Mersey Care NHS Foundation Trust

6. Mr E complains about the actions of the Trust on 17 June 2024 when it assessed him under the Mental Health Act 1983. Mr E complains the assessment was performed against his will.

7. Mr E also complains about the section 12 doctor’s behaviour throughout the assessment, he says the doctor was intentionally trying to aggravate him and misrepresenting his Tourette’s compulsions as being a choice.

8. Mr E says the experience caused him significant emotional distress, which has prevented him from returning to the Trust. The Trust was a place he previously sought mental health support.

9. Mr E says the section 12 doctor’s behaviour meant his condition was misrepresented.

10. By bringing this complaint to us, Mr E seeks an apology, accountability and service improvements.

11. Following a referral from Mr E’s local council, the Trust performed a Mental Health Act assessment (MHAA) on him on 17 June 2024.

12. The assessment was carried out by two section 12 NHS doctors, organised by an approved mental health professional (AMHP) working on behalf of the council. These healthcare professionals assessed whether Mr E required hospitalisation on account of his mental health.

The Mental Health Act Assessment (MHAA)

16. Before we decide if we should conduct a detailed investigation of a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. We have done this and have not found any indications of failings. We will explain the reasons for our decision in detail below.

17. Mr E told us he did not want to do a MHAA and said the Trust carried this out against his will.

18. In response to the complaint, the Trust acknowledged the MHAA was carried out against Mr E’s will. The Trust explained this was in line with the MHA legislation and there was no wrongful practice identified. The Trust explained professionals considered Mr E to be a risk to others at the time of the assessment.

19. Our adviser explained that the Trust acted appropriately in performing a MHAA of Mr E. They said it was in line with the Good Medical Practice (GMC) guidelines and the MHA itself to perform the assessment.

20. Section 13.1 of the MHA says, ‘If a local social services authority have reason to think that an application for admission to hospital or a guardianship application may need to be made in respect of a patient within their area, they shall make arrangements for an approved mental health professional to consider the patient's case on their behalf’.

21. As such, in line with this statute, the local authorities and its representing AMHP had powers to at least arrange an assessment of Mr E under the MHA. We recognise that an application for hospital admission was not required in Mr E’s instance, however the act gives duty to arrange an assessment when necessary. The Trust were therefore following legitimate instruction, under the MHA, from the AHMP when performing the MHAA.

22. Our adviser said it was reasonable for the AHMP to arrange and thus for the Trust to engage with a MHAA, for the following reasons.

23. We see from the records, which aspects of Mr E’s behaviour led to the Trust performing an assessment of him. It is evident professionals were concerned Mr E was a potential a risk to himself and others. In light of this behaviour and in conjunction with the concerns about a mental disorder being present, our adviser deemed the MHAA to have been necessary on behalf of the Trust.

24. We appreciate Mr E says the assessment was performed against his will and GMC guidelines say adults with capacity may refuse treatment. However, the GMC’s seven principles of decision making and consent does recognise that a patient’s ability to consent can be legally restricted. Our adviser said a patient’s consent is rarely sought for a MHAA because of the legal duty to assess.

25. The MHA is legislation by which a patient’s right to consent can be legally restricted. This type of intervention can be made for the health of the patient, for the safety of the patient and for the protection of other people. Our adviser was satisfied the medical records show these criteria were met. We recognise that although the grounds for assessment were met, the legal criteria for dentition were not. When staff completed the MHAA they decided Mr E did not meet the criteria for detention in hospital.

26. It is also evident from the records that Mr E had been under a section 136 on ten separate occasions. This is a power under the MHA that allows the police to remove a person who appears to have a mental disorder from a public place to a place of safety so they can be assessed by mental health professionals. With this history in mind and in light of Mr E’s behaviour shortly prior to the assessment, we consider it was reasonable for the assessment to have been ordered and performed.

Section 12 doctor’s behaviour throughout the assessment

27. As previously mentioned, when we look at a complaint, we look at whether there are signs the organisation has got something wrong. We do this by comparing what should have happened with what did happen. Sometimes, where there is a lack of information or evidence available, we are unable to say what did happen, meaning we cannot reach a decision on the balance of probabilities as to whether anything went wrong.

28. In this case, we have been unable to reach a decision on whether the way the section 12 doctor communicated with Mr E was inappropriate.

29. Mr E says the doctor was condescending, intentionally aggravating and unwilling to acknowledge his Tourette’s compulsions to be compulsions, rather than a choice. We can see from the AMHP report Mr E’s Tourette’s is acknowledged. We cannot comment on the doctor’s perception of this, nor any comments he made to Mr E regarding this, as we see no evidence of this within the report.

30. Whilst we appreciate how frustrating it must have been for Mr E to feel as though the doctor did not fully recognise his condition, we cannot see from the evidence available the level of care and appreciation his condition received in this instance.

31. We do see from the report, the AMHP considered the section 12 doctor’s assessment to have been performed with a ‘neurodiverse lens’ to ensure Mr E’s participation.

32. We have also considered the attitude of the doctor towards Mr E as part of the complaints process. We again looked at the AMHP’s mental health assessment report made on 17 June 2024.

33. This report documents what was discussed between Mr E, the AMHP and the section 12 doctor. However, it would be impossible for us to determine the tone, demeanour and attitude of the doctor throughout Mr E’s assessment from this evidence. As such it would be equally impossible for us to say if the doctor was behaving in a condescending way, laughing or even trying to aggravate Mr E. The reasons for this can be seen in paragraph 27.

34. Whilst we cannot determine the doctor’s behaviour during Mr E’s assessment, we can see the Trust has taken steps to fully address the complaint. It provided a complaint review report on 4 November 2024, documenting its findings and the learning it has taken from Mr E’s complaint.

35. Whilst the Trust did not fully uphold any part of Mr E’s complaint, it did recognise Mr E may have benefitted from an appointment with a familiar practitioner who was aware of his historic presentation. As such, this may have resulted in a less restrictive approach to assessment.

36. We appreciate Mr E wanted accountability from the Trust. We recognise it must have been disappointing for the Trust to stand by the doctor’s actions and behaviour.

37. We have no reason to disbelieve Mr E, nor do we have any reason to disbelieve the Trust. We have two conflicting versions of events here and no independent evidence to allow us to make an evidence based decision on whether anything went wrong.

38. We hope we have explained why we are unable to reach a decision on the behaviour of the section 12 doctor in this instance and as such, we will not be taking this complaint forward to a detailed investigation.

1. We have carefully considered Mr E’s complaint about the Trust. We are sorry to hear about the very difficult time Mr E has clearly experienced. We would like to thank Mr E for sharing the details of his concerns, as we know this may have been distressing for him.

2. Having considered Mr E’s complaint, we have seen the Trust acted in line with the relevant law and guidance when carrying out an assessment under the Mental Health Act 1983.

3. We recognise Mr E has concerns about the Trust’s actions and what happened caused him significant distress. We do not underestimate how challenging this experience must have been for him. We hope our later explanations clearly explain our conclusions on this matter.

4. Mr E also complains about the section 12 doctor’s behaviour throughout the assessment, he says the doctor was intentionally trying to aggravate him and misrepresenting his Tourette’s compulsions as being a choice.

5. We explain below how we thought about the evidence we have seen and reached our decision.