Summary: The Ombudsmen have decided not to investigate a complaint about a Council and an NHS Trust’s decision not to share a surgery date with a patient’s family because it was late. We have seen no reason why the complainant could not have brought the complaint to the Ombudsmen sooner.

The complaint

1. Mrs A complains that University Hospitals Bristol NHS Trust (the Trust) and South Gloucestershire Council (the Council) failed to tell her about an appointment to extract her son, Mr B’s teeth while she was preparing to appeal a Court Order authorising the treatment. She considers this course of treatment was unnecessary and says the decision to go ahead has caused her and her family great anguish and distress.
2. Mrs A wants the Trust and the Council to acknowledge they acted improperly by not telling her about the procedure in advance.

Back to top

The Ombudsmen’s role and powers

3. The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
4. The Ombudsmen cannot investigate late complaints unless they decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to the Ombudsmen about something an organisation has done. (Local Government Act 1974, sections 26B and 34D, as amended, and Health Service Commissioners Act 1993, section 9(4).)

Back to top

How I considered this complaint

5. In reaching my decision, I took account of the information Mrs A provided to the Ombudsmen. I also reviewed the complaints correspondence and responses from the Trust and the Council. Mrs A has commented on a draft of this decision.

Back to top

What I found

Background

6. Mr B has a genetic condition which severely impairs his sight and hearing. He did not have mental capacity to make decisions about his care. In April 2017 the Trust applied to the Court of Protection to remove Mr B’s teeth. In July 2018 the Court of Protection decided that ‘a full clearance of [Mr B’s] remaining teeth… is the only way forward and that the treatment plan represents his best interests.’ The Court refused permission to appeal based on the overwhelming evidence that the treatment plan was in Mr B’s best interests.
7. Mrs A had 21 days to apply for permission to appeal to the Court of Appeal. The Trust advised it would list Mr B for surgery a week after this time had passed. The Trust said it checked two months after the date passed and no appeal had been filed.
8. The Trust listed Mr B for surgery on 13 December 2018. However, that morning Mrs A removed Mr B from his residence and he missed his surgery slot.
9. The Trust relisted Mr B for surgery in January 2019. However, following legal advice, the Council’s safeguarding team told the Trust not to disclose the surgery date to Mrs A. It said there was no legal basis to tell her as she was not named on the Order and did not have Power of Attorney.
10. On 17 January 2019 Mr B had his teeth extracted as per the Court of Protection Order.
11. Mrs A complained to the Council and the Trust on 15 January 2020. The Council responded on 25 February and the Trust responded on 9 March. The responses advised Mrs A she could complain to the Ombudsmen if she remained unhappy with the responses.
12. Between March and May 2020 Mrs A sent further complaints to the Council. It responded on 4 May and 22 June. Both responses advised Mrs A she should complain to the Ombudsmen if she remained dissatisfied.
13. Mrs A complained to the Ombudsmen on 6 August 2020.

Analysis

14. Mrs A’s complaint is late. The main delay was complaining to the Council and the Trust, which Mrs A did not do for almost a year after she became aware of the events she complaining about.
15. Mrs A says she did not complain sooner because she had requested information and records from the Council and Mr B’s care provider. Her first request was in February 2019 but the Council did not provide the records until October 2019. Mrs A and her advocate then made further enquiries with the Council about some redacted records. She also says the records from the care provider were extensive and took time to go through.
16. I do not consider the request for records should have prevented Mrs A from making a complaint about the decision not to tell her of her son’s surgery date. If Mrs A wanted specific information from the records, she could have asked for this at the same time as making her complaint. If necessary, she could have added to her complaint later.
17. Mrs A also had chance to complain to the Ombudsmen sooner following the responses from the Council and the Trust. I note that each response letter or email from the Council and the Trust from February 2020 onwards signposted her to the Ombudsmen should she remain unhappy with responses. Mrs A chose to pursue her complaints further with the Council rather than complain the Ombudsmen sooner.
18. Even if Mrs A made her complaint within the time limit, the complaint the Ombudsmen could consider would be limited. We could not look at the decisions by the Courts. The Council and the Trust appear to have provided reasonable explanations in their complaint responses about the reasons Mrs A was not told about Mr B’s second surgery date. This was based on legal advice the Council obtained and shared with the Trust.
19. It does not seem there was any duty for the Council or Trust to tell Mrs A of the surgery date. The decision not to share this information appears to have been made in Mr B’s best interests. It ensured he received the treatment he needed and that was ordered by the Court. It is therefore unlikely the Ombudsmen would find fault with this decision.

Back to top

Decision

20. Based on the information I have seen, the complaint is late and I am satisfied Mrs A could have reasonably been expected to complain to the Ombudsmen sooner. I therefore do not consider there is any reason to exercise discretion to investigate this complaint.

Back to top

Investigator's decision on behalf of the Ombudsman