Decision Date: 30 October 2024
Summary:
The LGSCO found fault with North Somerset Council, as its Approved Mental Health Professional (AMHP) failed to disclose to a Nearest Relative his right to oppose his daughter’s detention under s3 of the Mental Health Act 1983. The LGSCO also found fault with Avon & Wiltshire Mental Health Partnership NHS Trust’s failure to record reasonable adjustments for Miss X’s processing/communication needs in relation to her autism, whilst noting that this did not cause injustice in all the circumstances.
What happened
Miss X, who has anorexia and is autistic, was admitted to the Bristol Royal Infirmary in April 2022 due to weight loss. Doctors initially considered treating her anorexia under the Mental Health Act (MHA), but her father, Mr X, disagreed. After discussions with Miss X, Dr A and Dr B referred her for an MHA assessment. The AMHP and two s12 doctors decided to detain her under Section 3 of the MHA to feed her via a nasogastric tube, claiming it was the least restrictive option to save her life.
By April 25, three days later, the Trust stopped nasogastric feeding and switched to highly nutritious drinks, which Miss X accepted. In mid-July, Miss X remained under Section 3 and her solicitor applied for a Tribunal hearing to challenge her detention, and sought a judicial review against the Trust and the Council for the decision to detain her.
In late August, the solicitor decided against a judicial review but requested an apology from the Council, which was refused. Miss X was eventually discharged from Section 3 in mid-September.
In response, Mr X filed a complaint to the LGSCO, claiming that:
- In the discussion leading up to Miss X’s referral to the MHA assessment, the Trust failed to make reasonable adjustments for Miss X’s processing needs resulting from her autism, breaching the Equality Act 2010. Particularly, the doctors continued to ask her questions despite her requests to stop without allowing parental support or an advocate.
- The outcome of the MHA assessment was predetermined, with the decision to feed his daughter via a nasogastric tube already made by the AMHP and s12 doctors, without fully considering less restrictive options. This was in violation of the Human Rights Act 1998. The AMHP failed to properly assess Miss X’s capacity and failed to inform Mr X of his rights as her Nearest Relative, preventing him from opposing her detention.
- The decision to detain his daughter under s3 of the MHA contributed to a deterioration in her mental health, including a suicide attempt in early 2023.
Accordingly, Mr X sought an apology from both the Trust and the Council, improvements in their service and a financial remedy.
What was found
Reasonable adjustments made by the Trust:
The LGSCO found that the Trust understood Miss X’s autism-related communication needs, but had failed to document her needs or make them easily accessible to staff as required by its local policy, which was considered a fault.
During the meeting, Miss X struggled to express her views, requesting her mother’s presence for support and asking for the interview to stop, but it continued for another 15 minutes.
Upon enquiry from the LGSCO, the Trust explained that the doctors acknowledged her request but chose to continue due to the seriousness of her condition and the life-threatening risk posed by her malnutrition.
Mr X claimed the Trust did not invite him to the meeting, while the Trust stated they had invited him but he could not attend until the afternoon. There was a difference in recollection, but without clear evidence, it could not be determined why Mr X missed the meeting. Mr X also disagreed with the presence of a female mental health nurse, as Miss X did not trust or know the nurse. The Trust argued they had no staff member familiar with Miss X, so they invited a female nurse experienced in autism to provide support. Regarding the meeting duration, Mr X believed the Trust had not set aside two hours, but the Trust maintained the meeting finished on time, and they would have reconvened if needed.
The LGSCO thus concluded that the Trust attempted to provide the best support it could in compliance with the Equality Act 2010. It nevertheless recommended the Trust to remind the staff of their responsibility to record reasonable adjustments in line with its policy and to prevent similar faults from reoccurring.
Decision of the AMHP to detain on behalf of the Council:
The LGSCO cannot challenge the legality of the decision to detain Miss X under Section 3 of the MHA and thus did not investigate further, recommending Mr X to resolve this through the High Court if he so desired.
The LGSCO found the AMHP’s records to indicate that Mr X had agreed with the decision to detain his daughter under s3 of the MHA and would not object. However, the AMHP did not inform Mr X of his rights to object to the detention, as required by the Code of Practice (Chapter 14.64). While this omission may have been due to Mr X’s agreement with the decision, it was still a fault.
Mr X later stated that had he been informed of his rights, he would have objected to the detention. Although it was unclear what the outcome of any objection would have been, the AMHP’s failure to disclose this prevented him from exercising his rights and caused injustice. The LGSCO thus recommended that the Council apologise for the frustration caused.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
The whole of Chapter 4 of the Mental Health Act Code of Practice deals with Information Rights for patients, Nearest Relatives, carers and others, (chapter 4.31 onwards for Nearest Relatives) so to a certain extent it is hard to find injustice in a scenario where anyone interested in the welfare of a relative is complaining about not being provided with the information – it doesn’t have to be explained in any way other than just being steered to or recited.
However, it’s full of nuance and we can fully understand the difficulty of understanding it in a crisis and the LGSCO’s investigator’s reluctance to speculate how matters would have turned out, had the father been informed of his rights; the nasogastric feeding stopped after 3 days.
The Mental Health Act Code of Practice reminds all professionals that
“4.2 Effective communication is essential in ensuring appropriate care and respect for patients’ rights, and those responsible for caring for patients should identify any communication difficulties and seek to address them.”
