Summary: The Ombudsman will not investigate Mr X’s complaint that the Council failed to inform him of his son’s arrest and covertly applied for a Deprivation of Liberty Safeguard order without his knowledge. An investigation is unlikely to find fault by the Council because Mr X’s son made a capacitated decision not to share any information with his father including about his arrest.

The complaint

1. Mr X complains that the Council withheld information about his son (Mr Y) that he was arrested earlier this year. He also says the Council covertly applied to the Court of Protection for a Deprivation of Liberty Safeguard (DOLS) order without his knowledge. Mr X disputes the Council’s assessment that his son has the mental capacity to decide with whom his information is shared.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word ‘fault’ to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe it is unlikely we would find fault. (Local Government Act 1974, section 24A(6), as amended)
3. We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended)

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How I considered this complaint

4. I have considered comments and information from Mr X and the Council including a recent Court of Protection Order about Mr Y. Mr X had an opportunity to comment on a draft of this decision. I took account of his comments before reaching a final decision.

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What I found

5. Mr Y has a learning disability and autism.
6. Mr X has a long-standing complaint with the Council about his son’s capacity, accommodation and care needs following Mr Y’s removal from Mr X’s care in 2011. Mr X has complained several times to the Ombudsman about these issues.
7. We cannot investigate complaints that we have previously considered and decided so I will not revisit the historical matters here. I will only address recent events that led to Mr X’s current complaint.
8. Mr Y was arrested earlier this year. Mr X is unhappy because the Council did not notify him. Mr X says the Council fabricated his son’s capacity and maintains that his son lacks capacity in all areas. Mr X refers to a medical report which he says confirms this. Mr X provided me with a copy which I have read. The medical report does not support Mr X’s comment. The medical report confirms that Mr Y lacks capacity to understand the consequences of his arrest. Capacity assessments are decision and time specific; they cannot decide if someone lacks capacity in all areas.
9. Mr X is also unhappy that the Council applied to the Court of Protection for a DOLS order without notifying him. He believes a family member should be appointed as Mr Y’s formal representative under the Mental Capacity Act 2005.
10. The Council has provided documentary evidence to show that Mr Y has made a capacitated decision not to share any information about him with Mr X. An investigation has little prospect of finding the Council was at fault for not disclosing information to Mr X about Mr Y's arrest or about the DOLS application. The Council is obliged by law to act in accordance with Mr Y’s wishes where he has made a capacitated decision. If Mr X wishes to challenge the Council’s capacity assessment he will need to do so in the Court of Protection. Only the Court of Protection can make a ruling on such matters.
11. Following the Council’s recent DOLS application the Court of Protection made an order determining Mr Y’s formal representative and his accommodation and care and support needs. The Ombudsman has no legal power to investigate matters decided by a court.

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Final decision

12. The Ombudsman will not investigate this complaint. This is because an investigation is unlikely to find fault by the Council.

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Investigator's decision on behalf of the Ombudsman