Miss X’s forced shower on 8 October 2022
15. Miss X says the Trust forced her to take a shower against her will on 8 October 2022 whilst she was detained at the Trust under section 2 of the MHA. (Section 2 of the MHA allows for a person to be admitted to a hospital for up to 28 days to be assessed for a mental disorder and to decide if treatment is needed).
16. Miss X says that without warning, five members of Trust staff entered her bedroom and dragged her out of the room. Miss X says that staff were grabbing on to her arms and she was then placed in a big ward bathroom with approximately 15 members of staff present, and the door was open. Miss X says that staff removed her clothing and exposed her naked body. Staff poured water all over her body and used dirty cloths to wash her. Miss X says staff rubbed a cloth in her face.
17. Miss X says that staff did not obtain her consent to shower her, or ask her if she could shower herself. Miss X says that staff did not say what products they were using on her, and they were washing and massaging her scalp aggressively. Miss X says several other staff were by the door to stop her from getting away from the situation. Miss X says that staff behaved abusively and inappropriately towards her.
16. Miss X says the behaviour of the staff towards her was wrong, unethical, violating, and offensive.
18. In its first response to Miss X’s complaint, the Trust stated it was concerned for Miss X’s dignity in relation to her personal hygiene. The Trust stated it felt Miss X needed to shower as she was on her menstrual cycle and she had soiler her clothes, the dining room table, and her mattress.
19. The Trust stated it was documented that staff had requested for Miss X to attend to her personal hygiene, but Miss X declined. The Trust said that staff felt Miss X lacked understanding over how she was presenting, and she did not have the capacity to understand what staff were explaining to her about her personal hygiene.
20. The Trust said it was documented that staff encouraged Miss X to shower independently, however, she repeatedly declined and so she was subsequently placed in precautionary holds and walked to the shower.
21. The Trust said that after reviewing the incident report and confirming with the ward manager, it appears there were three members of female staff present when Miss X was being washed and dressed. One member of staff held one arm, whilst the second member of staff held the other. The Trust said the third member of staff helped Miss X to undress.
22. The Trust stated that appropriate steps were taken in Miss X’s best interests due to Miss X lacking capacity. The Trust said that staff members and Miss X’s family were involved in the decision to shower her, due to concerns around infection control as she had soiled herself in her room and the communal area that other patients use. The Trust said it appreciates that this cannot have been a nice experience for Miss X, and it is sorry if she felt distressed regarding the incident, but all actions were taken with Miss X’s best interests in mind.
23. In its second response to Miss X’s complaint, the Trust added that the situation involved two conflicting versions of events, one from what Miss X had said, and the other from the investigation and what staff had said. The Trust said Miss X had reported that 15 members of staff were present, but the current practice for a physical intervention typically involves a smaller number of staff members. The Trust said it is difficult to imagine a scenario where such a large number of staff would be necessary, even in cases involving threats of violence.
24. The Trust said there were concerns about whether the Trust undertook a proper capacity assessment for Miss X prior to restraining her, and whether the best interest principles were followed during this incident. The Trust said there was a discrepancy between staff feedback and the investigator's findings regarding the necessity of the actions taken. However, it did not provide any further information regarding what it meant by this.
25. The Trust said its actions were proportionate based on the evidence of blood soiling and the risk of cross-contamination. The Trust apologised to Miss X for the experience she underwent on the ward, and it said it would ask for a local investigation regarding the assessment of Miss X’s capacity at the time. However, we have seen no evidence that the Trust undertook this investigation.
26. In its response to our provisional views, the Trust stated that staff asked Miss X to attend to her hygiene needs on 5,6, and 7 October 2022, but she refused to do so.