Chapter 4.48 contains a specific requirement that there be an information policy so that a record is kept of the information given, including how, when, where and by whom it was given, and an assessment made of how well the information was understood by the recipient. The Ombudsman’s investigator does not mention this requirement.
Chapter 14.59 underlines that 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.
Chapter 14.64 of the MHA Code of Practice requires the AMHP to inform the Nearest Relative of their rights under the Act. The failure to inform Mr X of his right to object to Miss X’s detention was thus a critical omission.
Chapter 14.65 makes it absolutely clear that if the Nearest Relative objects to an application being made for admission for treatment under section 3, the application cannot be made.
If it is thought necessary to proceed with the application to ensure the patient’s safety or that of others and the Nearest Relative cannot be persuaded to agree, the AMHP will need to consider applying to the county court for the Nearest Relative’s displacement under section 29 of the Act (see paragraphs 5.7 and 5.11 – 5.24).
The Equality Act 2010 requires NHS trusts to make reasonable adjustments for disabled individuals to ensure they can access services as closely as possible to the standard provided to those without disabilities. While the LGSCO cannot find that an organisation has breached the Equality Act, it can find fault if the organisation fails to consider its duties and assess whether the organisation properly considered an individual’s rights in its treatment of them. Accordingly, while the LGSCO cannot conclude whether or not reasonable adjustments for Miss X were made, it was able to find that the Trust failed to appropriately record her processing needs and the reasonable adjustments she required.
Under the Mental Health Act 1983, individuals with a mental disorder who pose a risk to themselves or others can be detained in hospital against their wishes. Typically, three professionals—an Approved Mental Health Professional (AMHP) and two s12 doctors—must agree on the need for detention.
The Ombudsman does not have the power directly to pass judgement on the legality of the AMHP’s decision to detain a person under s3 MHA.
Rather, those detained can apply for a hearing to the First-Tier Tribunal (Mental Health) if they disagree with the decision, and seek further remedies relating to the conditions for detention at the time the decision was first made by bringing an application for judicial review to the High Court. The right to apply to a Mental Health Review Tribunal is not an alternative remedy which precludes this (it being a principle of judicial review that other avenues of appeal are exhausted first) because the Tribunal considers not the lawfulness of the original detention but the position of the patient at the date it meets.
In terms of reasonable adjustments, the Commission for Equality and Human Rights says in its resource about people’s rights when detained under the Mental Health Act in England that if a person is autistic, they should be able to access sensory rooms or quiet spaces when they feel overstimulated and/or to get the help of a keyworker with expertise in autism. The duty aims to make sure that a disabled person can use a service as closely as is reasonably possible to the standard usually offered to people without disability. When the duty arises, a council must take steps to remove or prevent obstacles to accessing its service. If the adjustments are reasonable, it must make them.
Here, the Trust had an accessible information policy to ensure it met information and communication support needs. There was no evidence that it complied with its own policy.
In our view, there is no rationale for the investigator’s conclusion that there was no impact on the person given the continued questioning of her after she had said she needed support. She had said that she wanted her mother to be able to be present. The doctors recalled her asking to stop the interview but ‘wanted to work through her anxiety’ and that seems inconsistent with the plea to the urgency of the situation.
‘Nearest relative’ is not the same as the next of kin. The next of kin has no rights under the Mental Health Act. ‘Nearest relative’ is a legal term used in the Mental Health Act 1983, and the scope of the definition is set out in a hierarchy. The father in this case would likely have been the older of this woman’s parents if she had two living parents.
One’s Nearest Relative will have some legal rights. Most of these rights can only be used if one is detained in hospital under the Mental Health Act.
One’s Nearest Relative can ask for a Mental Health Act assessment and thus commence the process of getting a professional’s opinion regarding the need for detention.
One’s Nearest Relative can apply to discharge one from the Mental Health Act.
An application can be made to the County Court to have one’s Nearest Relative removed or changed.
The Nearest Relative does not have the right to be told everything about the person being considered for detention. This could include information about what treatment one is having. Health professionals should not just tell one’s Nearest Relative, next of kin or carer, general information about one without one’s consent. The Nearest Relative has specific rights, and outside of that, their rights are the same as anyone else’s and governed by the MCA if a person is lacking in capacity – so to be consulted, if appropriate, as a person interested in the person’s welfare, at the very least, if having no closer involvement or legal authority such as a welfare power of attorney. Rights to information about the person are different from the Nearest Relative’s statutory rights to information about the situation. For instance, the AMHP should tell one’s Nearest Relative what rights they have to discharge one from the Act (the right is subject to the responsible clinician’s intervention). Hospital managers should give the Nearest Relative copies of information about the individual’s rights too.
One can be discharged from hospital by certain people, e.g. one’s Responsible Clinician or one’s Nearest Relative.
One’s responsible clinician should discharge one if they don’t think that one meets the conditions of being under the Mental Health Act any longer.
One’s Nearest Relative has the right to get information about the person’s detention and their discharge; object to the person being detained under section 3; be involved in the person’s care and treatment, and to discharge the person from hospital, subject to other checks and balances.
The AMHP must consult with one’s Nearest Relative before one can be detained for treatment under s3 other than in exceptional circumstances. AMHPs should record their reasons if they do not consult with the person’s Nearest Relative.
This matters a good deal because detention under s3 cannot go ahead if the Nearest Relative disagrees with the decision, unless or until they are discharged by the County Court from the role.
One’s Nearest Relative has the right to ask for an Independent Mental Health advocate for the person liable to detention.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s North Somerset Council (23 012 177) report.
If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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