The Ombudsman's final decision
Summary: We will not investigate Mr A’s complaint about the handling of his mother, Mrs B’s, discharge from hospital. This is because we are not satisfied Mrs B has fully consented to Mr A complaining to us on her behalf. We therefore do not consider Mr A suitable to bring this complaint to us.
The complaint
Mrs B’s son, Mr A, complains about Hampshire County Council (the Council) and Southern Health NHS Foundation Trust’s (the Trust) handling of his elderly mother’s discharge from hospital, where she currently remains since being admitted in November 2021. Specifically, Mr A complains that: poor handling by the Council and Trust has significantly delayed Mrs B’s discharge he has not been properly consulted as part of the process and his views have been ignored an unnecessarily heavy-handed approach was taken to gain access to Mrs B’s property, involving the police.
Mr A says the situation has caused his mother to remain in hospital for months longer than necessary and has also caused him high levels of stress.
Mr A would like the issues surrounding Mrs B’s discharge to be resolved, financial remedy and staff training.
The Ombudsmen’s role and powers 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) 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))
How I considered this complaint
I considered the written documents submitted to us by Mr A and the information provided by the Trust and the Council. I also shared a draft decision with Mr A and considered his comments on it.
What I found
Complaints to the Ombudsmen can be made ‘on behalf of’ someone by a wide range of people or organisations, but only with that person’s consent. We generally expect complaints to be made to us by the ‘person affected’, in this case Mrs B. A person can authorise someone else to complain to us on their behalf, providing they give informed consent. This means their consent 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.
We also need to consider whether the ‘person affected’ consents to their representative receiving personal information about them during the investigation of their complaint.
Mr A is Mrs B’s son. However, a close family relationship does not give an automatic right to access a person’s confidential information, or to act on their behalf.
In February 2022 Mr A emailed the Ombudsmen a joint working consent form which included a section for Mrs B to sign. This section was not completed. We also have not received anything indicate that Mrs B is aware this complaint has been raised on her behalf.
Mr A told us that Mrs B lacks the mental capacity to give her consent. He provided a mental capacity assessment completed in early November 2021 to support this.
I have carefully considered the evidence provided by Mr A. As part of my enquiries, I have also obtained further information from the Trust and the Council about Mrs B’s capacity. I am satisfied by the evidence I have seen that Mrs B has the mental capacity to make decisions about whether she wants a complaint made on her behalf and who she wishes to represent her.
We have not received any consent from Mrs B for Mr A to represent her in bringing this complaint to us on her behalf. For this reason, we do not consider Mr A to be suitable to represent Mrs B for the purposes of this complaint
Final Decision
We will not investigate this complaint as we do not have Mrs B’s consent for Mr A to represent her in relation to the matters he has raised. We do not therefore consider Mr A is suitable to bring the complaint to us.
Investigator's decision on behalf of the Ombudsman