26. The Trust completed an incident report on 8 October 2022 that documented this. It stated: ‘Miss X was in her bed area, staff EL and PSF approached her and asked if she would attend to her personal care. She refused, “I don’t want to”. Due to her being on her menstrual cycle, and due to infection control issues (she had soiled the dining room table overnight as well as the mattress in her room) staff felt it appropriate to support Miss X in attending to her personal hygiene under restraint, as she currently lacks capacity in retaining information and making a judgement regarding her care. Staff EL and PSF encouraged her to walk independently however she refused, staff EL and PSF placed her in precautionary holds and walked with her to the shower. Staff EL informed Miss X of the procedure, and she again refused the intervention, “I don’t need a shower”. Staff EL informed her that she will be placed in holds while female only staff undress her and assist her in attending to her personal hygiene. Staff EL held the left arm, while LF held her right arm. Staff PSF undressed her, and Miss X was showered with assistance from staff. She was dressed and pads were dressed on her, to ensure that she can mobilise while on her menstrual cycle. She then walked to the day area and was calm and cooperative following the attendance to her personal hygiene.’
27. The MHA gives clinicians authority to restrain patients who require treatment for their mental illness. The MHA gives no authority to restrain any patient for treatment for physical conditions unrelated to their mental illness. The Mental Capacity Act (MCA) defines restraint as when someone ‘uses or threatens to use force to secure the doing of an act when the person resists OR restricts a person’s liberty whether or not they are resisting.’
28. The Department of Health’s guidance on reducing the need for physical interventions states, careful deliberation must take place before the use of a physical intervention on a patient, and an assessment of mental capacity must be undertaken.
29. To determine if the Trust acted appropriately when it forced Miss X to shower on 8 October 2022, we have reviewed the NICE guidance [NG10] on the management of violence and aggression in mental health settings, and we have reviewed the Trust’s own policy on its management of violence.
30. Section 1.4.5 of the NICE guidance [NG10] on the management of violence says that organisations should use a restrictive intervention only if de-escalation and other preventive strategies, including p.r.n. (as needed) medication, have failed and there is potential for harm to the service user or other people if no action is taken. The guidance advises organisations to continue to attempt de-escalation throughout a restrictive intervention.
31. Section 1.4.7 of the NICE guidance [NG10] says organisations should ensure that the techniques and methods used to restrict a service user: • are proportionate to the risk and potential seriousness of harm • are the least restrictive option to meet the need • are used for no longer than necessary • take account of the service user's preferences, if known and it is possible to do so • take account of the service user's physical health, degree of frailty and developmental age.
32. The NICE guidance [NG10] also outlines that an external post-incident review should be done after a physical intervention has taken place. It says this should be done by the service user experience monitoring unit or equivalent service user group.
33. It says the review should be done no later than 72 hours after the incident. The unit or group should ensure that the formal external post-incident review: • is led by a service user and includes staff from outside the ward where the incident took place, all of whom are trained to undertake investigations that aim to help staff learn and improve rather than assign blame • uses the information recorded in the immediate post-incident debrief and the service user's notes relating to the incident • includes interviews with staff, the service user involved and any witnesses if further information is needed • evaluate the physical and emotional impact on everyone involved, including witnesses • help service users and staff to identify what led to the incident and what could have been done differently • determine whether alternatives, including less restrictive interventions, were discussed • determine whether service barriers or constraints make it difficult to avoid the same course of actions in future • recommend changes to the service's philosophy, policies, care environment, treatment approaches, staff education and training, if appropriate avoid a similar incident happening in future, if possible.
34. Section 14.1 of the Trust’s policy on violence reduction says physical interventions must only be used when staff believe that not doing so would result in greater physical harm to the service user, themselves or others. Staff will be required to justify their actions in line with the tenets of reasonableness, proportionality and necessity.
35. Section 16.1 of the Trust’s policy states the patient’s care plan will be reviewed and the Rio (electronic patient record) risk assessment will be updated. It also outlines that a debriefing will take place after every episode of restraint, seclusion or violent incident. This will happen for every service user, staff, and any witnesses to the incident. The purpose of the debrief is to assess and care for the physical, psychological and emotional wellbeing of the parties involved.
36. The policy also outlines that a local ward incident review will take place after every episode of restraint, seclusion or violent incident, and recommendations will be made where appropriate. The policy states the care plan should be reviewed with the service user where appropriate and all relevant changes will be implemented, including any amendments to the service users advanced wishes plan, and the risk assessment will be updated on Rio.
37. We also received clinical advice on this from our adviser. Our adviser stated when staff are using restraint either as a direct intervention or as a safety measure, they will need to have undertaken a comprehensive risk assessment and documented the outcomes and actions.
