Summary: We will not investigate this complaint about the Council’s consideration of a Deprivation of Liberty Safeguards authorisation. Any fault did not cause an injustice to Mr or Mrs X, and investigation by us would not lead to a different outcome.

The complaint

1. Mr X complained the Council did not follow the correct steps when considering a Deprivation of Liberty Safeguards (DOLS) application for his wife, Mrs X. He said part of the criteria for issuing a standard authorisation was not met, but the Council granted one anyway. He said the Council has not answered his questions relating to this, which increased his suspicion.
2. Mr X did not say what injustice he believed the Council’s actions had caused, but said this was a traumatic time for him. He wanted the Council to provide explanations and accept fault in wrongly issuing a DOLS standard authorisation.

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The Ombudsman’s role and powers

3. 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:

• any fault has not caused injustice to the person who complained, or
• further investigation would not lead to a different outcome, or
• there is no worthwhile outcome achievable by our investigation.

(Local Government Act 1974, section 24A(6), as amended, section 34(B))

4. 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)

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How I considered this complaint

5. I considered information provided by the complainant.
6. I considered the Ombudsman’s Assessment Code.

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My assessment

7. Mr X’s complaint relates to the Mental Health Assessor having ticked a box which he says meant a DOLS standard authorisation should not have been granted for his wife, Mrs X. The box related to the question of whether Mrs X should be detained under the Mental Health Act or the Mental Capacity Act.
8. The Council explained to Mr X in its complaint responses that the box had been ticked by the Mental Health Assessor in error, and said the accompanying explanation made this clear. The Council acknowledged this should have been identified and clarified by the Best Interests Assessor before the assessment was finalised, but said in any event the outcome would not have been any different.
9. Mr X provided copies of the Mental Health Assessment and Best Interests Assessment when he complained to us. While the Mental Health Assessor ticked a box that indicated Mrs X objected to medical treatment for a mental disorder, the written notes accompanying this made clear the Mental Health Assessor considered the Mental Capacity Act the most appropriate legislation under which Mrs X should be detained. The Council’s explanation is in line with the evidence Mr X provided, and we could not achieve anything different if we investigated his complaint.
10. Mr X does not appear to be complaining the arrangements that amounted to a deprivation of Mrs X’s liberty were not in Mrs X’s best interests. Mr X was appointed Relevant Person’s Representative. Had he had any concerns the authorisation was not in Mrs X’s best interests it would have been open to him to challenge the DOLS in the Court of Protection, using legal aid. It would have been reasonable for him to do so, and we would therefore not investigate a complaint about whether the DOLS was in Mrs X’s best interests.
11. Mr X has not claimed injustice was caused by any fault in the Council’s actions. The issues Mr X has highlighted did not cause a detriment to Mrs X, because in any event, a DOLS standard authorisation would still have been granted. There is insufficient evidence any fault by the Council caused an injustice, and we will therefore not investigate.

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Final decision

12. We will not investigate Mr X’s complaint because there is insufficient evidence any fault by the Council caused Mr and Mrs X an injustice, and we could not achieve a different outcome by investigating.

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Investigator's decision on behalf of the Ombudsman