The Ombudsman's final decision
Summary: We will not investigate this complaint about Miss Y not being kept informed about her relative’s welfare in the last few months of their life. This is because the complaint does not meet the tests in our Assessment Code on how we decide which complaints to investigate. We are unlikely to find evidence of fault to warrant investigation.
The complaint
In summary, Miss Y complains the Council ignored her concerns that her relative (Mr X) was being coerced by a third party. And it failed to keep her informed of Mr X’s location, declining health, and death.
Miss Y says she was left to deal with arranging Mr X’s funeral and her mental and physical health has been severely affected. She would like the Council to reconsider how it deals with assessments under the Mental Capacity Act.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse effect on the person making the complaint, which we call ‘injustice’. We provide a free service but must use public money carefully. We do not start an investigation if we decide the tests set out in our Assessment Code are not met. (Local Government Act 1974, section 24A(6), as amended).
We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
How I considered this complaint
I considered information provided by the complainant which includes the Council’s response.
I also considered the Ombudsman’s Assessment Code.
My assessment
The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make decisions for themselves.
A person aged 16 or over must be presumed to have capacity to make a decision unless, it is established, they lack capacity. A person should not be treated as unable, to make a decision, because they make an ‘unwise’ decision.
If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
The Council says Mr X was ‘unswerving’ in his wishes that Miss Y should not be kept informed of his welfare. The Council says its staff checked this point several times with Mr X. And as Mr X had been deemed to have mental capacity it had a legal obligation to respect his wishes.
I appreciate Miss Y does not agree that Mr X had capacity to make his own decisions. Disagreement with a Council decision is not necessarily evidence of fault. It does not meet the tests in our Assessment Code on how we decide which complaints to investigate. So, we will not investigate as we are unlikely to find evidence of fault to warrant investigation.
It was open to Miss Y to refer the matter to the Court of Protection to decide if Mr X had capacity to make a decision to keep in contact with her. Miss Y could also have reported the ‘third party’ to the Police.
Final decision
We will not investigate Miss Y’s complaint because we are unlikely to find evidence of fault to warrant investigation.
Investigator's decision on behalf of the Ombudsman