38. Any actions the Trust undertakes should make clear that they are the only practicable means of securing welfare, and the exceptional circumstances should be detailed. Our adviser stated the risk assessment should include details of the following in the care plan: • the involvement of the person and/or their relative or main carer/representative • the behaviour or situation that is seen as causing the risk.
39. Our adviser stated the Trust should have assessed Miss X’s level of risk in relation to bathing and showering needs, and this should have been documented in the nursing documentation. Our adviser added Miss X’s level of risk should be recorded on the risk assessment under personal hygiene headings. They outlined that good clinical practice would be to regularly review and inform care plans tailored to people’s specific needs. Where there is risk to health from neglected personal cares and considering dignity, a robust mental capacity assessment should be carried out to inform this.
40. We have not seen any evidence in Miss X’s clinical records to show that the Trust undertook a mental capacity assessment for Miss X. It has also stated it is concerned it did not do this in its second response to Miss X’s complaint; however, the Trust informed us it did undertake a mental capacity assessment for Miss X.
41. We have also seen no evidence that the Trust completed a risk assessment or post incident review after Miss X was restrained. The NICE guidance [NG10] and the Trust’s own policy outline that these two things need to happen. When we asked the Trust about this, it stated a risk assessment and care plan were done, but it is unable to access and download these documents since it moved to the Clinical Summary Support System.
42. With regards to the mental capacity assessment, we can see from Miss X’s clinical records she was reviewed by the MDT on 3 October 2022, and it found that Miss X lacked insight into her condition and was unable to weight the relevant information on balance to make decisions on the need for acute inpatient treatment as well as the nature, purpose and likely effects of psychotropic medication. Whilst this shows Miss X was unable to make decisions about her medication and treatment, this does not state she was unable to provide consent to take a shower or that she was unable to care for her hygiene needs and she did not understand the importance of doing so. We have seen no evidence that the Trust undertook a mental capacity assessment to specifically assess whether Miss X understood the benefits to her hygiene and welfare of having a shower.
43. Our adviser stated the Trust should have considered the risks of Miss X not showering, and was intermittent compliance sufficient to maintain her health and wellbeing. They outlined the Trust should have assessed the level of risk in relation to Miss X’s bathing and showering needs, and this should have been documented in the nursing care plan.
44. Our adviser stated the Trust should then have outlined the level of risk, and the actions to mitigate the risk should have been recorded on the Rio risk assessment and Miss X’s care plan under personal hygiene heading. Our adviser added that good clinical practice would be to regularly review, and inform Miss X’s care plans, and tailor them to her specific needs. They stated that detention under the MHA alone is not enough to administer personal care without consent.
45. We have seen no evidence that the Trust undertook a robust risk assessment for Miss X to determine the risks of forcing her to shower, if this was a necessary action, or if there were alternatives to this, such as a less invasive wash or another lesser intervention that would address her needs and the risk of infection.
46. We have seen no evidence that the Trust undertook a mental capacity assessment for Miss X to determine if she was able to consent to having a wash or shower, and if she understood the reason why it was important she addressed her hygiene needs.
47. We have also seen no evidence that the Trust had an MDT discussion, or that this action was discussed among any senior staff prior to the Trust carrying it out. The incident form states the Trust had a best interests meeting with Miss X’s father over the phone, however, this is not consistent with Miss X’s clinical records.
48. The clinical records show that Miss X was forced to shower prior to 12.45pm on 8 October 2022, as this is the time the entry was made into her records that documented the incident. At 5.47pm the Trust entered the notes regarding the best interests discussion with Miss X’s father regarding her being forced to shower, and the notes say the discussion took place that afternoon, which indicates this was done after the event.
49. The incident form states that a debrief took place after the incident, however, it does not go into any detail to explain how this was undertaken. Based on our findings here, we do not Trust consider the Trust has followed its own policy on violence reduction that was in place at the time, or that it has followed the NICE guidance [NG10] or Department of Health Guidance.
