The Ombudsman's final decision
Summary: Mr X complains about the way the Council made a best interest decision to place his wife, Mrs X in a care home and carried out a Deprivation of Liberty safeguarding assessment. Mr X also complains about the care Mrs X received while resident at a care home causing him distress and uncertainty about her stay. We will not investigate the decision to place Mrs X in a care home as it was made by the Court of Protection. We have found no evidence of fault in the way the Council carried out the Deprivation of Liberty safeguarding assessment and considered Mr X’s concerns about Mrs X’s care. So, we have completed our investigation.
The complaint
I have called the complainant Mr X. He complains there were failings in the way the Council made a best interest decision to place his wife, Mrs X into care home and carried out Deprivation of Liberty safeguards (DoLs). Mr X says Mrs X was fit and well before going into hospital and then a care home where she sadly passed away in March 2020. Mr X says Mrs X wanted to return home when discharged from hospital but was made to go to a care home.
Mr X complains the Council failed to ensure Mrs X received good care while at the care home. Mr X says that negative remarks about him in the DoLs documents affected how Mrs X was treated, cared for and his contact with her. Mr X says this caused him distress and uncertainty over Mrs X’s stay at the care home.
What I have investigated I have investigated Mr X’s complaints about the way the Council carried out a DoLs assessment on Mrs X. I have also investigated Mr X’s complaint about the Council’s response to his concerns about Mrs X’s care at the care home. I have not investigated Mr X’s complaints about the decision to place Mrs X in a care home. I have explained my reasons for not doing so within the decision statement.
The Ombudsman’s role and powers
We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether an organisation’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended) We cannot investigate a complaint about the start of court action or what happened in court. (Local Government Act 1974, Schedule 5/5A, paragraph 1/3, as amended) If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)
How I considered this complaint
I have read the papers submitted by Mr X and spoken to him about the complaint. I considered the Council’s comments on the complaint and the supporting documents it provided.
Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Community Care Assessment Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs. The assessment must be of the adult’s needs and how they impact on their well-being and the results they want to achieve. It must also involve the individual and where suitable their carer or any other person they might want involved.
Care Plan The Care Act 2014 gives councils a legal responsibility to provide a care and support plan (or a support plan for a carer). The care and support plan should consider what the person has, what they want to achieve, what they can do by themselves or with existing support and what care and support may be available in the local area. When preparing a care and support plan the council must involve any carer the adult has. The support plan must include a personal budget, which is the money the council has worked out it will cost to arrange the necessary care and support for that person.
Mental Capacity Act The Mental Capacity Act 2005 (MCA) is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.
Best interest decision making A key principle of the Mental Capacity Act 2005 is that any act done for or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests.
If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
Court of Protection The Court of Protection deals with decision-making for adults who may lack capacity to make specific decisions for themselves.
The Court of Protection may need to become involved in difficult cases or cases where there is disagreement which cannot be resolved in any other way Deprivation of Liberty Safeguards (DoLS) The Deprivation of Liberty Safeguards (DoLS) are the result of an amendment to the Mental Capacity Act 2005 which came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home or hospital to apply for authorisation. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how they should be applied in practice.
The Supreme Court decided on 19 March 2014, in the case of P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that deprivation of liberty occurs when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
The application for authorisation should be made within 28 days.
There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the local authority.
On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.
Background to the complaint This section sets out the key events in this case and is not intended to be a detailed chronology.
The Council received safeguarding concerns about Mrs X in 2018. This was due to her medical condition, poor living conditions and behaviour of Mr X considered to be restricting her need for health and social care. There were reports Mr X did not seek medical care for Mrs X and she refused to be admitted to hospital. It was considered Mrs X lacked capacity to make an informed choice about her medical care. Health professionals worked with the Council’s social care services to assessed Mrs X under the MCA. Mrs X was detained under the MCA and admitted to hospital.
A further assessment of Mrs X in hospital showed she lacked capacity to make decisions about care and support, health needs and accommodation. The professionals involved raised concerns about Mr X’s contact with Mrs X. It was considered Mr X was not acting in Mrs X’s best interests and resistant to any intervention she needed.
