The Ombudsman's final decision
Summary: We will not investigate this complaint about the Council’s assessment of Miss X’s mental capacity and its decision to authorise a Deprivation of Liberty Safeguards (DoLS). The Council is reviewing the assessment and further investigation by us would not lead to a different outcome. If Miss X remains unhappy following the review, she can challenge it in the Court of Protection.
The complaint
Miss X complains about the outcome of the Council’s mental capacity assessment and its decision to authorise a Deprivation of Liberty Safeguards (DoLS). She says she has capacity to make decisions and the decision has impacted her physical and emotional wellbeing. She wants an independent assessment of her capacity.
The Ombudsman’s role and powers
We investigate complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or continue an investigation if we decide further investigation would not lead to a different outcome. (Local Government Act 1974, section 24A(6), as amended, section 34(B)) 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) The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
How I considered this complaint
I considered information provided by the complainant and the Council.
I considered the Ombudsman’s Assessment Code.
My assessment
The Council assessed Miss X’s mental capacity in February 2024. Miss X was supported during the assessment by an independent representative. The Council decided Miss X did not have capacity to make informed decisions about where she lived and about her care. It made a best interests decision to authorise the deprivation of Miss X’s liberty under a standard Deprivation of Liberty Safeguards (DoLS) authorisation.
Miss X disagreed with the decision. She has since requested a review of the DoLS authorisation. The Council agreed to this and is currently undertaking the review of Miss X’s mental capacity assessment.
We will not investigate this complaint. We do not have the power to ask the council to change its decision. We could only recommend a reassessment if we found fault in the assessment process. The Council has accepted Miss X’s request for a review and so an investigation by us would not lead to a different outcome. If Miss X remains unhappy following the review she can challenge the Council’s decision in the Court of Protection. The Court has expertise in assessing mental capacity and only the court has the power to change a capacity decision. Miss X has the support of an independent representative and so if she remains unhappy following the review, I consider it reasonable for her to go to court.
Final decision
We will not investigate Miss X’s complaint because an investigation would not lead to a different outcome, and it is reasonable for her to go to court if she remains unhappy following the Council’s review.
Investigator's decision on behalf of the Ombudsman