50. Based on all the evidence and guidance we have considered, we have not seen that it was appropriate, proportionate or justified for the Trust to have forced Miss X to shower on 8 October 2022. This is because it was her human right to decide what care she received, whether it is a basic wash or a procedure, and it was the Trust’s responsibility to see that this was addressed in Miss X’s care plan. We have therefore identified this to be a failing.
51. We understand this must have been an extremely upsetting and traumatic event for Miss X. We are extremely sorry to learn of what she has been through. We will fully address the impact of this in the impact section of our report.
Miss X’s rights after she was sectioned under the MHA
52. Miss X says the Trust did not explain her rights to her after she was sectioned.
Miss X says the Trust did not offer her an Independent Mental Health Advocate (IMHA), and the Trust did not once tell her she can have legal representation. Miss X says she was only given a sectioning leaflet, but the Trust made no attempt to explain the information in the leaflet to her.
53. Section 132 of the MHA requires the managers of a hospital or registered establishment to provide detained patients with information about their detention and their rights, both verbally and in writing. This includes explaining the specific section of the MHA under which they are detained, the effect of those provisions, and their right to apply to a mental health tribunal. The information must be provided as soon as practicable after their detention begins and should be given in a way they can understand, with interpreters used if necessary.
54. In the Trust’s first response to Miss X’s complaint, the Trust stated it was recorded in Miss X’s notes that her Section 132 rights under the MHA were explained to her on her arrival to the ward on 2 October 2022. It stated it was unclear if she understood her section 132 rights at the time of the explanation. The Trust said there is no further documentation that suggests the section 132 rights were explained to Miss X.
55. The Trust said that as part of its policy on informing patients of their rights under Section 132 of the MHA, their rights should be read at the earliest opportunity and re-read if they are not understood. When a section is changed, the patient’s rights under that section should be read again to them to ensure the patient understands their rights. The Trust stated it appears the policy was not directly followed, as it is not clearly documented that Miss X understood her rights.
56. The Trust stated it is documented that Miss X’s rights were read on 10 November 2022 when she was under section 3 of the MHA, and that she understood the rights that were read to her. The Trust said that although Miss X’s rights were read and understood on this occasion, there was a two-week period from the section 3 commencing and her rights being read and understood. The Trust said it sincerely apologises to Miss X that she did not understand on each occasion what was being explained to her.
57. In the Trust’s second response to Miss X, it said the current practice is when an individual is admitted under the MHA; it is crucial for staff to clearly explain the individual’s rights. Staff should ensure the individual’s understanding, and revisit this a few days later, especially if the individual may not fully grasp their rights due to their condition at the time of admission. The Trust said this is particularly important when a patient is transitioning from section 2 to section 3 of the MHA.
58. Section 4.9 of the Mental Health Code of Practice (COP) states the MHA (the Act) requires hospital managers to take steps to ensure that patients who are detained in hospital under the MHA, understand important information about how the MHA applies to them. This must be done as soon as practicable after the start of the patient’s detention.
59. Section 4.10 of the COP states information must be given to the patient both orally and in writing, including in accessible formats as appropriate and in a language the patient understands. It outlines that those providing the information need to make sure the patient understands it.
60. Section 4.12 states the patient should be given all relevant information regarding complaints (their right to make a complaint and how they can do this), advocacy and legal advice. This information should be readily available to them throughout their detention.
61. Section 4.13 outlines that patients must be informed of the provisions of the Act they are detained under, and that help is available from an independent mental health advocate (IMHA), and how they can obtain that help.
62. Section 4.14 states patients should be told: the reasons for their detention, the maximum length of the current period of detention, that their detention may be ended at any time if it is no longer required or the criteria for it are no longer met that they will not automatically be discharged when the current period of detention that their detention will not automatically be renewed or extended when the current period of detention
63. Section 4.15 says patients should also be told of the legal and factual grounds for their detention, so that the patient can adequately and effectively challenge the grounds for their detention. The patient should also be told they can seek legal advice and be assisted to do so if required.
64. Section 4.17 outlines that where the Act under which the patient is being detained changes, they must be provided with the above information to reflect the new situation. This means their rights must be read to them again in relation to the new Act they are now detained under.
