 2020, Mr Y’s mental health deteriorated and he was detained under section 2 of the Act. Mr X was his son’s nearest relative. The nearest relative is a family member who has certain responsibilities and powers when a relative is detained under the Act. The nearest relative has the right to be consulted about the decision to section their relative and can object to that decision.
16. On 24 March, an AMHP, along with two doctors, assessed Mr Y under the Act. AMHPs are mental health professions who have been approved by a Local Authority to carry out duties under the Act including co-ordinating assessments and admissions to hospital. The assessment concluded that Mr Y’s detention should be extended under section 3.
17. The AMHP spoke with Mr X on the phone and explained reasons for the decision. Mr X felt unable to agree to the section 3 application as he said he had not had any updates about Mr Y’s admission over the last four weeks. He asked for written information about Mr Y’s treatment and progress since his admission. The AMHP agreed to ask the hospital to provide further information. Mr X sought legal advice.
18. On 25 March, Mr X had several phone calls with the AMHP and a doctor. He remained dissatisfied with the information provided and felt he had no choice but to object to an application to detain Mr Y further under section 3.
19. The hospital advised Mr X to submit a Subject Access Request to access the information and said they would respond within 30 days. The AMHP formally notified Mr X of a court application to displace him as nearest relative.
20. On 1 April, following legal advice, Mr X withdrew his objection. The hospital provided further information to Mr X in late April.

Analysis

AMHP’s actions

21. According to paragraph 14:64 of the Act’s Code of Practice (the Code) ‘when consulting nearest relatives AMHPs should, where possible:
• Ascertain the nearest relative’s views about both the patient’s needs and the nearest relative’s own needs in relation to the patient
• Inform the nearest relative of the reasons for considering an application for detention and what effect of such an application would be, and
• Inform the nearest relative of their role and rights under the Act’
22. The evidence I have seen from the Council suggests that, during his telephone calls with Mr X, the AMHP explained the section 3 application to Mr X and the AMHP’s views on why this was necessary. Mr X confirmed that the AMHP shared his professional opinion during the call. The assessment clearly records the reasons why the AMHP felt Mr Y met the criteria for section 3 and that the necessary treatment could only be provided in hospital.
23. The AMHP also recorded Mr X’s concerns about the application and Mr X was aware that his agreement was needed for the application to be submitted. There is no requirement in the Code of Practice for information about the section 3 to be provided to the nearest relative in writing, and it may not always be practical given the short time frame in which decisions need to be made. The evidence I have seen suggests that the AMHP acted in line with the requirements of the Code and any investigation by us into the AMHP’s actions is unlikely to find fault.
24. While Mr X felt he needed additional information to be able to make a decision about the section 3 application, the requested documents related to his wider concerns about the lack of updates regarding care and treatment provided to his son over the previous four weeks. This additional information was not held by the AMHP, who seems to have already provided the information required under the Code. The AMHP promptly passed Mr X’s request for further information on to the hospital and arranged for doctors to call Mr X. This was then for the hospital, as the organisation who held the information Mr X sought, to consider and respond to.
25. Mr X says that the AMHP may not have acted promptly enough on 25 March 2020 to ensure the section 2 was extended before it expired. It is not clear from the AMHP’s records why this was not applied for earlier in the day. However, I note that Mr Y was persuaded to stay the night voluntarily and by the morning, the section 2 had been extended. While this was frustrating for Mr X, we are unlikely to find any significant injustice arising from this concern as Mr Y was not discharged and therefore Mr X did not ultimately need to make arrangements for him.
26. Mr X disputes information within the hospital records which says Mr X made comments about his son during a phone call with the AMHP. The AMHP’s records do not reference the disputed comment and the AMHP no longer works for the Council, therefore he cannot be asked for his account. Therefore, we would be unable to say whether the AMHP told the hospital that Mr X made the disputed comment. If Mr X wishes to complain about how the hospital recorded this information, he can do so via PHSO.
27. Mr X has shared his view with me that AMHP’s actions are probably not pertinent to his overall concerns about the actions of the hospital and any errors likely had negligible impact on overall events. Mr X has confirmed that his primary concerns are about
• the hospital refusing to provide the requested information,
• a doctor completing an assessment after the section 2 was due to expire, and
• the hospital wrongly advising him to submit a Subject Access Request for the information, which took too long to respond to in a time sensitive issue.
28. These are health only issues which can be considered by PHSO.

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Final decision

29. We will not investigate Mr X’s complaint because it is mainly about the actions of an NHS organisation. The Local Government and Social Care Ombudsman cannot investigate the actions of the NHS organisation. Mr X’s concerns about the actions of the hospital are health only complaints which can be considered separately by PHSO.
30. Based on the information I have seen, the AMHP seems to have acted in line with the requirements of the Code when sharing information with Mr X about the section 3 application. As such, we would not investigate this part as we would be unlikely to find fault.
31. We are unlikely to satisfactorily resolve Mr X’s other concerns about the AMHP’s action and there appears to be little claimed injustice arising from these actions.

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Investigator's decision on behalf of the Ombudsman