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Wiltshire Council (19 010 129)

Category : Adult care services > Residential care

Decision : Closed after initial enquiries

Decision date : 11 Nov 2019

The Ombudsman's final decision:

Summary: The Ombudsman will not investigate Mr A’s complaints about care provided to his mother, Mrs B. This is because Mr A is not considered a suitable representative to complain on behalf of Mrs B.

The complaint

  1. Mr A says his mother’s, Mrs B’s, care provider has banned him from visiting her on two separate occasions, does not have a robust enough policy for dealing with Urinary Tract Infections (UTI) and is unhappy the Council is refusing to discuss matters with him or investigate why his Power of Attorney was revoked.

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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 or continue with an investigation if we believe:
  • it is unlikely we could add to any previous investigation by the Council, or
  • it is unlikely further investigation will lead to a different outcome, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint.

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

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How I considered this complaint

  1. I considered the information and documentation Mr A provided. I sent Mr A a copy of my draft decision and discussed his comments on it with him.

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What I found

  1. Mr A is unhappy with the actions of Mrs B’s care provider, and the way the Council is dealing with him.
  2. The Ombudsman does not consider Mr A a suitable representative to complain on behalf of Mrs B. This is because Mr A’s brother holds Power of Attorney for Mrs B’s health and welfare and he can raise concerns about her care if he is concerned under this responsibility. Mr A says his brother is abusing his Power of Attorney and is concerned he has coerced Mrs B to remove him as Power of Attorney. Mr A says the Council should investigate why his Power of Attorney was revoked.
  3. Mrs B is currently deemed to have capacity to make decision for herself. Mr A disputes this and says she does not have capacity.
  4. The Mental Capacity Act 2005 says a person must be assumed to have capacity unless it is established that he lacks capacity. A person should not be treated as unable to make a decision:
  • Because he makes an unwise decision.
  • Based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour.
  • Before all practicable steps to help the person to do so have been taken without success.
  1. The Ombudsman could not say Mrs B lacks capacity to make decisions. Without consent from Mrs B confirming she wants Mr A to act on her behalf the Ombudsman will not investigate Mr A’s complaint.
  2. If Mr A disputes Mrs B has capacity to make decisions about her care needs, her health or who should be her Power of Attorney, he can ask the Court of Protection to consider his views. Information about the Court of Protection can be found on the website below:

https://www.gov.uk/courts-tribunals/court-of-protection

  1. If Mr A is concerned his brother is not acting in the best interests of Mrs B he can ask the Office of the Public Guardian (OPG) to consider his views. Information about the OPG can be found on the website below:

https://www.gov.uk/government/organisations/office-of-the-public-guardian

  1. The Council has explained to Mr A it is currently investigating concerns raised about him under its responsibility for safeguarding vulnerable adults, this includes restricting his contact at the care home. Until the safeguarding investigation is completed the Ombudsman could not make a finding on whether there is any fault with the decision to restrict Mr A visiting Mrs B at her home.

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Final decision

  1. The Ombudsman will not investigate this complaint. This is because he is not considered as a suitable representative for Mrs B.

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Investigator's decision on behalf of the Ombudsman

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