65. Section 4.28 states that those with responsibility for patient care should ensure that patients are reminded from time to time of their rights and the effects of the MHA. It may be necessary to give the same information on a number of different occasions or in different formats and to check regularly that the patient has fully understood it. Information that is given to a patient who is unwell may need to be repeated when their condition has improved. It is helpful to ensure that patients are aware that an IMHA.
66. Miss X’s clinical records state that on 2 October 2022, the Trust read Miss X her section 132 rights, and it was explained that she was on section 2 of the MHA. The note say that Miss X was informed of the nature of section 2, and that it can last up to 28 days. The notes also say Miss X was told how she could appeal against the section if she wished to. The notes then refer to a different name in the records, but it is likely this was a typing error. The notes go on to say the Trust informed Miss X that she has the right to have legal representation, and she can access a mental health advocacy service. The Trust noted it also explained there was a 14-day rule for appealing against the sectioning decision.
67. After carefully reviewing Miss X’s clinical records, we have not seen any evidence that shows the Trust believed Miss X to have understood what she was being told regarding her rights, and there is no evidence to show the Trust informed her of her rights in writing as well as verbally.
68. The Trust noted Miss X was suspected of having a relapse of her non-organic psychosis (non-organic psychosis is a type of psychosis that is not caused by a physical condition or medical illness. It is traditionally referred to as functional psychosis, which is triggered by factors like substance use or psychological stress and is not linked to a known "organic" or physiological cause affecting the brain). This means it is possible that Miss X may not have fully understood what the Trust was explaining to her at that time.
69. We also obtained clinical advice on this from our adviser. They stated that good clinical practice would be that Miss X would get a leaflet with information when she arrived on the ward, and her rights would be explained by a member of nursing staff on admission. This includes right of access to an Independent Mental Health Advocate (IMHA). Good clinical practice would also be that her rights would be revisited in a few days.
70. Based on the evidence, guidance and clinical advice we have received, we have found the Trust did not meet the standards it should have with regards to explaining Miss X’s rights to her when she arrived on the ward. This is because there is no evidence the Trust provided Miss X with a written explanation of her rights, and it did not check to see if she had understood what was being said to her, either at the time or a few days after she was detained. We have therefore identified this to be a failing. We will discuss the impact of this later in the report.
71. Miss X’s clinical record show she was placed on section 3 of the MHA on 25 October 2022. We have seen no evidence to show that the Trust informed Miss X of her rights under section 3 of the MHA. The Trust stated in its response that Miss X was informed of her rights under section 3 of the MHA on 10 November 2022, however, we have robustly checked the records and from the records we have reviewed, we have seen no evidence that this happened.
72. We received clinical advice on this, and our adviser stated it is important when transitioning from one section to another (i.e. section 2 to section 3 of the MHA) that a patient is informed of their rights. Our adviser stated good clinical practice would be for the MHA office to write to Miss X and inform her of her transfer from section 2 to section 3 of the MHA, with a copy of her rights in a leaflet. We understand this must have been a very distressing and concerning time for Miss X, and we are very sorry to learn of these issues that she has raised.
73. we have seen no evidence that the Trust informed Miss X of her rights when she was detained under section 3 of the MHA. This is not in line with the COP, based on this and the clinical advice we have received, we have identified this to be a failing. We will discuss the impact of this in the impact section of our report.
Our findings in relation to impact
74. We will address the impact we have identified in relation to each complaint component separately.
The shower incident on 8 October 2022
75. We have identified a failing with the Trust forcing Miss X to shower on 8 October 2022.
This is because we have seen no evidence to show that it was proportionate, necessary or justified to force Miss X to shower based on the circumstances at that time.
76. Miss X says the shower caused her lots of distress and humiliation. She says she felt violated, and she has been left scared to go outside into public spaces and communicate with others. She says she suffers a lot of anxiety due to this. Miss X says she has been left traumatised, and she suffers with panic attacks and sleepless nights due to being forcibly made to shower.
77. To further consider the impact in relation to this we obtained clinical advice from our adviser. Our adviser stated Miss X would have found the ordeal very distressing, she would have felt afraid, felt unsafe, and lost her dignity on the ward.