Mrs X was further detained under the MCA and moved to a different hospital. Mrs X received medication, gained weight, and improved but medical staff considered a full recovery unlikely. The Council assessed her under the Care Act and considered she was eligible for assistance. The outcome was a proposed move to residential care. The Council drew up a care and support plan for Mrs X in a residential setting.
The Council started Court of Protection proceedings for Mrs X’s long-term care and support as Mr X objected to residential care. The Court appointed an independent medical health advocate to support Mrs X. In April 2019 the Court agreed to legally removed Mrs X from the care of Mr X. The Court ordered that Mrs X be placed in a dementia residential care setting. Mrs X was to receive care according to her assessed needs as set out in her care plan. Mr X was allowed to visit. Mr X was a party to the court proceedings and had his own legal representative.
Professionals involved with Mrs X raised concerns again about Mr X’s involvement and behaviour over Mrs X’s health and care needs. It was reported Mr X was being obstructive and cancelling treatment plans and appointments. There were several more court hearings about contact and care and support for Mrs X. Mr X was prohibited from taking certain actions as a result.
Mrs X was admitted to hospital in January 2020. Mrs X returned to the care home for end-of-life care. The Court of Protection continued to issue direction until Mrs X passed away in March 2020.
DoLs and best interests assessment The Council received a DoLs application for Mrs X in April 2019 from the care home. A best interests assessor from the Council visited the care home and completed a Dols assessment with Mr and Mrs X. The assessor and a general practitioner completed the necessary assessments required. The assessor looked at Mrs X’s medical conditions, brief life history, current care at the care home and Court of Protection proceedings. The assessor noted she had spoken to Mrs X who had no concerns and was happy with the care. Mr X had some concerns but had raised these during the court hearings.
The assessor noted it was the view of care home staff and medical professionals for Mrs X’s best interests to stay at the care home for the provision of care and accommodation. This allowed her to receive specialist care and treatment to meet her current needs.
The assessor granted the DoLs application on 30 April 2019 to deprive Mrs X’s liberty to prevent harm to her. The assessor‘s report gave reasons for the decision. This was because of Mrs X’s dependency on staff to meet her care needs and her vulnerability. The assessor recommended support for Mrs X with 1:1 social time to support Mr and Mrs X to access activity outside the care home.
Mr X complained the DoLs application and assessment made claims or personal remarks about him and Mrs X about their diet and his medical theories. Mr X said Mrs X was not prevented from having a wide-ranging diet at home as the DoLs team claimed.
The Council explained the assessor’s documents from the DoLs referred to a statement from the best interest assessor’s report. This said Mrs X did not have a good diet at home as Mr X believed she was allergic to a wide range of foods. The Council says the assessor was not make the judgement herself but reporting information from relevant professionals.
The Council says the best interest assessor’s role is to identify information used when making decisions about Mrs X’s care and accommodation. The assessor included the information to give context to the report. And restating it in the authorisation report did not constitute the assessor making personal remarks or claims. The Council considered it necessary and appropriate to include the information for the DoLs assessment. It says the DoLs assessment is not provided for or intended to be used for deciding treatment plans in any setting.
Mr X’s complaints about the care home Mr X complained about Mrs X’s care at the care home. He alleged the care home: Failed to respond to his comments Mrs X had food allergies, was lactose intolerance and so given inappropriate food.
Failed to ensure Mrs X had bed rails in place but used a crash mat instead contrary to the falls plan.
Used a bed that was too small for her.
Mislaid some of her possessions including a wedding photograph album.
Did not monitor the effects of medication Mrs X received causing her a side effect.
Mr X questioned why the Council sent Mrs X to the care home and considered it an acceptable place for her. Mr X said Mrs X was frightened and scared at the care home because of staff and residents entering her room.
The Council responded to Mr X’s complaints in May 2021. It said: Mr X self-diagnosed Mrs X to be lactose intolerant and allergic to certain foods. But her medical records did not support this, so she was receiving a normal diet.
