Summary: Mrs X complained a Best Interest Assessor disclosed confidential information about a phone call she had in relation to her grandmother’s Deprivation of Liberty Safeguards assessment to another relative without her consent. I have discontinued this investigation because the conflicting evidence means I cannot make a finding, even on the balance of probabilities. Further investigation into the matter will not lead to a different outcome and therefore we cannot achieve the outcome Mrs X wants.

The complaint

1. Mrs X complained the Council breached confidentiality when a social worker disclosed a telephone discussion they had with Mrs X in connection with a Deprivation of Liberty Safeguards (DoLS) assessment of another relative.
2. Mrs X said this worsened family relations which were already fragile and caused her distress and upset. Mrs X wants the Council to apologise.

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The Ombudsman’s role and powers

3. The Ombudsman investigates 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 may decide not to continue with an investigation if we decide:

• further investigation would not lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, section 24A(6))

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How I considered this complaint

4. I spoke to Mrs X about her complaint and considered the information she provided.
5. I considered the Council’s response to my enquiry letter.
6. Mrs X and the Council had an opportunity to comment on my draft decision. I considered comments before I made a final decision.

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What I found

What happened

7. Mrs X had concerns about her grandmother, Mrs Z, who went to live in a care home following a period of time in hospital. Mrs X said Mrs Z had told her on several occasions that she wanted to go back home rather than stay and live in the care home. Mrs X contacted the Council’s adult social services department to express her concerns. The Council said it was assessing whether Mrs Z required a DoLS and would ensure Mrs X’s concerns were considered. The Council assured Mrs X that it would keep her contact confidential.
8. The Council’s Best Interest Assessor (BIA) contacted Mrs X by telephone to discuss her concerns. Mrs X said she told the BIA that Mrs Z kept asking to go home and that she said she had been ‘bunged in a care home’ by her relatives Mrs F and Mr H. Mrs X said the BIA told her that Mrs F and Mr H were doing the right thing by their relative. Mrs X said she gave the BIA examples of past incidents that showed that Mrs F was not a caring person. The BIA said she would call and speak to Mrs F and Mr H as part of Mrs Z’s assessment. Mrs X says she stressed the importance to the BIA that they do not disclose they had spoken to Mrs X and to keep the discussion they had confidential.
9. Records show the Council and an NHS professional assessed Mrs Z as having the mental capacity to decide where to live and therefore there was no need to continue with the DoLS assessment. Mrs Z decided she wanted to stay and live at the care home.
10. Following her phone call with the BIA Mrs X said her relative, Mrs F, contacted her by text message. Mrs F said the BIA had called and told her that Mrs X had reported her to the Council. Mrs X said the detail in the text messages meant the BIA must have broken confidentiality and disclosed details of the conversation she had with the BIA. Although Mrs F had relayed back an inaccurate version of them. Mrs X said there was no other way that Mrs F could have known that she had spoken with the Council or the BIA about Mrs Z.
11. Mrs X also had a conversation with Mrs F and her partner, about the matter which she recorded. The recordings appear to show Mrs F stating the name of the BIA and explaining to Mrs X what they had said to her.
12. Mrs X complained to the Council about the BIA. She said the BIA broke confidentiality by disclosing to Mrs F that she had contacted the Council about Mrs Z. Mrs X said this has led to family relations breaking down which were already fragile. Mrs X wanted the Council to explain to Mrs F that she did not contact the Council to report her but it was out of concern for Mrs Z’s welfare only.
13. The Council responded to Mrs X’s complaint. It said it had reviewed its records and had spoken with the BIA. It said there was no evidence to show the BIA had disclosed Mrs X’s phone call to anybody else. It said the BIA had denied disclosing any information to Mrs F or Mr H about the conversation they had with Mrs X. The Council said the BIA had also contacted another family member after Mrs X gave them their details who in turn also spoke with Mrs F and Mr H. The Council said Mrs F and Mr H had asked the BIA whether they had spoken with anyone else. The BIA said they were not at liberty to say. The Council said believed Mrs F and Mr H made an assumption that Mrs X had contacted the Council. Upon reviewing its records however the Council did accept the BIA had shared too much information with another family member, although this was unrelated to Mrs X’s complaint.
14. Mrs X was unhappy with the Council’s response. She provided it with copies of the text messages and recordings which show Mrs F stating what the BIA told her. Mrs F has also confirmed to the Council that the BIA told her about their phone call with Mrs X.
15. The Council responded to Mrs X and declined to escalate the complaint to stage 2. It said the text messages did not prove that the BIA disclosed anything. It said it was a ‘he said, she said’ scenario and it remained the word of the BIA against Mrs X and Mrs F. Therefore, further investigation would not achieve a different outcome.
16. Mrs X remained unhappy and complained to us.

My findings

17. This complaint is about one person’s word against another and both Mrs X and the Council believe they have valid evidence to support their case. I have considered the following:
• Text messages and voice recordings show Mrs F making specific reference to speaking with the BIA. However, the BIA has denied this was the case.
• The BIA had conversations with multiple family members. I cannot exclude the possibility that Mrs F made an assumption about Mrs X based on disclosures from other family members.
• The BIA accepted disclosing confidential information to another family member about Mrs Z, and therefore the Council’s view is they had nothing to gain by lying about disclosing information.
• The BIA recorded in the case notes that she refused to disclose to other family members that Mrs X had provided them with their contact details.
• There is no other evidence in the case notes which could help me make a sound finding.
18. Based on the above I have discontinued this investigation. This is because after considering the evidence available, I cannot, even on the balance of probabilities say whether the BIA disclosed to Mrs F that they had spoken with Mrs X. This means I cannot make a fair and robust decision around whether there was fault. Further investigation into this matter will not lead to a different outcome and without a finding of fault we cannot achieve the outcome Mrs X wants.

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Final decision

19. I have discontinued this investigation because further investigation would not lead to a different outcome and we cannot achieve the outcome Mrs X wants.

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Investigator's decision on behalf of the Ombudsman