Summary: Mr X complained about the way the Council dealt with his late father, Mr Y. He said the Council failed to assess the risks of Mr Y returning home and did not provide the necessary care and support. He said it did not properly assess Mr Y’s mental capacity and this caused unnecessary suffering to Mr Y. It also caused family distress and upset. We found no fault in the Council’s actions.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains that the Council:
• Did not properly assess the risks to his father, Mr Y, on returning home after a stay in hospital.
• Failed to provide Mr Y with the necessary care and support.
• Unreasonably determined Mr Y had the mental capacity to decide not to have further contact with his family.
2. Mr X says this caused unnecessary suffering to Mr Y, also distress and upset to Mr X and family. This also denied the family closure after Mr Y’s death.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
4. If we are satisfied with a council’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
5. 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.

6. (Local Government Act 1974, section 26A(2), as amended). We consider Mr X is a suitable person to complain on Mr Y’s behalf.

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How I considered this complaint

7. I considered information from the Complainant and from the Council.
8. I sent both parties a copy of my draft decision for comment and took account of the comments I received in response.

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What I found

Background

Mental capacity

9. The Mental Capacity Act 2005 sets out five principles:
• A person must be assumed to have capacity unless it is established that he lacks capacity.
• A person is not to be treated as unable to decide unless all practicable steps to help him to do so have been taken without success.
• A person is not to be treated as unable to decide merely because he makes an unwise decision.
• Any action or any decision on behalf of a person who lacks capacity must be in that person’s best interests.
• Before any decision on behalf of a person who lacks capacity, decision makers must consider whether they can achieve the purpose effectively in a less restrictive way.
10. The Act also says the test of someone’s capacity to decide is on the balance of probabilities and is decision and time specific. When someone is deciding on behalf of an incapacitated person, and in their best interests, they must consider the person’s wishes, feelings, beliefs and values and those of family and friends.
11. The test of capacity involves assessing a person to see whether they can:
• Understand the relevant information including the likely consequences of making, or not making the decision.
• Retain the information.
• Use or weigh the information as part of the decision making process.
• Communicate their decision.

What happened

12. Mr Y had health conditions which caused him significant difficulties with mobility. He spent some time in hospital in 2019 and then in a residential care home funded by the NHS. During this time, Mr Y lost mental capacity and could not consent to his stay there so was subject to a standard deprivation of liberty safeguard authorisation.
13. In late 2019, Mr X asked for the DoLS authorisation to be reviewed and it was ended as Mr Y now had the mental capacity to consent to his stay.
14. In early 2020, Mr Y returned home. His home was neglected and cluttered and presented many risks to Mr Y which were identified by those involved in his care.
15. In February, Mr Y’s mental capacity was assessed again, and he was found to have capacity to understand the risks to him in his home environment.
16. I have seen evidence of various contacts with health and social care professionals during which Mr Y refused various offers of help and to leave his home. He was assessed as having capacity to decide about this.
17. The Council contacted Mr Y following concerns that had been raised and Mr Y said he did not want any information shared with his children.
18. During a later admission to hospital, Mr Y sadly died. Mr X says various agencies raised concerns about Mr Y’s home environment and that he would be at risk there. Mr X feels the Council did not deal adequately with those risks and eventually this led to Mr Y’s death.

Was there fault which caused injustice?

19. It is not the Ombudsman’s role to consider whether Mr Y had capacity to make his own decisions, or to assess the risks to his wellbeing and health. The Ombudsman’s role is to consider whether the Council properly considered these issues.
20. I looked at the mental capacity assessments and found the Council had completed these properly. I also found the Council dealt properly with Mr Y’s decision to return home; it considered the risks and offered suitable advice and support to him.
21. I found no fault in the way the Council dealt with Mr Y in any of the areas about which Mr X raised concerns. As Mr Y had been properly assessed to have the capacity to decide about his care and where to live, he was entitled to decide about this, however unwisely. Mr Y also expressed a wish to not share information with Mr X. As he had capacity to decide this, I cannot share any further information with Mr X. Therefore, this statement contains minimal information to explain my findings.

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Final decision

22. I have completed my investigation and do not uphold Mr X’s complaints that the Council:
• did not properly assess the risks to his father, Mr Y, on returning home after a stay in hospital.
• failed to provide Mr Y with the necessary care and support.
• unreasonably determined Mr Y had the mental capacity to decide not to have further contact with his family.

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Investigator's decision on behalf of the Ombudsman