Summary: We will not investigate this complaint about the assessment of Mr X’s mental capacity when resident in a care home. There is not enough evidence of fault in the way the Council assessed Mr X’s capacity to justify investigation by us.

The complaint

1. Mrs Y complains on behalf of her late father, Mr X. She says the Council and a care home failed to protect him from harm by not restricting his ability to access alcohol and wrongly deeming him to have mental capacity.

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The Ombudsman’s role and powers

2. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable.

(Local Government Act 1974, section 26A(2) and 34C(2), as amended)

3. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, sections 24A(1)(A) and 25(7), as amended).
4. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
5. 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.

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

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How I considered this complaint

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

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My 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. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision because they make an unwise decision.
10. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

12. The correspondence Mrs Y provided included information from the care provider, Hatzfeld Care. Mr X was physically able to access the community by leaving the care home, either with support, or without. Doing so, he was likely to make unwise decisions that would affect his health. The information from the care home stated how it and the Council had assessed Mr X’s mental capacity. It stated the care home had taken note of a recent capacity assessment when he arrived, and had arranged a further capacity assessment after he settled in. The care home had later applied to restrict Mr X’s liberty, but this was turned down by a capacity assessor, who decided Mr X met the tests laid out in paragraph 12 above. I note Mr X’s capacity to make what were accepted to be unwise decisions was assessed and reassessed while he was resident.
13. Mrs Y understandably wanted to protect her father from harm. However, we cannot substitute our own view of Mr X’s capacity to make decisions for the Council’s view unless there was fault in the process used. If we were to investigate, it is unlikely we would find the Council failed to follow the correct process, bearing in mind that making an unwise decision is not of itself evidence of lack of capacity.

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Final decision

14. We will not investigate Mrs Y’s complaint on behalf of Mr X because there is not enough evidence of fault by the Council to warrant our further involvement.

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Investigator's decision on behalf of the Ombudsman