Summary: We will not investigate Ms X’s complaint that care home staff are failing to facilitate contact between her and her mother, Ms Y. There is insufficient evidence of fault and it is unlikely an investigation would lead to a different outcome or what Ms X wants.

The complaint

1. Ms X complains care home staff are not doing enough to facilitate contact between her and her mother, Ms Y, who is a care home resident. She says this is causing her distress. She wants care home staff to communicate with her and encourage Ms Y to agree to regular contact with her.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers. 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 care provider, or
• it is unlikely further investigation will lead to a different outcome, or
• we cannot achieve the outcome someone wants.

(Local Government Act 1974, sections 34B(8) and (9))

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How I considered this complaint

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

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My assessment

5. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.
6. In its complaint response, the care provider said Ms Y had been assessed as having capacity to make her own decisions regarding contact. It said Ms Y had confirmed with both her social worker and care home staff what level of contact she wants with Ms X. It acknowledged there were occasions where care staff did not facilitate contact between Ms X and Ms Y but said this was because care staff were acting in accordance with Ms Y’s wishes.
7. We will not investigate this complaint. Ms X has been assessed as having capacity to make her own decisions regarding contact and the care provider states staff are acting in accordance with her wishes. Although Ms X may not agree with Ms Y’s choices, these are Ms Y’s choices to make. We would expect care staff to respect a person’s choices regarding contact, where they have been assessed as having capacity and so an investigation is unlikely to find the care provider at fault.
8. If Ms X does not agree that Ms Y has capacity to make her own decisions about contact, it is open to her to complain to the council currently overseeing Ms Y’s care and dispute the outcome of the capacity assessment. If she remains unhappy following her complaint, she can complain to the Court of Protection. Only the Court of Protection can resolve a dispute about a person’s mental capacity.

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Final decision

9. We will not investigate Ms X’s complaint because there is insufficient evidence of fault and it is unlikely an investigation would lead to a different outcome or achieve what Ms X wants.

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Investigator's decision on behalf of the Ombudsman