Summary: The Ombudsman will not investigate Mrs B’s late complaint about the discharge and support provided to her mother, Mrs C, in 2017. This is because it is unlikely any further investigation by the Ombudsman could add to the Council’s response or make a finding of the kind Mrs B wants. There is no good reason for the Ombudsman to exercise his discretion to investigate this late complaint now.

The complaint

1. Mrs B says the Council failed to invite her to meetings it held about her mother’s, Mrs C’s capacity in 2017 when she was discharged from hospital. Mrs B says if her views about Mrs C’s capacity had been included in the assessment she would have been able to provide evidence to show Mrs C lacked capacity to make the decisions she made. In addition, Mrs B says Mrs C should have had a diagnosis of psychosis and received treatment sooner and the Council should have ensured the hospital carried out tests before discharging her.

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The Ombudsman’s role and powers

2. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
3. 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 would find fault, or
• the fault has not caused injustice to the person who complained, or
• the injustice is not significant enough to justify our involvement, or
• 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..

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

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How I considered this complaint

4. I discussed the concerns with Mrs B and considered the information and documentation she provided. I sent Mrs B a copy of my draft decision for comment.

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What I found

5. Mrs C was admitted to hospital in August 2017 following a fall at home. Mrs C was discharged from hospital to an enhanced assessment bed in a care home in November 2017 and discharged to her own home in December 2017 with a package of care.
6. The Council says the hospital contacted it in September 2017 when Mrs C was considered medically fit for discharge. It says it arranged a meeting at the hospital early October 2017 and invited Mrs B to attend. The doctor advised the meeting that Mrs C was deemed to have capacity to decide where she wanted to be discharged to. Mrs B raised concerns about Mrs C’s capacity to make the decisions she had made about returning home with a package of care.
7. The Council says given the families concerns about Mrs C’s capacity it decided to carry out a further capacity assessment which again deemed Mrs C as having capacity to make her own informed choices about her discharge plans.
8. Mrs B says she was not included in discussions or meeting abut Mrs C's capacity and would have been able to provide evidence that she lacked capacity to make her own decisions about her discharge plans.
9. The Council says the outcome of the initial capacity assessment carried out by the hospital was fed back to Mrs B. The Council says given Mrs B’s concerns it decided Mrs C should be discharged to an Enhanced Assessment Bed (EAB) so it could carry out a further assessment of Mrs C's long-term needs. The Council says it was aware of the differences in opinion between Mrs B and Mrs C about Mrs C’s discharge from hospital. It decided the gather information from Mrs C and family members. The Council says records show the allocated worker spoke to Mrs B’s sister and documented her concerns about Mrs C’s lack of capacity. An advocate was appointed to assist Mrc C as she was unsure what she wanted in relation to her discharge. Mrs C told the advocate she wanted to go home with a package of care. The Council deemed Mrs C to have capacity to decide her discharge plans.
10. Mrs B attended a multi-disciplinary meeting in December 2017 at Mrs C’s EAB care home to discuss her transition home with a package of care. Mrs B says the Council failed to consider her views and brought in an advocate behind her back. The Council says they were aware of Mrs B’s views, were satisfied Mrs C had capacity, and decided to engage an independent advocate to clarify Mrs C’s wishes.
11. 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.

12. Mrs B says the Council should have been more proactive in ensuring the hospital completed further mental health tests before deciding Mrs C was medically fit for discharge. The Ombudsman could not say this is fault or make the causal link between Mrs C’s more recent diagnosis of psychosis and her capacity in 2017.
13. The Council undertook a capacity assessment, aware of Mrs B’s and other family members opinions and engaged an independent advocate to act on behalf Mrs C. The Ombudsman could not say whether Mrs C had capacity to make the decisions she did in 2017. There is no good reason to disapply the law to investigate this matter now.

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Final decision

14. The Ombudsman will not investigate this complaint. This is because it is unlikely any further investigation by the Ombudsman could add to the Council’s response or make a finding of the kind Mrs B wants. There is no good reason for the Ombudsman to exercise his discretion to investigate this late complaint now.

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Investigator's decision on behalf of the Ombudsman