Decision Date: 11th November 2019
Mr A complained on behalf of his mother, Mrs B.
Mr A said his mother’s care provider had banned him from visiting her on two separate occasions, did not have a robust enough policy for dealing with Urinary Tract Infections (UTI) and was unhappy that the Council was refusing to discuss matters with him or investigate why his Power of Attorney (PoA) over health and welfare was revoked by his mother.
The Ombudsman did not consider Mr A a suitable representative to complain on behalf of Mrs B because Mr A’s brother held a current Power of Attorney for Mrs B’s health and welfare. Therefore he should be the person to complain if there were concerns around Mrs B’s care.
Mr A said his brother had coerced Mrs B to remove him (Mr A) as PoA, and that the Council should investigate.
Mrs B was deemed still to have capacity to make that decision for herself (which Mr A also disputed).
What was found
The LGO did not investigate Mr A’s complaint.
As Mrs B was deemed to have capacity, the LGO needed her consent confirming that she wanted Mr A to act on her behalf and without that, the LGO could not investigate Mr A’s complaint.
The LGO recommended that if Mr A disputed Mrs B’s capacity to make decisions about her care needs, her health or who should be her Power of Attorney, he could ask the Court of Protection to consider his views.
The LGO also said that if Mr A was concerned his brother was not acting in the best interests of Mrs B, he could ask the Office of the Public Guardian (OPG) to consider his views.
Finally, it was explained to Mr A that it was already investigating concerns raised by him (for example his contact at the care home had been restricted) under its responsibility for safeguarding vulnerable adults. Until the safeguarding investigation was completed the LGO could not make a finding on whether there was any fault with the decision to restrict Mr A visiting Mrs B at her home.
Points for the public, safeguarding social workers or other officers, service users and families
If a person has power to revoke a finance power of attorney, it would tend to mean that any concurrent welfare power of attorney has not yet come into operation. Welfare powers of attorney only operate in so far as a person has LOST the capacity that they needed in the first place, validly to GRANT the power. So it is a puzzle to us how the LGO could have thought that the welfare power holding relative’s existence was a sufficient answer to the question whether Mr A should be regarded as a suitable relative.
Secondly, if a person is banned by a care home from visiting a person accommodated in that care home, it raises all sorts of legal questions. People who are publicly funded in care homes are owed human rights by the provider. Human rights include a right to respect for private and family life. So if a resident owed these duties does not want to see her son, then it’s fine to pass that message on, as long as the manager is open to the possibility that a person might change their mind. If a resident lacks capacity and there is a concern about what a family member might do to them, then it may be proportionate for the care home to refuse entrance to that person, but not unless or until the matter has been referred to safeguarding, we think, and decided upon, promptly. That and the need for speed, especially if someone is elderly, is because the purported banning also impinges on the human rights of the person seeking to come IN.
We think that CQC has a policy on this sort of thing but the LGO report doesn’t mention it.
If Mr A had made a separate complaint about safeguarding, regarding the treatment he was on the receiving end of, the LGO would not be able to refuse to consider that complaint. It makes sense to us that the LGO would wait for the outcome of that safeguarding process before making a decision about whether it had been flawed by fault. In our experience a person believed to be of any kind of risk to another is rarely given due process, or the chance to address the concerns; some of course, are, and refuse to engage, which is their choice. But the role of the council is to focus on risk to vulnerable adults, and it is not wrong of a council to refuse to intervene in a care home’s use of its decision making power over property that it controls, if it is satisfied that as a commissioned service, and as a body owing human rights, it and the care home have got an evidence basis to go on. If Mr A considered that to be disproportionate it could be challenged via the Court of Protection, either on an application to have his mother declared capacitated and being overridden as to her choice to see him, or to have his relative removed, if that was where the edict came from.
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The full Local Government Ombudsman report of Wiltshire Council’s actions can be found here