Summary: We will not investigate this complaint about a Deprivation of Liberty Safeguards application being authorised for Mrs Y. This is because there is another body better placed to consider part of this complaint and we are unlikely to find fault in the Council’s actions.

The complaint

1. Mr Y complains on behalf of his wife, Mrs Y, about a Deprivation of Liberty Safeguards (DoLS) application being authorised for Mrs Y whilst she was in hospital. Mr Y says the Council wilfully delayed the ending of the DoLS authorisation.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide:

• there is not enough evidence of fault to justify investigating, or
• there is another body better placed to consider this complaint.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

3. The Parliamentary and Health Service Ombudsman investigate complaints about the NHS in England.
4. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

5. I considered information provided by Mr Y and the Council.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. During Mrs Y’s hospital admission, the hospital made an urgent Deprivation of Liberty Safeguards (DoLS) application.
8. The DoLS provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty.
9. The hospital where a person is accommodated is called the ‘managing authority’. Where the managing authority believes the arrangements for a person may amount to a deprivation of liberty, they must apply to the local authority (the ‘supervisory body’) for an authorisation of that deprivation.
10. Although it is the managing authority’s responsibility to seek authorisation, the DoL Code is clear that if a healthcare or social care professional thinks that an authorisation is needed to immediately safeguard the person, they should issue this and then inform the managing authority.
11. Much of Mr Y’s complaint raises concerns about the actions of hospital staff. We are not best placed to deal with such matters. Mr Y should raise his concerns with the hospital directly, about actions and conduct of its staff. If he is unsatisfied with its response, he can complain to the Parliamentary and Health Service Ombudsman (PHSO). The PHSO investigate complaints about the NHS in England.
12. Mr Y could have also challenged the decision to apply and authorise a DoLS on Mrs Y to the Court of Protection, and it is reasonable to have expected him to do so. We will therefore not investigate this part of the complaint.
13. We can consider the Council’s actions, and its role regarding Mrs Y’s DoLS authorisation. On receiving notification that an urgent authorisation was issued for Mrs Y, the Council became the supervisory body. Its role was to determine whether the requirement for standard authorisation could be met. The Council explained that once it became aware that a valid and applicable Health and Welfare Lasting Power of Attorney objected to the DoLS authorisation, the conditions for standard authorisation were not met and the process was ended.
14. An urgent DoLS authorisation lasts for seven days. However, one extension of a strict maximum of seven days can be applied for, to allow the local authority time to conduct its assessment. This did happen in Mrs Y’s case. However, the process was finalised within this timeframe. Whilst I appreciate this likely caused frustration to Mr Y, the law permitted the Council to do this. There is insufficient evidence of fault in the Council’s actions to justify our involvement.

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Final decision

15. We will not investigate Mrs Y’s complaint because there is another body better placed to consider part of this complaint and we are unlikely to find fault in the Council’s actions for part of this complaint.

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Investigator's decision on behalf of the Ombudsman