78. We have found this would have been traumatic, distressing, undignified and humiliating for Miss X, at what would have already been a very difficult time for her. We understand this would have had an ongoing impact on Miss X, and she would have understandably been caused anxiety and felt unsafe within the Trust after this event.
Miss X’s rights not being explained to her appropriately in October and November 2022
79. We have identified two failings with the Trust not appropriately or adequately explaining Miss X’s rights to her when she was under section 2 and section 3 of the MHA. Whilst there is evidence to show the Trust informed Miss X of her rights under section 2 of the MHA when she was detained, there is no evidence in Miss X’s records to show she understood her rights whilst she was detained, or what she could do to appeal the sectioning decisions. This would understandably have caused Miss X further concern and distress at what was already a very difficult time for her. It is understandable that she would have felt powerless and helpless about the situation she was in.
80. We have also found this led to the loss of an opportunity to for Miss X to contact the IMHA who could have helped her understand her rights and other information about being detained, including how to appeal her detention support her to express her views and wishes to health professionals, or speak on her behalf if she wanted them to have confidential discussions.
Our recommendations
81. We make recommendations in line with our Principles for Remedy which say public bodies should acknowledge failures, apologise, make amends, and use the opportunity to improve their services. The Principles say we aim to ensure the public body puts the complainant back in the position they would have been in had nothing gone wrong. If that is not possible, the public body should compensate them appropriately.
82. Our Principles for Remedy are reflected in the NHS Complaints Standards UK Central Government Complaint Standards which say organisations should offer fair remedies to put things right and identify learning and use it to improve services.
What we found
83. Through investigating Miss X’s complaint, we found the Trust inappropriately forced Miss X to shower, and it did not adequately inform her of her rights under the MHA. These events would have caused Miss X significant distress.
What the organisation should do
84. Our Principles for Remedy say organisations should acknowledge poor service and take steps to put things right when this leads to an injustice or hardship.
85. The Trust should write to Miss X to apologise for the failings and impact we have identified. The apology should be sent to Miss X, with a copy being sent to our office within one month of the date of us issuing our final report.
86. Our Principles for Remedy say organisations should compensate people appropriately if they cannot return the person affected to the position they would have been in if the poor service had not occurred.
87. To decide on a level of financial remedy, we review similar cases where the person has experienced a similar injustice, along with our severity of injustice scale (our scale).
88. Our scale allows us to ensure the recommendations we make are consistent and transparent for everyone who uses our service. The figures included in the scale represent the Ombudsman’s judgement about the sort of sums that are both appropriate and proportionate for us to recommend. The scale contains six different levels of injustice that a complaint could fall into, which increase in severity. Each level is then linked to a range of the financial amounts we would usually recommend in those circumstances.
89. After careful and robust consideration and assessment, we have found that the impact caused to Miss X sits within level 3 of our severity of injustice scale. Financial remedies to be paid within this category range from £600 to £1,200. This category is defined as distress, upset or worry lasting 6-12 months. Significant distress (that is, distress which results in a degree of functional impairment) lasting from a few weeks to three months (or shorter periods where the symptoms are greater). This can include a single traumatic or highly distressing experience where there was no other significant adverse impact, or significant embarrassment or humiliation. We consider this reflects Miss X’s experience, and the impact that was caused to her.
90. Following this review, we recommend the Trust
• pay Miss X £1,000 in recognition of the impact that was caused to her as a result of all three failings we have identified.
• send us evidence it has done within one month of us issuing the final report.
91. Our Principles for Remedy also say organisations should look for continuous improvement and learn lessons from complaints to make sure poor service is not repeated.
92. We recommend the Trust:
• produces an action plan to address the failings relating to Miss X’s forced shower, and it failing to adequately inform her of her rights • identify the reason(s) for the failing (where possible) • explain the learning taken and set out what it will do differently in the future (or does differently now) • for each action it should state who is/was responsible, timescale for completion, and how it will be/was monitored • share the action plan with us, Miss X and the CQC within three months of the date of us issuing the final report.
93. Complaints give us valuable insight into the organisations we investigate, and we recognise this has been an emotionally challenging process for Miss X. We would like to thank her for sharing her experience with us. We understand this must have been very hard for her.