Complaints and the Mental Health Act Commission

Feature

posted 1 Nov 1998 in Volume 4 Issue 1

Complaints and the Mental Health Act Commission

"Any complaints arising out of the exercise for the power to detain, manage and control, and the duty to treat are complaints in respect of which the [Mental Health Act Commission] has jurisdiction. It seems to me that management, control and treatment all form part of the package of compulsion which is the essence of Section 3 detention which it is the duty of the Secretary of State to keep under review under section 120(1) of the [Mental Health] Act." R v Mental Health Act Commission ex p Smith1

The recent decision in R v Mental Health Act Commission ex p Smith, that the Mental Health Act Commission ("the MHAC") has the power to investigate complaints in relation to management, control or treatment of a detained patient, will be of major significance to detained patients and their relatives.

Background: the Mental Health Act Commission's power to investigate complaints

The main role of the MHAC is to keep the implementation of the Mental Health Act 1983 ("the Act"), so far as detained patients are concerned, under review. The MHAC does this through visiting hospitals and mental nursing homes where patients are detained under the Act; holding private meetings with any of the detained patients who wish to speak to members of the MHAC and reporting on the findings of such visits2.

Another important function of the MHAC is to investigate complaints on behalf of the Secretary of State3.

Section 120(1) of the Act states:

"The Secretary of State... shall make arrangements for persons authorised by him...

b) to investigate -

(i) any complaint made by a person in respect of a matter that occurred while he was detained under this Act in a hospital or mental nursing home and which he considers has not been satisfactorily dealt with by the managers of that hospital or mental nursing home; and

(ii) any other complaint as to the exercise of the powers or the discharge of the duties conferred or imposed by this Act in respect of a person who is or has been so detained."

In effect, the first type of complaint under section 120(1)(b)(i) allows the MHAC to investigate any matter raised by a detained or previously detained patient, provided that the patient has first exhausted the hospital's complaints procedures4.

The second type of complaint, under section 120(1)(b)(ii), can be made to the MHAC by anyone, without the need to refer this to the hospital managers, provided that such a complaint relates to "the exercise of the powers or the discharge of the duties conferred or imposed by" the Act.

The Code of Practice to the Mental Health Act 1983 stresses the important role staff have in providing assistance to any patient who wishes to make a complaint:

"Staff have the responsibility of bringing to the attention of all patients, both orally and in writing, the procedures for making a complaint through the hospital complaints system, and, in relation to detained patients, their rights to complain to the Mental Health Act Commission. If a patient is unable to formulate his complaint, he should be given reasonable assistance to do so by staff. It is the personal responsibility of all members of staff involved in a patient's care to give such assistance where necessary."5

Guidance issued by the NHS Executive on the NHS complaints procedures also makes clear that the patient should be given assistance in contacting the local community health council or other patient advocates who may be able to assist the patient in making the complaint6.

The scope of Section 120(1)(b)(ii)

It has been argued that the MHAC can only investigate complaints made by detained patients in connection with their detention if the patient has previously referred the complaint to the hospital managers, whether or not the complaint involves matters relating to the exercise of powers and duties under the Act7. However, this restrictive interpretation does not seem to be shared by the MHAC. Comments in the MHAC's most recent Biennial Report suggest that patients, as well as third parties, can request that the MHAC investigate complaints under the section 120(1)(b)(ii) of the Act:

"Where a complaint concerns an alleged failure in the exercise of powers or the discharge of duties under the Act, the Commission may investigate without requiring the complainant (who may be a third party) to take up matters first with the hospital managers. It is however, the Commission's practice generally to seek first a response from the unit concerned before deciding whether to conduct its own investigation."8

R v Mental Health Act Commission ex p Smith concerned another issue relating to the interpretation of section 120(1)(b)(ii) of the Act. Prior to this decision, the MHAC considered that it had a very limited remit in relation to complaints made under section 120(1)(b)(ii), taking the view that complaints under this sub-section excluded complaints relating to the care and treatment of detained patients.

If such an interpretation was correct, the MHAC had no power to investigate complaints made by relatives about the care and treatment of a patient following the patient's death. This is because although detained patients can request the MHAC to investigate complaints about any aspect of their care, subject to exhausting the hospital's own complaints procedure first, it has been generally accepted that such complaints cannot be made on behalf of a patient who has died9.

The MHAC was aware of the problems caused by this interpretation of its powers to investigate complaints under section 120(1)(b)(ii):

"The limitations imposed by the Commission's complaints remit can lead to frustration for relatives of detained patients who have died. Whereas the Commission can investigate any aspect of care and treatment when a complaint has been made by a detained patient and where the patient is dissatisfied with the response by hospital managers, it cannot do so when a complaint about aspects of care and treatment is made by a relative or other third party...

The Commission's remit in these cases is limited by statute to investigating "the exercise of the powers or the discharge of the duties conferred or imposed by this Act" (the Mental Health Act). This definition excludes matters relating to care and treatment and as complaints from relatives almost invariably are about aspects of care rather than about whether the provisions of the Act are complied with, a great deal of frustration is caused to all concerned.

