The Ombudsman's final decision
Summary: We ended the investigation of Mrs X’s complaints about a council-run care home because they are late. And complaints about a GP and about access to records are not for the Local Government and Social Care Ombudsman. Mrs X needs to raise these matters with the Information Commissioner and the Parliamentary and Health Service Ombudsman.
The complaint
Mrs X complained the Council and one of its care homes: Refused to supply her late mother’s (Mrs Y’s) records Said it had no duty of care Advised her to complain to Mrs Y’s GP Did not advise she could complain to the Local Government and Social Care Ombudsman Refused to speak to them about their concerns about Mrs Y’s GP’s care.
Mrs X said this caused avoidable distress.
The Ombudsman’s role and powers
We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended) We normally expect someone to refer the matter to the Information Commissioner if they have a complaint about data protection. However, we may decide to investigate if we think there are good reasons. (Local Government Act 1974, section 24A(6), as amended)
How I considered this complaint
I considered the complaint to us and the Council’s response to the complaint and emails summarised later in this statement. I discussed the complaint with Mrs X.
Mrs X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
Background
Mrs Y lived in a council-run care home from 2018. She died in 2021. The family consider Mrs Y was diagnosed with health conditions she did not have and misdiagnosed and mis-treated by a GP during lockdown.
Complaint correspondence 2021- 2022 In December 2021, there was an exchange of emails between an officer in the Council’s complaints team and a family member acting for Mrs X (Mr Z). The complaints officer asked Mr Z to clarify the complaint. In January Mr Z emailed the complaints team saying: The doctor they were taking action against via the NHS was conducting her duties within the Council’s facility (the care home).
The staff, external experts and Mrs X all flagged causes for concern, issues and complaints against the care being delivered under the direction of the doctor.
The complaints are on the care home’s records from staff members as well as the family having records of input from external doctors and medical experts.
The issues and complaints were not recognised and appropriate review and actions to investigate were not taken.
This was a failing in the formal complaints and assurance/governance of the care home.
The complaints officer said the family needed to complain to the care home in the first instance, before the complaints team would become involved. Mr Z said they had tried to complain to the care home first, and he was therefore escalating the complaint to the Council. The complaints team asked for the complaint correspondence.
Mrs X emailed the Council in March 2022 repeating the complaint and asking the Council to respond and to provide the records requested. In April, the Council replied asking her to request the records directly from the care home and asking when she had raised concerns about the GP with adult social care.
Mrs X said in her complaint to the Council that she wanted all records relating to Mrs Y’s care in the care home, for the care home and council to respond to her complaint and for records of the GP’s actions to be released to her.
In June 2022 the Council responded to the complaint saying it had checked Mrs Y’s records and there was evidence staff raised concerns with the medical professional concerned. It directed her to its procedures for releasing Mrs Y’s records.
Complaint correspondence 2024 There is no evidence of any further contact from the family to the Council until January 2024 when Mr Z emailed a manager and said there had been no formal response to the complaint and that the family had been seeking legal advice. The Council’s manager said there had been a response in June 2022, attached a copy and advised records needed to be requested through the information team. Mr Z said there had not been a substantive response from the care home.
There was a further exchange of emails between the manager and Mr Z and at the end of January. The manager advised the family needed to complain to the LGSCO as the complaint was now more than 12 months old.
Mrs X told us she had received a response from the GP’s practice to her complaint about the GP (which it did not uphold) and had also complained to the General Medical Council about her (also not upheld). She said she had not complained to the Parliamentary and Health Service Ombudsman.
Final decision
I ended my investigation of Mrs X’s complaints. My reasons are: The Information Commissioner’s office (ICO) deals with complaints about data protection. Mrs X needs to complain to the ICO about any failure to obtain records from the care home. There is no reason she cannot raise the matter with the ICO.
Complaints about a doctor’s care are for the NHS and not for the LGSCO and we have no power to investigate them. We can only investigate the Council’s actions. Mrs X needs to complain to the Parliamentary and Health Service Ombudsman about the doctor.
The complaints are late. Mrs X was aware of them by December 2021 as she raised them in her complaint to the Council. The Council responded in 2022. Mrs X then did not pursue matters with the Council until January 2024 and she did not complain to us until February 2024. The reason for the delay is the family were seeking legal advice. We would not expect legal advice to take eighteen months. And Mrs X could still have complained to us in 2022 while seeking legal advice. There is no good reason for the delay.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman