3. Dr J complains a mental health nurse from the Trust gave incorrect advice to the police, who had attended her home following a 999 call on 13 August 2023.
4. Dr J says as a result, the police unnecessarily removed her from her home under the Mental Capacity Act. Dr J says this was very disconcerting, disheartening, distressing, and traumatic for her.
5. As an outcome, Dr J wants the Trust to apologise to her.
6. The police attended Dr J’s home after a neighbour reported witnessing a domestic disturbance. The police sought support from a mental health nurse from the Trust because of concerns about Dr J’s mental health.
10. When we consider whether there is an indication of a failing in the care and treatment complained about, we first determine what should have happened in line with relevant policies, guidelines, standards and good clinical practice. We then use all available evidence to determine if we can say what should have happened, did happen. If it did not, we then consider if what did happen fell so far short of what should have happened that it amounts to an indication of a failing.
11. Only if we identify an indication of a failing in the care and treatment provided, do we then consider the impact of this failing.
12. Dr J complains a mental health nurse from the Trust gave incorrect advice to the police, who had attended her home following a 999 call on 13 August 2023.
13. Dr J says it should have been a doctor present at her home that day, not a nurse, and they did not complete an MCA assessment of her. Dr J says that in the absence of a police warrant, to be removed from her home she needed to be at risk of causing herself or someone else harm, and this was not the case.
14. The Trust said the decision to remove Dr J from her home was made by the police. The Trust acknowledges the police consulted with the nurse, who was in support of the decision, and believes it was made in Dr J’s best interests.
15. Dr J’s records show the nurse attended her home at 9pm on 13 August. The police had contacted the nurse as they were concerned about Dr J’s mental health, and the impact this was having on her family.
16. The nurse recorded that Dr J’s presentation was manic, and she was challenging their and the police’s attendance at her home. The records say Dr J was not aware of her own mental health, and instead had concerns about her physical health, believing she may have been poisoned, and talked about her heritage in the UK and electrical frequencies giving off tones. Dr J also displayed a level of paranoia surrounding her partner and her son.
17. The records say the nurse deemed Dr J lacked capacity, as she could not remain on topic or follow a conversation. The records also say the plan was for the police to remove Dr J from her home under the MCA so she could receive the out of hours emergency mental health assessment the nurse believed she needed.
18. Section 5 of the MCA explains a person (D) can act in connection with the care or treatment of another person (P) and be protected from legal consequences as if they had consented, so long as D reasonably believes: • that P lacks capacity in relation to the matter, and • that it will be in P's best interests for the act to be done.
19. Section 6 explains that if D does an act that is intended to restrain P, Section 5 does not apply unless: • D reasonably believes that it is necessary to do the act in order to prevent harm to P, and • the act is a proportionate response to the likelihood of P's suffering harm, and the seriousness of that harm.
20. Section 6 also explains that D is considered as restraining P if they: • use, or threatens to use, force to secure the doing of an act which P resists, or • restrict P's liberty of movement, whether or not P resists.
21. The Code of Practice says with regards to assessing a person’s capacity, ‘More complex decisions are likely to need more formal assessments… A professional opinion on the person’s capacity might be necessary. This could be, for example, from a psychiatrist, psychologist, a speech and language therapist, occupational therapist or social worker. But the final decision about a person’s capacity must be made by the person intending to make the decision or carry out the action on behalf of the person who lacks capacity – not the professional, who is there to advise.’
22. As it was the police that decided to remove Dr J from her home under the MCA, we cannot consider this decision itself, as it falls outside of our remit. We can consider whether the advice the nurse gave to the police, that Dr J lacked capacity and needed a mental health assessment in hospital, was appropriate.
23. Our adviser told us a nurse working within a street triage capacity would meet the criteria for making a complex decision on capacity. The guidance does not mandate that any capacity decision needs to be made by a doctor, as Dr J has suggested.
24. Our adviser told us it would have been best practice for the nurse to complete the capacity assessment using a specific MCA tool, but this is not mandated by guidance.
25. The Code of Practice says, ‘An assessment of a person’s capacity must be based on their ability to make a specific decision at the time it needs to be made, and not their ability to make decisions in general.’ Our adviser told us this means the nurse ideally should have specified which decision Dr J lacked capacity about, but it is clearly inferred the decision was regarding her accessing an assessment and any further help or support she needed at that time.
26. Our adviser also told us it was reasonable for the nurse to believe Dr J needed a mental health assessment in her best interests.
27. We recognise how worrying it must be to be removed from your home and taken to hospital when you do not feel it is necessary. We have seen it was appropriate for the nurse to advise the police that Dr J lacked capacity, and would benefit from a mental health assessment. We will therefore not consider this complaint any further.
28. We thank Dr J for bringing her complaint to us for our consideration, and wish her all the best for the future.
1. We have carefully considered Dr J’s complaint about Oxford Health NHS Foundation Trust (the Trust). We were very sorry to learn Dr J was detained against her will, and the impact she has described this had on her.
2. We have decided not to consider Dr J’s complaint any further. This is because we have seen the Trust acted appropriately.