Summary: The Ombudsmen have decided they will not investigate a complaint about a person’s health and social care as it has not been made by a suitable person. Further, it would be reasonable to use an alternative legal remedy.

The complaint

1. Ms A complains about London Borough of Enfield’s (the Council’s) decision to classify her daughter, Ms B, as having a learning disability rather than as having complex learning difficulties.
2. Ms A said this has influenced, and is continuing to influence, judicial proceedings. Ms A said this, in turn, means Ms B is not receiving appropriate care and treatment for her needs and has been inappropriately treated under the Mental Health Act (the MHA).
3. Ms A said the failure to provide appropriate care means Ms B has been denied her Article 2, 3, 5, 6, 8 and 14 Human Rights. Further, Ms A complains the Council has racially discriminated against Ms B as it had not shown “any regard for black lives matter”.
4. In addition, Ms A complains about North Central London Clinical Commissioning Group’s (the CCG’s) decision to pass its funding for Ms B’s care to the Council. She said the CCG did so despite her having advised it that the Council had misrepresented Ms B’s needs in its records.

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The Ombudsmen’s role and powers

5. The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, a single team has considered these complaints acting on behalf of both Ombudsmen. (Local Government Act 1974, section 33ZA,as amended, and Health Service Commissioners Act 1993, section 18ZA)
6. The Ombudsmen may investigate complaints made on behalf of someone else if they have given their consent. The Ombudsmen may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if the Ombudsmen consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, section 26A(2)) (Local Government Act 1974, section 26A(1))
7. 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 and Health Service Commissioners Act 1993, section 4(1b))

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How I considered this complaint

8. I considered Ms A’s written complaints along with the supporting information she provided via email. I shared a confidential draft decision with Mr A and invited her comments on it. I considered the comments I received in response before making a final decision.

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What I found

9. Complaints can be made ‘on behalf of’ someone by a wide range of people or organisations, but only with that person’s consent. Where someone is unable to complain in their own right the Ombudsmen must consider whether their representative can represent their best interests.
10. Ms A is Ms B’s mother. However, a close family relationship does not give an automatic right to access a person’s confidential information, or to act on their behalf.
11. Ms B is currently being treated under the MHA. A court has displaced Ms A as Ms B’s Nearest Relative. (Nearest Relative is a term used in the MHA for a member of a detained person’s family who is given rights and responsibilities.) The court appointed a Council officer to take on the role on an interim basis. Ms B’s current placement does not have any direct discussions with Ms A about Ms B’s care.
12. Since 2015 there have been around 25 Court of Protection hearings about Ms B’s care. She has been appointed an Official Solicitor to represent her and advocate for her during Court of Protection hearings. A further hearing is scheduled for January 2022.
13. Ms B provided the Ombudsmen with a document titled Unified Consent Form For All Medical & Health Services. This notes “This form is signed as my consent for my mother, [Ms A], also my nearest relative, relevant person and Legal/DWP Appointee (COP Judgement dated 30/5/17) to make representations on my behalf whether I am present or not (or of sound mind or not)…” This consent form was signed by Ms B on 11 January 2020. The witness to the signature was Ms A.
14. The information detailed in paragraphs 11 and 12 casts considerable doubt on whether Ms A is a suitable person to bring this complaint to the Ombudsmen on Ms B’s behalf. It would not be appropriate to rely on the generic consent form from January 2020 (detailed in paragraph 13) as Ms A is no longer Ms B’s Nearest Relative, and because it was witnessed by Ms A rather than an independent witness.
15. The regular involvement of the Court of Protection along with the Nearest Relative displacement hearings suggest the courts do not accept as Ms A’s representative or appointee/attorney.
16. Overall, despite the family connection, we cannot say that Ms A is a suitable person to bring this complaint to the Ombudsmen on Ms B’s behalf. Ms B has other independent representation in matters which affect her care and treatment.
17. In addition, the main claimed injustice is the impact the Council’s actions have had, and are continuing to have, on court proceedings. This relates to decisions the Court of Protection is being asked to make about the care and treatment of Ms B. As such, the complaint partly relates to the conduct of court proceedings – in as much as Ms A is contending one of the parties to those proceedings (the Council) is failing to supply accurate information. The correct way to challenge such a concern would be via the Court itself.
18. Ms A has advised us she has applied to the Court of Protection to make a decision on Ms B’s behalf. In addition, she explained that she has formally appealed Ms B’s Community Treatment Order. Further, Ms A said she has “made an Application to the High Court/QB to address the MHA dispute of learning disabilities vs learning difficulties”.
19. As such, Ms A has actively pursued her concerns about Ms B’s care and treatment via a number of legal routes which would be able to provide the outcome she ultimately seeks. Namely, alternative care and treatment for Ms B.
20. As noted in paragraph 7, the Ombudsmen cannot investigate a complaint when it would be reasonable for the matter to be considered at court. Given there is an alternative legal remedy open to Ms A, and that it would be reasonable for her to use it, the Ombudsmen cannot investigate her complaint about the same matters.

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Decision

21. I have closed this case on the basis that:

• Ms A is not a suitable complainant to bring this complaint to the Ombudsmen on Ms B’s behalf, and
• It would be appropriate to use an alternative legal route to determine what care and treatment is in Ms B’s best interests.

Investigator’s decision on behalf of the Ombudsmen

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Investigator's decision on behalf of the Ombudsman