Summary: We will not investigate Mrs X and Mrs Z’s complaint about a Mental Capacity Act (MCA) assessment carried out for their mother. There is no worthwhile outcome achievable by our investigation.

The complaint

1. Mrs X and Mrs Z complain the Council did not properly consider their mother, Mrs Y’s best interests during a mental capacity assessment.

Back to top

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 no worthwhile outcome achievable by our investigation. (Local Government Act 1974, section 24A(6), as amended, section 34(B))

Back to top

How I considered this complaint

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

Back to top

My assessment

5. Mrs X and Mrs Z complain on behalf of their late mother, Mrs Y. who was the subject of a Mental Capacity Act (MCA) assessment and best interests’ decision by the Council. Mrs X and Mrs Z say Mrs Y’s partner may have had undue influence in the meeting despite not representing Mrs Y’s best interests.
6. Mrs X and Mrs Z say due to the undue influence, Mrs X was held in a nursing facility for seven weeks. During this time Mrs Y’s health deteriorated and Mrs Y passed away shortly after leaving the home.
7. The Council say there were two initial care act assessment meetings. During these the Council identified concerns with Mrs Y’s capacity to make informed decisions about her care. The Council then carried out a MCA assessment.
8. 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.
9. The MCA assessment determined Mrs Y did not have the capacity to make decisions about how and where her care needs were to be met.
10. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
11. Mrs Y’s powers of attorney did not agree on Mrs Y’s best interests, so the Council engaged in best interests decision making. When considering Mrs Y’s best interests, the Council consulted with Mrs Y’s friends, family, and those involved in her care. The Council considered these views when determining Mrs Y’s best interests.
12. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests. The Ombudsman cannot decide what was in Mrs Y’s best interests. We will not investigate this complaint because there is no worthwhile outcome achievable by our investigation.

Back to top

Final decision

13. We will not investigate Mrs X and Mrs Z’s complaint. There is no worthwhile outcome achievable by our investigation.

Back to top

Investigator's decision on behalf of the Ombudsman