Stockton-on-Tees Borough Council (21 013 303)

Category : Adult care services > Assessment and care plan

Decision : Not upheld

Decision date : 11 Apr 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council’s decision not to appoint him as Relevant Person’s Representative for his mother’s Deprivation of Liberty Safeguards authorisation. We have ended the investigation as the appointed Relevant Person’s Representative has approached the Court of Protection and Mr X is party to the proceedings. The Court is best placed to address Mr X’s concerns and make decisions in his mother’s best interests.

The complaint

  1. Mr X complained the Council failed to make him the Relevant Person’s Representative (RPR) for his mother’s Deprivation of Liberty Safeguards (DoLS) authorisation when he was appointed as her RPR for a previous DoLS authorisation. He says this caused him distress and frustration.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact 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 or may decide not to continue with an investigation if we decide:
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint,

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

  1. 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)

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How I considered this complaint

  1. I have considered the information provided by Mr X and have spoken with him on the phone. I have considered some initial information provided by the Council.
  2. I gave Mr X and the Council the opportunity to comment on a draft of this decision and considered any comments I received in reaching a final decision.

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What I found

  1. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty.
  2. To obtain a standard authorisation, the care home or hospital (‘the managing authority’) makes a request to a team in the council (‘the supervisory body’). The supervisory body then carries out six assessments to decide whether to approve the authorisation: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’.
  3. A supervisory body can grant or refuse an authorisation and it can make conditions including changes to a care plan to ensure there are fewer restrictions. It also sets a time limit for the authorisation.
  4. Once a supervisory body has approved a standard authorisation, it must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The RPR’s role is to represent and support the person in relation to the Deprivation of Liberty Safeguards, including, if appropriate, triggering a review, using the complaints procedure or making an application to the Court of Protection. RPRs must have regular contact with the person.
  5. If there is nobody (other than a professional carer) appropriate to be an RPR, the supervisory body should instruct an Independent Mental Capacity Advocate (IMCA).
  6. If there is a disagreement about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
  7. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
  8. The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way. The Court of Protection:
    • decides whether a person has capacity to make a particular decision for themselves;
    • makes declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions;
    • appoints deputies to make decisions for people lacking capacity to make those decisions;
    • decides whether a Lasting Power of Attorney or Enduring Power of Attorney is valid; and
    • removes deputies or attorneys who fail to carry out their duties.

What happened

  1. Mr X lived at home with his mother, Mrs Y. In January 2021 Mrs Y became unwell and was admitted to hospital. During that time the hospital applied for a DoLS. Mr X agreed to be her RPR. While she was in hospital the Council referred Mrs Y for an independent mental capacity advocate to represent her views.
  2. In February 2021 Mrs Y was discharged from hospital to a residential home for a period of assessment. The care home applied for a DoLS. The IMCA was appointed as Mrs Y’s RPR for the DoLS process. The Council later assessed Mrs Y as requiring 24-hour nursing care.
  3. In September 2021 Mr X requested information from the Council and found out he was not Mrs Y’s RPR for the current DoLS. Mr X says the Council said this was due to a conflict of interest as he had lived with his mother. Mr X did not agree with the reasons given by the Council.
  4. Mr X continued to raise concerns about the process and about his mother’s care. The Council therefore asked the RPR to make an application to the Court of Protection. Mr X is listed as an interested party to the proceedings.

Findings

  1. We cannot investigate what happens in a court or a matter which a court is dealing with or has decided. Because of Mr X’s concerns about Mrs Y’s care the RPR has approached the Court of Protection. The role of the Court of Protection is to make decisions for people who lack capacity to make decisions themselves. Mr X is a party to the proceedings and the Court is best placed to address his concerns. If Mr X believes the RPR is not acting in Mrs Y’s best interests he can raise this with the Court.

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Final decision

  1. I have ended my investigation as the Court of Protection is better placed to address the matters complained about and we cannot investigate matters being considered by a court.

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Investigator's decision on behalf of the Ombudsman

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