Summary: The Ombudsman will not investigate this complaint about the action by the Council to authorise the deprivation of liberty of the complainant’s mother. This is because it is unlikely he would find fault by the Council in the way it dealt with the authorisation process.

The complaint

1. The complainant, who I shall call Mr X, complains on behalf of his late mother, who I shall call Mrs Y, about the action taken by the Council to authorise Mrs Y’s deprivation of liberty. He says:
• Mrs Y, who was living in a care home, had already been assessed as having no mental capacity. The second assessment arranged by the Council was pointless and distressing. And he wasn’t given advance notice of the assessment appointment.
• It was a nonsense and waste of resources to send Mrs Y a copy of the authorisation inviting her to contact the Council if she disagreed with the decision.
• The Council should not have charged him with the responsibility of ensuring his mother understood the reason for the authorisation.
• The Council delayed in responding to his complaint

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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’.
3. We provide a free service but must use public money carefully. We may decide not to start an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
4. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2), as amended)

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How I considered this complaint

5. I read what Mr X has told us about this complaint and the information provided by the Council, including its complaint response. I also invited Mr X’s comments on a draft version of this decision.

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What I found

Deprivation of liberty safeguards Code of Practice

6. The Deprivation of liberty safeguards (Dols) are statutory provisions under the Mental Capacity Act 2005. They protect those people accommodated under care and treatment regimes that may have the effect of depriving them of their liberty, but who lack the capacity to consent.
7. Dols ensure that any decision to deprive someone of their liberty is made following defined processes set out in the Code of Practice.
8. The Code of Practice sets out the process that must be followed for a person living in a care home. If the care home identifies that a deprivation of liberty is necessary in a particular case, it must apply to the local authority, in most cases, for authorisation. The care home must also tell the relevant person’s family, friends and carers that it has applied for authorisation.
9. When a local authority receives an application, it must take the steps set out in The Code of Practice. These include obtaining assessments before giving authorisation. And giving copies of the authorisation to the care home, the relevant person and the relevant person’s representative.

What happened

10. In about November 2019, the Council responded to an application by the care home in which Mrs Y lived, for authorisation for the deprivation of her liberty. The Council completed the authorisation process, which included arranging an assessment of Mrs Y and sending copies of the authorisation to Mrs Y, and Mr X as her representative.
11. Mr X was unhappy about the Council’s actions and complained to the Council at the end of November 2019. The Council sent its response at the end of December 2019. It explained it had taken the steps as required under the Code of Practice.
12. Mrs Y sadly died in January 2020. Mr X has brought this complaint to us on her behalf.

Assessment

13. I appreciate Mr X is unhappy about the action taken by the Council to authorise the care home’s application for Mrs Y. As he is bringing the complaint on her behalf, we are not able to look at any effect on him of these actions.
14. Mr X asked us for evidence that Mrs Y’s care home made an application to the Council for authorisation for the deprivation of her liberty. Details of the care home’s application would have been set out in the authorisation letters sent to Mr X and Mrs Y.
15. I am satisfied the steps taken by the Council were those it was required to take under the statutory provisions of the Dols Code of Practice, to safeguard Mrs Y’s rights.
16. Where we are not investigating the main part of a complaint we do not investigate the Council’s operation of the complaints process relating to it. As we are not proposing to investigate the main part of Mr X’s complaint on Mrs Y’s behalf, I do not propose to consider any complaint about a delay in the Council’s response.

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Final decision

17. I will not investigate this complaint. This is because there is no evidence of fault by the Council in the way it completed the process of authorising Mrs Y’s deprivation of liberty.

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Investigator's decision on behalf of the Ombudsman