Summary: We will not investigate this complaint about the way the Council completed a mental capacity assessment before the complainant’s late mother was discharged from hospital in June 2025. There is no worthwhile outcome achievable by our investigation.

The complaint

1. Dr E complains about a mental capacity assessment completed by the Council before his late mother was discharged from hospital to a care home in June 2025. Dr E says the mental capacity assessment completed by the Council was flawed and was not in accordance with proper procedures including the Mental Capacity Act 2005 and the associated code of practice. Dr E says although he was his late mother’s health and welfare attorney the Council kept him from performing his duties and minimised his role. As an outcome Dr E wants the Council to accept the capacity assessment was flawed and led to inadequate safeguarding oversight in the care home placement.

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The Ombudsman’s role and powers

2. 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:

• there is not enough evidence of fault to justify investigating, or
• any fault has not caused injustice to the person who complained, or
• any injustice is not significant enough to justify our involvement, or
• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

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How I considered this complaint

3. I considered information provided by the complainant and the Council.
4. I considered the Ombudsman’s Assessment Code.

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My assessment

5. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
6. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
7. The Mental Capacity Act 2005 introduced the ‘Lasting Power of Attorney’ (LPA), which replaced the ‘Enduring Power of Attorney’ (EPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision on their behalf. The decision must be in the person’s best interests.
8. The Office of the Public Guardian produced a guidance document (OPG603): Mental Capacity Act - Making decisions: A guide for people who work in health and social care (2009) (the ‘Making decisions guidance’). This provides health and social care professionals with an overview of the MCA and guidance on how they should use it. It highlights the presumption of capacity and, in section two, that considerations of capacity are time and decision specific.
9. There is no medical diagnosis that automatically means someone lacks capacity. The Mental Capacity Act says that a person should not be assumed to lack capacity just because of their age, behaviour, any condition they have, or because they couldn’t make a particular decision in the past.
10. Dr E’s mother, Mrs D, was diagnosed with mixed Alzheimer’s Disease and Vascular Dementia in May 2023. She was admitted to hospital in April 2025.
11. The Council’s officer completed a mental capacity assessment in June 2025 to consider whether Mrs D had mental capacity to decide her destination on discharge from hospital. Following this Mrs D was discharged to a short-term nursing placement in a local care home.
12. Dr E complained to the Council to raise concerns about the mental capacity assessment its officer had completed in June 2025. Dr E said capacity assessments completed since 2024 to May 2025 regarding specific decisions confirmed Mrs D lack capacity to make these decisions. Dr E said there had been no cognitive improvement and Mrs D cognitive state had declined to the point she needed to be moved to the dementia floor of the care home she was previously placed. Dr E said the mental capacity assessment could not be relieved on for any best interests of discharge decisions.
13. The Council responded to the complaint and said it did not hold any evidence to suggest Mrs D’s cognitive impairment had improved. It said it did not dispute the accuracy of a previous mental capacity assessment completed by a psychiatrist, but it was a different decision being considered at the time.
14. The Council said the decision to proceed with a mental capacity assessment for the decision relevant at the time of hospital discharge was underpinned by the principles set out in the Mental Capacity Act 2005 and the associated guidance. The Council did identify some learning points for the officer who had completed the mental capacity assessment. It also apologised that it had failed to tell Dr E the date of his mother’s discharge from hospital to the care home as her LPA. Overall, it did not find fault with the mental capacity assessment itself or its decision to complete the assessment.
15. We will not investigate Dr E’s complaint as there is no worthwhile outcome achievable by investigating. The mental capacity assessment was only relevant at the time of discharge, and any new decision would have required a new mental capacity assessment. The relevant legislation and guidance covering mental capacity encourages practitioners to complete mental capacity assessments when a specific decision needs to be made at the time. The Council identified learning outcomes during its investigation for its officers and apologised to Dr E where appropriate. It is unlikely we could achieve more.

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Final decision

16. We will not investigate Dr E’s complaint because there is no worthwhile outcome achievable by investigating.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman