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Cheshire East Council (18 015 647)

Category : Adult care services > Residential care

Decision : Closed after initial enquiries

Decision date : 22 Mar 2019

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate this complaint about a care home preventing a resident from smoking. This is because the Council and the care home have provided a satisfactory response and there is not enough remaining injustice to require an investigation.

The complaint

  1. The complainant, whom I refer to as Mrs X, complains that a care home stopped her late father from smoking. Mrs X is dissatisfied with the apology and thinks staff still do not understand the Mental Capacity Act.

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The Ombudsman’s role and powers

  1. 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 an investigation if we believe:
  • the Council has provided a satisfactory response; or
  • the injustice is not significant enough to justify our involvement.

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

  1. We can decide whether to start or discontinue an investigation into a complaint within our jurisdiction. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)

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How I considered this complaint

  1. I read the complaint and the responses from the Council and the care home. I considered comments Mrs X made in response to a draft of this decision.

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What I found

  1. A person with mental capacity should not be prevented from making decisions that other people may think are unwise.

What happened

  1. Mrs X’s late father had mental capacity and was a resident in a care home. He was a lifelong smoker and it was an activity that was very important to him. In 2016 the care home stopped him from smoking. This decision was reversed six weeks later after the home did a risk assessment and a plan put in place which enabled Mr X to smoke. There were two further occasions when the home stopped him from smoking even though staff had been reminded that Mr X had capacity to make his own decisions. This caused considerable distress to Mr X. The home, for example, refused to allow Mr X to smoke without permission from his doctor. The home allowed him to resume smoking after the doctor said it was Mr X’s choice to smoke if he wished.
  2. Mrs X’s father has died. The care home has apologised for the smoking bans but Mrs X is dissatisfied with the letter. She says her father was not stopped from smoking for a short period of time (as stated in the apology) and she rejects the home’s statement that staff had to impose a ban to protect other people. Mrs X says the letter shows staff do not have a good understanding of mental capacity.
  3. The Council provided mental capacity training to the staff at the home. The Council does not intend to take any further action.

Assessment

  1. Mrs X is dissatisfied but the care home has apologised and, despite any shortcomings that Mrs X says are contained in the apology, there is not enough remaining injustice to require an investigation. Her father was upset by the smoking bans but, as he has died, no direct remedy can be provided for him. And, a differently worded apology, while desirable from Mrs X’s perspective, does not represent sufficient injustice to require an investigation. In addition, while Mrs X says the staff do not have sufficient understanding of mental capacity, as her father no longer lives in the home, this, again, does not represent enough injustice to require an investigation. In addition, the Council has provided training and is satisfied that no further action is needed.

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Final decision

  1. I will not start an investigation because the Council/care home has provided a proportionate response and there is not enough remaining injustice to require an investigation.

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Investigator's decision on behalf of the Ombudsman

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