Summary: The Ombudsman will not investigate Ms B’s complaint about the Council breaching her mother’s, Mrs C’s, confidentiality. This is because Ms B can ask the Information Commissioner’s Office (ICO) to consider her concerns about breaches of data and it would be reasonable for her to do so. There is no significant injustice to Ms B from the actions taken by the Council to warrant an Ombudsman investigation.

The complaint

1. Ms B says the Council breached confidentiality when it shared documentation about her mother, Mrs C, with her sister and refused to share it with her until she had provided a full copy of her Power of Attorney (PoA) for Mrs C’s health and welfare. Ms B says it was not possible for the Council to obtain written consent from Mrs C to share documentation with both her daughters, as the Council claim, and wants the Ombudsman to investigate when the consent was obtained. Ms B says the Council should only share documentation with her as she is Mrs C’s attorney.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• it is unlikely we could add to any previous investigation by the Council, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6), as amended)

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How I considered this complaint

3. I considered the information and documentation Ms B provided. I sent Ms B a copy of my draft decision and considered her comments on it.

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What I found

4. Ms B says the Council shared Mrs C’s assessments and care plans with her sister, but refused to give them to her until such time it was satisfied she held relevant Power of Attorney for Mrs C.
5. The Council says, Mrs C had capacity at the time. It says it passed the information to Mrs C who then gave her daughter the documents. It says Mrs C subsequently gave written consent for both her daughter’s to have information about her.
6. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:

• Because he makes an unwise decision.
• Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
• Before all practicable steps to help the person to do so have been taken without success.

7. The Ombudsman could not say Mrs C lacked capacity to make the decision to share her personal information with both daughters.
8. Ms B has since received the documents she wants so there is no injustice to her warranting an Ombudsman investigation. Mrs C was assumed to have capacity when she made the decision she wanted both daughters to have access to her personal information. This is not fault of the Council. If Ms B believes the Council has breached data protection legislation it would be reasonable for her to ask the Information Commissioner’s Office (ICO) to consider her concerns. Information about the ICO can be found on the website below:

https://ico.org.uk/your-data-matters/

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Final decision

9. The Ombudsman will not investigate this complaint. This is because Ms B can ask the Information Commissioner’s Office (ICO) to consider her concerns about breaches of data and it would be reasonable for her to do so. There is no significant injustice to Ms B from the actions taken by the Council to warrant an Ombudsman investigation.

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Investigator's decision on behalf of the Ombudsman