Summary: There is no evidence of fault by the Council in the way it assessed Mrs X’s capacity to decide about her visitors.

The complaint

1. Ms A (as I shall call her) complains the Council would not respond to her request to visit her second cousin Mrs X; she says Mrs X’s daughter is refusing to let her visit.

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The Ombudsman’s role and powers

2. 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 the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
3. 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

4. I spoke to Ms A. I considered the information provided by Ms A and by the Council. Both Ms A and the Council had the opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
7. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

8. 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.

What happened

9. Ms A had lost contact with Mrs X (whom she calls her aunt) until 2021. Mrs X is resident in a care home. Ms A then complained to the Council that Mrs X’s daughter had prevented further contact and told the Council’s adult social care team she did not know who Ms A was.
10. Ms A complained to the Council. The Council responded it was unable to share information about Mrs X without her consent, or the consent of a carer if Mrs X lacked capacity to make the decision herself.
11. Ms A complained to the Ombudsman. She said no-one had asked Mrs X if she wanted Ms A to visit and it was unfair to deprive her of the contact with another family member.
12. The Council carried out an assessment of Mrs X’s capacity to make a decision about who she wanted to visit her. The assessment concluded Mrs X lacked capacity to make that decision.
13. The Council concluded that on balance, as Mrs X was unable to retain sufficient information about Ms A to make a decision, it was not in her best interests for Ms A to visit Mrs X alone. The Council says Mrs X’s daughter is prepared to facilitate visits from Ms A to Mrs X if she wishes.

Analysis

14. The Council was not at fault in not disclosing information about Mrs X without her consent.
15. The Council undertook an appropriate assessment of Mrs X’s capacity to make her own decision about a visit. It took a decision in Mrs X’s best interests on the basis of the capacity assessment. It is not the role of the Ombudsman to criticize the merits of that decision, which was taken properly in the light of all the relevant information.

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Final decision

16. I have completed this investigation as there was no fault in the way the Council conducted the capacity assessment and reached a decision in Mrs X’s best interests.

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Investigator's decision on behalf of the Ombudsman