Summary: We will not investigate this complaint about Mrs Y’s medical treatment and Lasting Power of Attorney. The Office of the Public Guardian and the NHS are best placed to consider these complaints. The NHS is not an organisation within our jurisdiction.

The complaint

1. Mr X complained the Council has failed to prioritise his mother’s (Mrs Y’s) welfare. It has not arranged her current and up-to-date therapies that would alleviate her condition. This is increasing risk around Mrs Y’s health. This has caused Mr X distress. He wants the Council to allow Mrs Y to move to another area to get the therapy.

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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 another body better placed to consider the complaint. (Local Government Act 1974, section 24A(6))
3. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the NHS and the Office of the Public Guardian. (Local Government Act 1974, sections 25 and 34A, as amended)
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X complained to us about his mother (Mrs Y) not being allowed to go for a therapy which he believes she should. He says another person has Lasting Power of Attorney for Mrs Y for financial decisions and probably also for health and welfare decisions. However, he does not think that person should have Lasting Power of Attorney and he thinks he should be appointed instead.
8. We cannot consider complaints about the appropriateness of a Lasting Power of Attorney. The relevant body to consider such complaints is the Office of the Public Guardian.
9. If the other person has Lasting Power of Attorney for health and welfare decisions, it is that person who has the legal responsibility to make decisions about Mrs Y’s treatment, if she lacks the mental capacity to make a decision herself. In this case, it is open to Mr X to apply to the Court of Protection if he wishes to challenge that decision, to seek an urgent order about whether treatment is in Mrs Y’s best interests.
10. If the other person does not hold Lasting Power of Attorney for health and welfare decisions, then Mr X should complain to the NHS as the decision concerns healthcare. We cannot consider complaints about the NHS and should Mr X remain unhappy after complaining to the NHS, it is open to him to complain to the Parliamentary and Health Services Ombudsman.

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Final decision

11. We will not investigate Mr X’s complaint because it is about decisions made by an attorney or the NHS, both of whom are not within the Ombudsman’s jurisdiction. It is reasonable for Mr X to refer his concerns to the Office of the Public Guardian, the NHS and the Court of Protection.

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Investigator's decision on behalf of the Ombudsman