Decision Date: 6th February 2025
Summary
Mr B raised concerns about how an NHS Trust and its partner Council handled his assessment under the Mental Health Act, as well as the care he received while awaiting a hospital admission. The Trust was found to have failed to properly explain Mr B’s legal rights and status under the Mental Health Act, while the Council failed to abide by proper process during his several assessments over the course of several weeks.
What happened
In July 2023 Mr B, who was suicidal, was taken to a general hospital’s A&E by police (consensually). The hospital saw fit to arrange a Mental Health Act (MHA) assessment for Mr B. He left the hospital against the advice of staff before the assessment could take place.
The hospital reported that Mr B was missing, and when he was located by police he was held under a s136 order [presumably in a place of safety as required]. , returned to the hospital. Following his assessment it was decided by an approved mental health professional (AMHP) and two doctors that Mr B should be admitted to hospital for further assessment and incidental treatment under s2 of the Act.
However, there were no mental health beds available for Mr B so the assessment was not formally signed off. Mr B agreed to remain at the general hospital subject to close supervision until a bed became free.
After four days there was still no available bed for Mr B. He agreed to be placed into a short-term facility (Unit X) where he would need to wait until a bed was available. He asserted that it was inappropriate for his needs. Unit X was a “mental health crisis assessment facility” for stays of up to 23 hours whereas Mr B stayed for 11 days.
After two weeks had passed, a bed became available for Mr B at a mental health ward (Ward Y). Due to an error on the part of the AMHP regarding the expired validity of the recommendations, Mr B had to undergo another assessment on the following day to see if he still met the strict criteria for Mental Health Act detention. The outcome of this round of assessments suggested that Mr B should be admitted to the hospital for up to 28 days for assessment.
Mr B was subsequently admitted into Ward Y where he stayed for the allocated 28 days plus a voluntary stay of a further week; he was then discharged home.
What was found
Firstly, the Ombudsman considered the assertion that incorrect and misleading information had been provided to Mr B about the authorities’ powers under the Mental Health Act.
Mr B alleged that the professionals involved provided false and misleading information during conversations which he had found frightening and upsetting.
The Ombudsman noted that there were some conflicting accounts in the reports of the conversations between Mr B and the professionals, which may or may not have been related to the state Mr B was in (described as “fraught” by those involved).
The Ombudsman found that while the information shared with him certainly did have an effect on Mr B, the professionals were only seeking to provide him with the relevant information and acted within the guidelines when doing so. No fault was found there.
Secondly, the Ombudsman considered the inadequate information that was relayed to Mr B regarding his status under the MHA. Fault was found here.
Upon his original admission to the hospital, Mr B was never informed that his detention had not actually begun. It only began following his admission to Unit Y around 4 weeks after first being admitted.
Mr B frequently referred to himself as “sectioned” and no one corrected him. Prior to his reassessment and admission into Unit Y, Mr B was ‘liable to be detained’ meaning that Mr B was lawfully amenable to detention, but not formally detained.
Mr B also claimed that he took the medication Sertraline under duress, as a result of his thinking he was under detention when in fact he was not, and still had a choice.
The Ombudsman recorded that Mr B had agreed to take the medication following a conversation with his sister, a GP, with whom he had stated to the doctors that he planned to speak.
The report concluded that there was not enough evidence about the doctor’s descriptions of the side effects of sertraline to draw any conclusive findings as to what Mr B was in fact told. On that footing, given that this was not an action for civil assault by dint of lack of effective consent, and given that Mr B took the time to speak to his sister about it, no fault was found concerning the circumstances surrounding Mr B’s taking of the medication Sertraline.
The report found that the other faults amounted to injustice to Mr B. He suffered avoidable distress upon learning the actual status of his person under the Mental Health Act.
No fault was observed in the delay between Mr B’s original admission and his transfer to Unit Y. He had to wait around two weeks for a bed to become available; during the wait he was accommodated in Unit X, a short-term placement facility.
The Ombudsman acknowledged that there is an ongoing national shortage of mental health beds and found that while Mr B was certainly subjected to distress from this, it was hard to avoid, thus leading to a finding of no fault.
When Mr B was eventually admitted to Unit Y, the medical professionals did not realise that the findings from his original assessment were about to expire. This meant that Mr B had to undergo two assessments on back-to-back days. Mr B reported experiencing significant distress.
The Ombudsman reached a finding of fault there. The council should have been aware that the original assessment recommendations were expiring and the experience caused significant avoidable distress.
The investigator concluded that Mr B suffered a significant injustice in terms of his avoidable distress at learning his legal and human rights were not properly observed or protected during this period.
Lastly, fault was found in the manner with which the NHS and council handled Mr B’s complaints. Some of his complaints were not addressed at all while other responses lacked clarity and were disjointed. Mr B suffered avoidable inconvenience and frustration due to the nature with which his complaints were handled.
