Hampshire County Council (20 009 722)
Category : Adult care services > Assessment and care plan
Decision : Closed after initial enquiries
Decision date : 16 Feb 2021
The Ombudsman's final decision:
Summary: We cannot investigate Mr B’s complaints about his mother’s Mrs C’s Mental Capacity and Deprivation of Liberty Safeguards assessments. This is because only a court can determine disputes about capacity and Mr B’s concerns have been lodged with the court.
The complaint
- Mr B complained that his mother, Mrs C, does not want to live in the home where the Council placed her. Mr B says Mrs C believes she has capacity to choose where she wants to live and whether she wants to pay for her care and disputes Mental Capacity Assessments (MCA) and Deprivation of Liberty Safeguards (DoLS) assessments which say she lacks capacity to make these decisions. Mr B says Mrs C wants to live in a home of her choice whether it is with family or another home.
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)
How I considered this complaint
- I discussed the concerns with Mr B and considered the information and documentation he provided. I sent Mr B a copy of my draft decision for comment.
What I found
- The Mental Capacity Act 2005 says a person is deemed to have capacity unless it is established they lack capacity.
- The Council says Mrs C lacks capacity to be able to decide where she lives and has undertaken a DoLS assessment and decided in her best interests she should stay in the home where she has been placed. The Council says it is discussing with Mrs C the options of moving.
- Mr B says the person undertaking the assessments was rude and abusive to him and biased when undertaking the assessments. Mr B says he is supporting Mrs C to challenge the decision that she lacks capacity in the Court of Protection and has lodged an application with the court to challenge the Council’s assessments.
- Only a court can determine whether Mrs C has capacity to make decisions about where she lives, and, if she lacks capacity, whether she should remain in a home where she does not want to live.
Final decision
- We cannot investigate this complaint. This is because only a court can determine disputes about capacity and Mr B’s concerns have been lodged with the court.
Investigator's decision on behalf of the Ombudsman