Mrs X’s falls prevention plan specified bed rails but these were removed for safety reasons as Mrs X kept putting her legs over the top of them. The care home assessed Mrs X to provide a suitable, safer option. It was agreed to lower her profiling bed and put a crash mat on the floor. Care home staff removed the mat when Mrs X had visitors and then replaced it when they left.
Mrs X had a profiling bed which was deemed suitable for her needs. It was not considered too small for her but of sufficient size and type to meet her needs.
The care home returned Mrs X’s clothing and possessions to Mr X when he collected them in March 2020. Mr X did not mention a wedding album. Care home staff cleaned the room and reported no personal items left behind. When Mr X asked about the album a few weeks later the home carried out a search but could not find anything. The staff reported Mrs X was not known to have a wedding album in her possession, only photographs brought in by family members which Mr X would then take home The Council reported Mrs X received the medication for many years and there were no reports it caused her a health issue. But it was for a medical professional to investigate a possible side effect of a medication and not the care home.
The Council said it identified a care home placement for Mrs X based on assessed eligible needs. The Council identified the care home as being able to meet those needs. The Council commented Mrs X did not appeared scared while with staff and she did not report being afraid. The Council said there was some movement within the home as residents were not confined to their rooms. Staff and professionals had to come and go into Mrs X’s room to ensure they met her health needs.
In responding to my enquiries on the complaint the Council says it had no concerns about the care and support Mrs X received from the care home. Mrs X had regular visits from various professionals to monitor her care. This included her own independent advocate and legal representatives. There were no reports of concern about her care.
The Council was satisfied the care home adhered to assessments, care plans and Court of Protection directions. The care home reported any concerns appropriately and ensured Mrs X received the right health care while in the nursing unit. The care home also asked for GP advice when needed and case documentation shows evidence of good communications. The Council confirms no safeguarding concerns were raised about the care Mrs X received from the care home throughout her stay. It says the care home responded promptly to correspondence and it had no concerns about the care home documents for Mrs X.
My assessment
The decision to place Mrs X into a residential setting was taken by the Court of Protection during court proceedings. Mr X was party to the proceedings, had his own legal representation and so able to put forward his concerns. As paragraph five explains we cannot investigate what happened in court. So, because the decision was taken by a court and part of court proceedings, it is not an issue we can investigate. This includes Mr X’s concerns about the amount of contact he was allowed with Mrs X as it was set during the court proceedings.
The Council documents show it drew up a care and support plan for Mrs X to be in a residential setting. The Council identified a placement at the care home could meet Mrs X’s needs. The Council had no reported concerns about the care provided to Mrs X at the care home. This is supported by the evidence provided by the Council of Mrs X’s care and support plan and case records.
The Council responded to Mr X’s complaints about the care at the care home and did not uphold his concerns. The documents show the Council’s investigation was thorough. So, I do not consider I can add anything through further investigation or achieve a different outcome on this issue.
The Council’s evidence shows it carried out the assessments required for a DoLs application. The DoLs assessor considered all the information. The assessor reached a decision it was in Mrs X’s best interests to be deprived of her liberty and remain at the care home. This was to ensure she received the care and treatment she needed. This is a decision the Council was entitled to make. There is no evidence of fault in the way the decision was made. This is because the assessor followed the requirements of the Mental Capacity Act 2005. And took account of information from medical professionals, care home staff and Mr and Mrs X. The assessor also gave reasons for the decision.
Mr X is unhappy with some of the information included. But it was for the assessor to draw together relevant information when making the decision. There is no evidence the assessor made personal remarks or claims about Mr X herself, but included information gathered from other sources. As the Council has explained the DoLs does not dictate any treatments plans for a person while they are being kept in a certain setting. So, it would not affect how Mrs X was treated and medically cared for.
Final decision
I am completing my investigation. I have found no evidence of fault in the way the Council carried out a DoLs assessment for Mrs X. There is also no evidence of fault in the way the Council dealt with Mr X’s concerns about the care Mrs X received at a care home.
Investigator's decision on behalf of the Ombudsman