Gloucestershire Health and Care NHS Foundation Trust (23 020 881a)

Category : Health > Community hospital services

Decision : Closed after initial enquiries

Decision date : 28 Jul 2024

The Ombudsman's final decision:

Summary: We will not investigate a complaint about how a Trust and a Council dealt with a complaint about the care provided to the complainant’s brother. This is because he did not provide consent to share his information and this was appropriately considered by the organisations during the local complaints process.

The complaint

  1. Mrs X complains about the care provider for her brother, Mr Y. She says it has failed to investigate her concerns about his care. She also says the service does not answer or engage in complaints made to them on behalf of a service user.
  2. Mrs X considers the care provider manipulated the situation so Mr Y cannot raise concerns about his care. Because of the care provider’s actions, Mrs X says she has no contact with Mr Y and cannot advocate for him.

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The Ombudsmen’s role and powers

  1. The Local Government and Social Care Ombudsman and Health Service Ombudsman have the power to jointly consider complaints about health and social care. (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
  2. 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 it is unlikely we could add to any previous investigation by the bodies.

(Health Service Commissioners Act 1993, section 3(2) and Local Government Act 1974, section 24A(6), as amended)

  1. We may investigate complaints made on behalf of someone else if they have given their consent. We may also investigate a complaint on behalf of someone who cannot authorise someone to act for them, if we consider them to be a suitable representative. (Health Service Commissioners Act 1993, section 9(3) and Local Government Act 1974, sections 26A(1) and 26A(2), as amended)

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How I considered this complaint

  1. Section 75 of the NHS Act 2006 allows NHS organisations and councils to arrange to delegate their functions to one another. These arrangements are known as Section 75 Agreements and under them, NHS organisations can take on the provision of social work services which are normally the responsibility of councils. The NHS and councils remain liable for the exercise of their own functions.  
  2. In this case Mr Y’s care was provided by a care provider. Gloucestershire Health and Care NHS Foundation Trust (the Trust) arranged this on behalf of Gloucestershire County Council (the Council) under a section 75 agreement. We therefore consider the Trust and the Council to be the responsible organisations in this complaint.
  3. I have considered information provided by Mrs X, the Council and the Trust. I have also considered the Ombudsmen’s Assessment Code.

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Brief background

  1. Mrs X complained to Mr Y’s care provider in November 2023 about his care and with how staff had spoken to her.
  2. The care provider responded in January 2024. It explained that Mr Y did not consent to information about his health or finances to be shared. It considered Mr Y had the ability to make these decisions.
  3. Mrs X later complained to the Trust and it responded in April 2024. It also said Mr Y did not wish to share information about his care. It said he told staff he was happy to remain at his care placement. The Trust also noted a difference of views between Mrs X and the care staff about the incidents complained about. It apologised that Mrs X did not feel listened to.

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My assessment

  1. The care provider and the Trust responded to Mrs X’s complaint. Neither could share information about Mr Y’s care due a lack of consent. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. The MCA states individuals should be presumed to have capacity unless there is proof to the contrary.
  2. In this case I have seen the Council completed an assessment of Mr Y’s capacity and found he could understand and make decisions about his care. Mr Y expressed that he did not want his personal information shared. I consider we are therefore unlikely to find fault with the organisations not sharing information about Mr Y’s care.
  3. The relationship between Mrs X and the care provider appears to have broken down. However, I have not seen evidence the care provider has manipulated the situation to exclude Mrs X from involvement in Mr Y’s care or prevent her from complaining.
  4. Organisations have a duty to respond to complaints under their complaint procedure. However, what organisations share in responses is dependant on having the relevant consent. As noted above, Mr Y has been clear about not wanting information about his care shared. I have also noted the Trust’s complaint response explained Mr Y’s care coordinator offered to meet with Mrs X and the care provider to try to resolve any differences. However, Mr Y and Mrs X both declined this.
  5. I therefore consider it unlikely we would find fault with how the organisations have handled the complaints or with what information they shared with Mrs X.
  6. In Mrs X’s complaint to us, she also raised concerns that the complaint responses by the Trust was not independent. We would not usually expect the local complaints procedure to be independent. We would be unlikely to find fault with an organisation for involving the people responsible for care provision in its complaint investigations.
  7. The Trust’s response explained it would ask the care provider to revisit with Mr Y the sharing of his care planning information with Mrs X, to allow her to be more involved in his care. However it noted this would be subject to Mr Y’s consent. I consider it unlikely we would achieve more by investigating.

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Final decision

  1. We will not investigate this complaint. This is because it is unlikely we would find fault by the organisations in the way they have responded to Mrs X’s complaints or with the information it has been able to share.

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Investigator's decision on behalf of the Ombudsman

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