Since the patient in such cases is no longer able to make a complaint about these matters, it could be argued that such an interpretation of the Act denies concerned relatives the opportunity of having them investigated by the Commission under its complaints remit."10

R v Mental Health Act Commission ex p Smith11

Just such a situation arose in the case of Smith. The family of a young man who committed suicide while he was detained under section 3 of the Act requested that the MHAC investigate their complaint, which involved four main areas of concern. These were summarised by the judge to be as follows:

(i) the patient's original detention was neither appropriate nor legal

(ii) the patient was inappropriately detained in a secure unit for a period

(iii) the patient was given drugs in such quantities that it was unlikely that he could have given consent and the level of dosage was inappropriate

(iv) the patient was inadequately cared for during his detention and his condition was not adequately assessed for the purpose of determining whether there was any risk of self-harm

The MHAC accepted that it had jurisdiction to investigate complaint (i) and a limited jurisdiction to investigate complaint (iii), but stated that it had no power to investigate complaints (ii) and (iv) on the basis that they did not engage an express power or duty under the Act. However, the judge disagreed. He considered that all four of the family's complaints fell under the MHAC's remit because they arose as a consequence of the patient's detention under the Act:

"Once the patient has been detained, he is essentially under compulsion. Bearing in mind the purpose for which the [MHAC] was established, I consider that it makes more sense to approach Section 120(1) on the basis that the rights and duties referred to are all those rights and duties which flow necessarily and by implication from a Section 3 detention, and such other rights and duties as are expressly identified in the Act."

However, as the judge in Smith noted, the Act provides that the MHAC has a discretion to decline to undertake an investigation of a complaint or to continue with such an investigation where the MHAC considers it inappropriate to do so. In its most recent Biennial Report, the MHAC12 described how it usually exercised this discretion:

"In practice, decisions are determined by such considerations as the quality of the investigation by the hospital managers, the seriousness of the complaint and the prospect of acquiring further relevant evidence (having regard to the time elapsed, witness availability etc.)."13

Where the complaint is made about an alleged failure in the exercise of powers or the discharge of duties under the Act (and thus falling within section 120(1)(b)(ii)), the MHAC generally first seeks a response from the unit concerned before deciding whether to investigate the complaint.14

Where the MHAC decides to exercise its discretion to investigate a complaint it:

"& may examine medical, nursing and Social Services records and interview the complainant and other persons concerned, but it cannot compel witnesses to come forward. The Commission subsequently provides a written report to the complainant which is copied to the Trust or Mental Nursing Home."15

Limits to the scope of section 120(1)(b)(ii)

Mr Justice Latham made clear in his judgement in Smith that the fact of detention is not in itself sufficient for a complaint to fall within the scope of section 120(1)(b)(ii):

"Further, the jurisdiction will not extend to any complaints which are unrelated to detention, management, control or treatment, for example food or bed linen, which are complaints which the patient himself would be entitled to ask the [MHAC] to investigate, provided that he did not consider that the complaint had been satisfactorily dealt with by the managers, pursuant to Section 120(1)(b)(i)."

Consequence of R v Mental Health Act Commission ex p Smith

Thus, following the case of Smith, the MHAC has the power to investigate complaints made by relatives or other concerned persons in respect of the care and treatment of detained patients who have since died if such complaints arose as a consequence of the patient's detention.

Equally, it would seem that the MHAC has the power to investigate complaints falling under section 120(1)(b)(ii) made on behalf of detained patients who lack capacity to complain. This is significant given that it has been suggested that complaints on behalf of patients without capacity to authorise others to make a complaint cannot be made under section 120(1)(b)(i)16.

Camilla Parker, the author is a solicitor and freelance consultant.

Footnotes

1. 1 CCLR 451

2. See the MHAC's 7th Biennial Report 1995-1997, The Stationery Office, 1997, Chapter 1.

3. Under section 121(2) the Secretary of State has the power to direct the MHAC to investigate complaints made under section 120(1). The MHAC was so directed under S.I. 1983 No 892.

4. See the MHAC's 7th Biennial Report 1995 - 1997, 117-8. The new NHS complaints procedure came into operation in April 1996 - see Complaints: Listening& .Acting ....Improving - Guidance on implementation of the NHS Complaints, Department of Health, March 1996

5. The Code of Practice to the Mental Health Act 1983, 2nd Edition, 1993, HMSO, London, paragraph 23.3

6. Complaints: Listening& .Acting & .Improving - Guidance on implementation of the NHS Complaints, Department of Health, March 1996, paragraph 4.21

7. See Eldergill, A., Mental Health Review Tribunals: Law and Practice, Sweet & Maxwell, London 1997,175

8. MHAC's 7th Biennial Report 1995-1997, The Stationery Office, London, 1997.

9. See Richard Jones, The Mental Health Act Manual, 2nd Edition, 1996, Sweet & Maxwell, 324. Furthermore, the Health Service Commissioner usually declined to investigate complaints relating to detained patients, due to an informal agreement reached between the MHAC and the Health Service Commissioner that if a complaint involved a issues relating to the patient's detention, the MHAC would intervene first. See MHAC's 4th Biennial Report, 1989-1991, HMSO, 1991, paragraph 5.4

10. MHAC 7th Biennial Report 1995-1997, The Stationery Office, 1997, 120

11. 1 CCLR 451

12. Section 120(2) of the Act

13. MHAC 7th Biennial Report, 1995-1997, The Stationery Office, 1997, London, 120

14. Ibid, 119

15. MHAC 7th Biennial Report 1995-1997, The Stationery Office, London, 1997

16. See Richard Jones The Mental Health Act Manual 1983, 2nd Edition, 1996, Sweet & Maxwell, 324.