Summary: Mr X complained about the Council’s decision not to authorise a Deprivation of Liberty Safeguards (DoLS) for his adult child, Y. We ended our investigation because the Court of Protection is best placed to address his concerns.

The complaint

1. Mr X complained the Council failed to properly assess his adult child, Y, for a Deprivation of Liberty Safeguards (DoLS) authorisation. Mr X said this negatively affected Y’s care and support and their future plans as it deemed Y had the mental capacity to make decisions about their accommodation and care and treatment. Mr X said he also commissioned a private organisation to independently assess Y and that this cost him a significant amount of money. He said the matter has caused him and his family distress. He wants the Council to acknowledge it was at fault and provide him with a financial remedy for the money he spent on the private assessment, for the disruption to Y’s care and for the distress caused.

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The Ombudsman’s role and powers

2. 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)
3. We investigate 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 continue 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), as amended, section 34(B))

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How I considered this complaint

4. I spoke with Mr X and considered information he provided.
5. I considered information provided by the Council.
6. Mr X and the Council had the opportunity to comment on the draft version of this decision. I considered their comments before making a final decision.

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What I found

Mental Capacity Act

7. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Deprivation of Liberty Safeguards (DoLS)

8. The Deprivation of Liberty Safeguards 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. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
9. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
10. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.

Court of protection

11. The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
12. 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.

What happened

13. Mr X’s adult child, Y, has a neurodevelopmental condition and a learning disability. Y is non-speaking and they lack the mental capacity to make certain decisions about their life. Mr X and his wife are deputies for Y’s care, welfare and properties and affairs.
14. In 2021, Y began residing at a specialist college for further education. As Y lacked the mental capacity to make decisions about their accommodation and care and treatment, the Council had authorised the deprivation of Y's liberty under a DoLS for Y to stay at college. Y was not allowed to leave the premises. Mr X and his wife said the plan was for Y to remain at the placement until at least mid-2025.
15. In March 2024, on behalf of the Council, a clinician and a best interest assessor completed a mental capacity assessment with Y to establish whether the DoLS was still necessary and proportionate to remain in place. A best interest assessor is an individual within health and social care services who assesses whether a care and treatment plan is in the best interest of a person who lacks the mental capacity to make that decision for themselves. During the assessment, Mr X said a speech and language therapist was supporting Y to use a speech device which was intended to help them to express their views.
16. In April 2024, the Council told Mr X following the assessment, it had concluded Y had the mental capacity to decide where they wanted to live and to choose their care and treatment.
17. Mr X disagreed with the Council’s decision. In August 2024, Mr X decided to pay for a private clinical assessment. The private clinician said in their report they were unable to agree with the Council’s decision that Y had the mental capacity to make decisions about where they wanted to live and their care and treatment due to how the Council had carried out the assessment. The private clinician recommended the Council should carry out a further assessment using different approaches and techniques with Y.
18. As Mr X disagreed with the outcome of the assessment, in October 2024, he complained to the Council about it. As part of his complaint he said:
• the speech and language therapist had relied heavily on the speech device for Y to express their views. Mr X said the device was not reliable as it did not reflect Y’s learning disability; and
• the outcome of the assessment had affected Y’s placement at the college. Mr X said he had to suspend Y’s placement whilst an investigation into his concerns was ongoing.
19. The Council responded to Mr X’s complaint and said:
• where a person is assessed as having mental capacity, it cannot authorise the deprivation of their liberty under a DoLS as they are able to decide their care and treatment and where they want to live;
• it had reviewed documents from the clinician and the best interest assessor and other supporting documents in relation to the assessment and was satisfied the assessment was appropriate and complied with the DoLS Code of Practice and the Mental Capacity Act;
• the Mental Capacity Act states a person must be given all practicable help before anyone treats them as not being able to make their own decisions. It said this may include the support of speech and language therapists and the use of communication tools or methods that may enhance the person’s ability to be involved in the process; and
• if Y was to return to college, then staff at the college would need to request a further DoLS assessment.
20. Mr X remained unhappy and complained to us. Mr X said although Y had the option to return to college, he would not want this as the college was relying on a speech device to support Y to express their views.

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Findings

21. I decided to end my investigation. This is because we cannot achieve the outcome Mr X wants, which is essentially that the Council change its decision about Y’s capacity. Only the Court of Protection can make this decision.
22. Even if I had completed my investigation and found fault with the Council’s assessment process, I would only be able to recommend the Council to carry out another assessment following the correct process. Mr X does not want a further assessment.

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Decision

23. I decided to end my investigation as the Court of Protection is best placed to address Mr X’s concerns.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman