Summary: Miss B complains on behalf of her adult son Mr D about his health and social care support. We will not investigate the complaint as we are not satisfied Mr D has fully consented to Miss B complaining to us on his behalf. We do not therefore consider Miss B suitable to bring the complaint to us.

The complaint

1. Miss B complains about a lack of appropriate health and social care support for her adult son Mr D. She says he has not had the assessments or support he needs, and there have been problems with his medication. Miss B says this has caused her son’s mental health to deteriorate and she has suffered avoidable stress and anxiety.
2. Miss B says she wants her son to get continued support and the medication he needs.
3. Mr D’s health and social care support is provided to him under section 117 of the Mental Health Act 1983.

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The Ombudsmen’s role and powers

4. 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)
5. 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))

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How I considered this complaint

6. I considered Miss B’s written complaint and supporting information, and spoke with her and Mr D on the phone. I also considered information from the Council and the Trust. I shared a draft of this decision with Miss B, and considered her comments before making a final decision.

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What I found

Legal and administrative background

Mental capacity

7. One of the key principles of the Mental Capacity Act 2005 is that every adult has a right to make their own decisions and must be assumed to have capacity to make them unless it is proved otherwise. The Mental Capacity Act Code of Practice says it is important to start from an assumption of capacity.

The core principles of the Mental Capacity Act include:

• a decision maker must assume a person has capacity to make their own decisions, unless it is established that s/he lacks capacity;
• all practicable steps must be taken to help a person make a decision, before a decision is taken they lack capacity;
• a person should not be treated as unable to make a decision merely because they make an unwise decision;

Lasting Power of Attorney

8. The Mental Capacity Act introduced the Lasting Power of Attorney (LPA). An LPA is a legal document which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. A Health and Welfare LPA gives the attorney the power to make decisions about the person’s health and personal welfare, such as day-to-day care, medical treatment, or where they should live.
9. An LPA must be registered with the Office of the Public Guardian before it can be used. It can only be used once the person loses mental mental capacity.

Analysis

10. We generally expect complaints to be made to us by the ‘person affected’, in this case Mr D. A person can also authorise someone else to complain to us on their behalf, providing their consent. The consent must be informed consent, which means it must be:
• given voluntarily (with no coercion)
• given by someone who has capacity to consent
• given by someone who has been fully informed about the issue
11. We also need to consider whether the ‘person affected’ also consents to their representative receiving personal information about them during the investigation of their complaint.
12. I understand Miss B is Mr D’s mother and is concerned about his care. However, a close family relationship does not give an automatic right to act on their behalf or receive personal confidential information about them.
13. From the information I have seen, Mr D has usually consented to Miss B representing him and complaining on his behalf. But, he recently told the Council he did not consent to Miss D complaining on his behalf or receiving personal information about his health and social care. He also signed a form confirming this. Miss B says Mr D signed the form without understanding what it meant, and under pressure from the Council.
14. We spoke with Mr D and he told us he consents to his mother representing him in the complaint. However, his mother was present during some of the phone call, and the call took place around the same time Mr D was speaking with the Council about his wishes.
15. Overall, despite the close family connection we cannot say Miss B is a suitable person to bring this complaint about Mr D’s health and social care to us, based on the differing information we have seen about whether Mr D consents.
16. Mr D has the option of using an independent advocate to bring the complaint. Alternatively, we need to speak with Mr D independently of Miss B, to properly understand his wishes.

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Decision

17. We will not investigate this complaint as Mr D has not fully consented to Miss B representing him and we do not therefore consider Miss B suitable to bring the complaint to us.

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Investigator's decision on behalf of the Ombudsman