The report suggested a few remedies which both the NHS trust and local council must follow. Apologies were to be issued to Mr B along with a letter outlining to Mr B the changes that have been made to ensure another situation like this does not arise again.
In addition to this, both the Council and Trust were ordered to make payments totalling £900 to Mr B to recognise the distress and inconvenience caused by their failings.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
This was a joint investigation on behalf of the Parliamentary and Health service Ombudsman as well as the local government Ombudsman.
It led to a fairly high award on the distress tariff, underlining the seriousness of illiteracy in the legal framework which governs mental health professionals’ work.
On his first admission to hospital Mr B was described as going in voluntarily. At this point Mr B’s status would have been that of an informal s131 patient where he maintained the right to leave the hospital at any time.
A s136 detention (which was carried out following Mr B’s departure from the hospital, once he was found) can only be effected, under certain strict circumstances.
The detention must be deemed necessary in the protection of the person or protection of other persons. Also, a detention under s136 cannot be made in a private space. There, a s135 process must be effected.
Unfortunately, the ombudsman report is light on the facts surrounding the section 136 detention. It is clear law that the Mental Capacity Act and the notion of best interests. does not cover the actions of the police or anyone else if the circumstances were such as to make the more specific use of the more protective and strict regime applicable.
Section 2 of the Mental Health Act allows detention for up to 28 days and incidental treatment related to the assessment.
Medical Recommendations from the group of professionals required for assessments such as these are only valid as recommendations for 14 days after they are made. Any delays resulting in a wait of longer than 14 days require a reassessment to be arranged.
The MHA Code of Practice makes it very clear how full transparency concerning one’s legal rights must be communicated to the patient at all times (Paragraphs 4.15-4.18 reference guide).
It is not possible to abide by the transparency provisions of the Act and yet never be thought by a person to be threatening them ‘with a section’ nor never for the information to be misunderstood, in the context of the presentation of people needing to be sectioned for their own or society’s protection, in our view. The skill lies in doing what is required with patience and compassion and empathy so as to minimise the risk of it being frightening.
At the time, the Trust told the investigator that it had decided against an information leaflet for this scenario, as there were too many different situations and variables. However, the language used in this situation would be better off focusing on a status of “informal with recommendations for detention” instead of “liable to be detained”.
We note that the Trust said it planned to create an information leaflet for people “added to the bed waiting list with medical recommendations” but not currently detained.
The national shortage of mental health beds has been highlighted by the Care Quality Commission and NHS England, leaving patients in vulnerable positions in the community, and others being cared for in unsuitable environments for prolonged periods. The investigator received evidence that staff made strenuous efforts to secure a bed for Mr B, emailing the Trust bed managers daily to ask for an update on bed availability and including information about specific concerns about patients and any increasing risks, if applicable. Mr B was not flagged for a special urgency bed under s140 of the Act.
We think the law is actually as follows with regards to lack of a bed: The mental health code of practice states very clearly that mental health assessments should not be delayed due to a shortage of beds. In reality, delays occur frequently due to the severity of the bed shortage (other factors such as a lack of transport to take a patient to the hospital once a bed is found were also reported).
Despite this, there is no official justification for delaying assessments until a bed becomes available. This precedent was set in R v Managers of South Western Hospital (1983). The NHS and council are expected to work together in order to secure beds, even amid the national bed shortage. Failure to do so could result in human rights violations, particularly under section 5 of the ECHR (right to liberty).
The circumstances surrounding Mr B’s placement in a short-term facility for close to two weeks are in our opinion, considered a bit too lightly by the ombudsman. The MHA code of practice makes clear that while short-term arrangements are not illegal, their use should be minimised at all costs. The report recognises the national bed shortages, however it fails to note that, even amid this shortage, delays in assessments should not be made and a stay of two weeks in a short-term facility is far from acceptable.
Mr B’s complaints about the doctors who carried out the s12 MHA assessments had not ever been answered by either the Trust or Council: each organisation felt the other was responsible for responding. When a complaint involves both NHS and social care responsibilities, the organisations should co-operate to ensure the complainant receives a comprehensive and coordinated response addressing all the key issues and share information under the Local Authority Social Services and National Health Service Complaints (England) Regulations 2009. The NHS Complaint Standards also emphasise the importance of providing a through response to issues raised, and liaising with other organisations where appropriate. The investigator ensured that those aspects went forwards.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s West Sussex County Council (24 003 896) 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.
Did you enjoy this analysis? Want to stay informed with our weekly Alert Service?Then do click here to find out how you can receive the latest insights from experts and commentators and stay updated on key judicial decisions, ombudsmen’s reports, and critical law and policy changes, all for just £50 per YEAR and sent straight to your inbox or WhatsApp!