Summary: Mrs X complained about the failure to provide Miss C with appropriate care and support when she moved to a care home. She also complained about being unfairly treated by the care home. We have not found fault. The care home acted on advice from medical professionals and Mrs X had no legal right to be make decisions about Miss C’s care. We found no evidence of neglect as alleged by Mrs X.

The complaint

1. Mrs X complains a nursing home, commissioned by the Council, failed to provide an appropriate level of care and support to her friend, Miss C. She claims this caused a rapid deterioration in Miss C’s physical and mental health. She raises specific concerns about the:
1. failure to improve Miss C’s mobility when she was admitted to the care home; and
2. lack of social stimulation.
2. Mrs X also complains about attempts made to discredit her and restrict her involvement with Miss C.

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The Ombudsman’s role and powers

3. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word fault to refer to these. We consider whether there was fault in the way an organisation made its decision. If there was no fault in how the organisation made its decision, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. Part 3 and Part 3A of the Local Government Act 1974 give us our powers to investigate adult social care complaints. Part 3 is for complaints where local councils provide services themselves. It also applies where a council arranges or commissions care services from a provider, even if the council charges the person receiving the care. In these cases, we treat the provider’s actions as if they were council actions. (Part 3 and Part 3A Local Government Act 1974; section 25(6) & (7) of the Act)
5. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:

• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)

6. Mrs X is a friend of Miss C. We consider her to be a suitable person to act on behalf of Miss C. Miss C lacks capacity to bring a complaint herself.
7. We normally name care homes and other care providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), as amended)
8. 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

9. I spoke with Mrs X about her complaint and considered the written information she provided.
10. I made written enquiries of the Council and considered its response.
11. Although I have been provided with all Miss C’s case records and a full account of what happened, for reasons of confidentiality I am unable to include some relevant details in this decision statement as it will be shared with Mrs X. This is because she does not have legal authority to act on behalf of Miss C.
12. Mrs X and the Council had an opportunity to comment on my draft decision. I considered their comments before making a final decision.

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What I found

Mental Capacity Act

13. The Mental Capacity Act 2005 is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
14. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome.
15. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

What happened

16. Miss C has dementia and multiple serious health conditions. She was admitted to hospital in May 2023. As she was unable to return home, the Council arranged a placement at a nursing home (“the Care Home”). At that time, it was thought Miss C had no next of kin.
17. Mrs X visited Miss C at the care home every fortnight.
18. Mrs X became concerned about the level of care being provided to her friend. She felt Miss C was being provided with only a basic level of personal care, and she was not being rehabilitated to improve her mobility. She also felt she was being denied an opportunity to socialise with other residents because she was not taken into the communal lounge.
19. When she raised her concerns with the Care Home, Mrs X was told Miss C was too poorly to receive physiotherapy and attempts had been made to help Miss X to move to a chair. The Care Home said none of its chairs were suitable and posed a risk to Miss C.
20. Mrs X became aware Miss C had money in her bank account that could be used to pay for private physiotherapy and a specialist chair. Mrs X contacted the Council to say she wanted to become Miss C’s official advocate in order to have more influence over decisions that should be made in Miss C’s best interests.
21. Around this time, the Care Home became aware that Miss C had a daughter, Miss P. Miss P became involved in her mother’s care. This meant Mrs X was not the primary point of contact, as she had been previously.
22. Miss P raised concerns about Mrs X’s involvement. Mrs X was initially told by the Care Home that she was not allowed to visit, however this instruction was quickly withdrawn because it was not considered to be in Miss C’s best interests.
23. Mrs X was told she would not be allowed to be Miss C’s advocate. This was because it was in Miss C’s best interest to have someone entirely independent as her advocate.
24. Mrs X complained to the Care Home about the poor care she believed was being provided to Miss C. In response the Care Home said:

• Miss C was already bedbound when she became resident there;
• Miss C had two physiotherapy sessions but was unable to follow instructions and mobilise. She was therefore discharged by the service;
• it ensured Miss C had social interaction despite being unable to attend in the communal lounge; and
• Miss C’s health had not declined and was currently stable.

25. Dissatisfied with this response, Mrs X brought her complaint to the Ombudsman. She was unconvinced about what she had been told about the action taken by the home to provide stimulation and activities for Miss C. She was also distressed by the decision not to allow her to be Miss C’s advocate. Mrs X believes this was because the Care Home manager had a personal grievance against her.

Analysis

26. The Court of Protection has jurisdiction to appoint a deputy when someone has lost capacity to make decisions about their health, welfare, and finances. Mrs X has no legal status in terms of making decisions on behalf of Miss C. This means the Care Home had no obligation to follow Mrs X’s preferences about Miss C’s care. It also meant that Mrs X did not have all relevant information about Miss C’s state of health that influenced the decisions by the Care Home.
27. In this context, I will consider Mrs X’s areas of complaint below.

Mrs C’s care

28. It is Mrs X’s strongly held belief that Miss C’s health deteriorated because she was left in bed without any meaningful social contact. I have seen no evidence to support this view.
29. Miss C had multiple health problems when she moved into the Care Home. This is evidenced by the case notes I have seen from the time she was in hospital.
30. Once she had settled in, the Care Home acted as we would expect by arranging for her to be seen by a physiotherapist. It was the professional opinion of the physiotherapist, not the Care Home, that Miss C should be cared for in bed. This was a clinical decision, and the Ombudsman would not expect the Care Home to not follow this advice when asked to by Mrs X.
31. The case records show the Council has monitored the placement and is satisfied Miss C is being cared for appropriately.
32. The Care Home has explained what action it has taken to ensure Miss C has social interaction and access to personal items. There is a clear difference of opinion between Mrs X and the Care Home about this issue.
33. In the absence of any independent evidence to support Mrs X’s concerns, I have not found fault.

The treatment of Mrs X

34. I have seen no evidence of a personal grievance being the reason behind Mrs X no longer being considered as Miss C’s official advocate. The decision to not appoint Mrs X was made by the Best Interest Assessor, not the Care Home.
35. The case records show both the Council and the Care Home have tried to reassure Mrs X that the care being offered to Miss C is appropriate for someone with Miss C’s complex health needs. I have seen no evidence of any attempt to discredit Mrs X and therefore find no fault with the actions of the Care Home.

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Final decision

36. I have completed my investigation. I have not found fault by either the Care Home or the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman