Summary: We will not investigate this complaint about the Council’s knowledge on the Nearest Relative under the Mental Health Act, and how it treated the Nearest Relative when their relative was in mental health crisis. The Council has apologised to the complainant for the distress it caused and has committed to training relevant staff. We are satisfied with the Council’s actions; it is unlikely an Ombudsman investigation would reach a different outcome.

The complaint

1. Mr C says the Council has no understanding of the Mental Health Act and was unaware of his rights as Nearest Relative. Mr C thinks the Council made the wrong decision about his relative’s capacity to decide not to share information with him. Mr C thinks there should be a better balance between the rights of the patient and the rights of the Nearest Relative. Mr C thinks the Council needs training on these issues.

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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:

• we could not add to any previous investigation by the organisation, or
• further investigation would not lead to a different outcome, or
• there is another body better placed to consider this complaint, or
• there is no worthwhile outcome achievable by our investigation.

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

3. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

4. I considered information provided by the complainant.
5. I considered the Ombudsman’s Assessment Code.

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My assessment

6. Mr C contacted the Council for information when his relative was in mental health crisis. The Council has apologised to Mr C that he did not feel listened to, and that it did not give him relevant advice. The Council accepts this caused Mr C additional distress until the next day when it resolved the issue and has said sorry. The Council has also committed to relevant staff training.
7. Mr C feels the Council also needs training on defining mental capacity and balancing the rights and needs of the patient versus those of the Nearest Relative in the interests of the patient. The Council follows the Mental Capacity Act 2005 and associated statutory guidance, and the individual’s rights under the General Data Protection Regulation. When responding to the complaint, the Council has looked at the notes it took at the time and spoke with Mr C’s relative.
8. Although Mr C would have liked the Council to share more information the Council has explained the reasons why it could not. It is unlikely we would add to the Council’s investigation or find enough evidence of fault. Mental capacity is time and decision specific, so not having capacity to decide on some issues does not mean you cannot decide on others. A relevant professional met with Mr C’s relative and assessed the relative could decide they did not want their information shared with Mr C. It is unlikely we would find evidence of fault. If Mr C wishes to dispute his relative’s mental capacity, he may be able to apply to the court of protection.

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Final decision

9. We will not investigate Mr C’s complaint because we are satisfied with the organisation’s actions to acknowledge the impact on Mr C by an apology, and to improve future service by training relevant staff. It is unlikely we would add to the Council’s investigation or achieve a different outcome.

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Investigator's decision on behalf of the Ombudsman