The Ombudsman's final decision
Summary: We cannot investigate Ms B’s complaint about the Council detaining her mother, Mrs D, against her will. This is because the Court of Protection has determined where Mrs D should live and only a court can make this decision.
The complaint
Ms B complained the Council detained her mother, Mrs D against her will in 2019, implemented Deprivation of Liberty Safeguards (DoLS) containing false and inaccurate information and says she should not have to pay for care she would have received free of charge under the NHS if the Council had assessed Mrs D correctly. Ms B says Mrs D was not suffering with dementia but was suffering from a decline in her mental health. In addition, Ms B says the Council failed to arrange for Mrs D to have regular walks with a Spanish speaking carer as the court had instructed it to.
The Ombudsman’s role and powers
We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
Ms B says she has been challenging the Council’s decision to detain Mrs D in a care home against her wishes for two and a half years. Ms B says the DoLS relied on for the detention was incorrect and inaccurate and says Mrs D does not need a care home but needs support for her behaviours from specialist mental health workers who can communicate with her in Spanish.
The Court of Protection has recently decided Mrs D can return home and is reviewing that decision in December.
We could not say the Council should not have placed Mrs D in a care home. Ms B could have made an application to the Court of Protection two and a half years ago and explained as her attorney it was not in her best interests for her to remain in there. Only a court can decide where a person must live if it is against their will, the Ombudsman cannot make this decision. In the absence of a court decision there is no fault with the Council completing a financial assessment and charging for care it provides.
Ms B says the Court told the Council to ensure Mrs D had daily walks with a Spanish speaking carer but did not do this. This is not a matter the Ombudsman can consider as the court determined the care Mrs D should have.
Final decision
We cannot investigate this complaint. This is because the Court of Protection has determined where Mrs D should live and only a court can make this decision.
Investigator's decision on behalf of the Ombudsman