Summary: We will not investigate Ms X’s complaint the Council discriminated against her and unlawfully detained her. This is because there is not enough evidence of fault to justify investigating and we cannot achieve the outcome she wants. There is no good reason why Ms X could not take the matter to court.

The complaint

1. Ms X complained the Council discriminated against her and unlawfully sectioned her. She said the Council:
• failed to address the safeguarding concerns she raised about her father;
• unlawfully detained her; and
• restrained her when she became distressed and angry.
2. Ms X said the Council’s actions caused her avoidable distress. She is seeking an apology from the Council for breaching its duty of care towards her and is requesting financial compensation for her unlawful detention.

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The Ombudsman’s role and powers

3. The Local Government Act 1974 sets out our powers but also imposes restrictions on what we can investigate.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), 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 impact 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 or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• further investigation would not lead to a different outcome.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

6. I considered information provided by the complainant and the Council.
7. I considered the Ombudsman’s Assessment Code.

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My assessment

8. 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.
9. Ms X went to hospital with concerns about her mental health. There, she met Mr Y, the Approved Mental Health Professional (AMHP) on duty, who had arrived at the hospital to assess her.

Discrimination

10. Ms X stated that upon Mr Y’s arrival, he failed to carry out her assessment. She said he declined to speak with her after noticing she was breastfeeding and instead spoke with her family, whom she did not want involved in her mental health assessment.
11. In its complaint response, the Council explained Mr Y initially refrained from entering the room to respect Ms X’s privacy while she was breastfeeding. The Council stated that Mr Y’s actions were intended to ensure her comfort and were not meant to be discriminatory or to avoid the assessment.
12. The Council apologised to Ms X for not speaking with her first. It said it is standard practise to gather information from family as part of an assessment. It said the decision to detain her was not based on the discussion with her parents but based on her clinical presentation and potential risks. The Council said the AMHP assessed Ms X with input from two additional doctors in accordance with the MHA. Although Ms X is unhappy the AMHP did not speak to her first, there is not enough evidence of fault in how the Council conducted the assessment to justify investigating.
13. If Ms X believes Mr Y's actions led to discrimination by the Council, that would be a matter for the courts. We cannot decide if an organisation has breached the Equality Act as this can only be done by the courts.

Unlawful detention

14. Ms X said the Council unlawfully sectioned her because Mr Y did not inform her of her rights.
15. The Council apologised to Ms X it failed to inform her of its decision to section her straight away as preferred. It explained arrangements to admit her were put in place before fully informing her to help minimise her distress. Mr Y said he attempted to discuss Ms X’s rights with her, but she had already declined to engage with him further, making it impossible for him to provide this information.
16. Therefore, we will not investigate this part of Ms X’s complaint as it is unlikely further investigation would lead to a different outcome. In addition, if Ms X thought the Council sectioned her unlawfully, she could have appealed to the Mental Health Tribunal.
17. Ms X wants the Council to compensate her for personal injury caused by the unlawful detention.
18. We cannot decide if the Council sectioned Ms X’s unlawfully. We also do not consider claims around personal injury. That is a matter for insurance and the courts. Therefore it would not be unreasonable for Ms X to pursue her claim at court.

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Final decision

19. We will not investigate Ms X’s complaint because there is not enough evidence of fault to justify investigating and further investigation would not lead to a different outcome. There is no good reason why Ms X could not take the matter to court to achieve the outcome she wants.

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Investigator's decision on behalf of the Ombudsman