Summary: We will not investigate this complaint about the way the Council carried out a mental capacity assessment for the complainant’s mother. This is because we could not obtain the information the complainant wants by investigating her complaint and the Court of Protection is best placed to reach a decision on a person’s mental capacity where there is a dispute.

The complaint

1. The complainant, Ms B, complained about the way the Council carried out a mental capacity assessment for her mother, Mrs D. Mrs D has consented to Ms B making the complaint on her behalf.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• we could not add to any previous investigation by the organisation, or
• we cannot achieve the outcome someone wants, or
• there is another body better placed to consider this complaint,
• it would be reasonable for the person to ask for a council review or appeal. (Local Government Act 1974, section 24A(6))

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How I considered this complaint

3. I considered information provided by the complainant.
4. I considered the Ombudsman’s Assessment Code.
5. Ms B has had an opportunity to comment on my draft decision.

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My assessment

6. The Council assessed Mrs D’s mental capacity as part of a safeguarding assessment. Ms B told us her mother has dementia and is vulnerable so she should not have been alone in the room without the presence of a responsible adult while the Council’s officer carried out the mental capacity assessment. Ms B said the Council failed to view camera footage which had led to the safeguarding referral.
7. When a council carries out a mental capacity assessment, the starting point is a person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. An assessment of someone’s capacity is specific to the decision to be made at a particular time. How a council assesses capacity may vary depending on the complexity of the decision.
8. To put things right Ms B wants social services to provide more information about its November 2021 assessment. She would like to know how the Council gathered its evidence and how it came to its decision her mother had capacity. She would like a second opinion on her mother’s mental capacity.
9. When the Council replied to Ms B’s complaint, it said it was satisfied it had carried out its safeguarding duties and the related mental capacity assessment lawfully. But it said, due to confidentiality reasons, it was not appropriate to share the content of the assessments with Ms B. We could not obtain the information Ms B wants by investigating her complaint. This is because the Council would need to obtain the express consent of Mrs D before sharing her personal information with a family member.
10. The Court of Protection is best placed to reach a decision on a person’s mental capacity where there is a dispute about the outcome of an assessment carried out under the Mental Capacity Act 2005. If a member of Mrs D’s family disagrees with the Council’s assessment of her mental capacity, they can bring the matter before the Court of Protection. 

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Final decision

11. We will not investigate Ms B’s complaint because we could not obtain the information she wants by investigating her complaint and the Court of Protection is best placed to reach a decision on a person’s mental capacity where there is a dispute.

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Investigator's decision on behalf of the Ombudsman