• The complaint
• The Ombudsman’s role and powers
• How I considered this complaint
• My assessment
• Final decision

The Ombudsman's final decision:

Summary: We will not investigate this complaint about the care provided to Mr X when he was resident in a care home that was acting on behalf of the Council. This is because an investigation would be unlikely to achieve anything further to what has been achieved through the local resolution process.

The complaint

1. The complainant, who I will call Mrs X, is complaining about the care and support provided to her husband, Mr X, by a care home acting on behalf of Cambridgeshire County Council (the Council).
2. Mrs X complains that:

• Mr X was assessed as having capacity to decide to leave the care home when previously a social worker had found he lacked capacity; and
• the care home allowed Mr X to leave the premises without ensuring he had adequate care in place.

3. Mrs X says Mr X’s return without care and support placed her under great pressure and caused significant distress for her and her family.

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The Ombudsman’s role and powers

4. 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 we could not add to any previous investigation by the organisation that is the subject of the complaint.

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How I considered this complaint

5. In reaching this draft view, I considered information provided by the organisations Mrs X is complaining about. I invited Mrs X’s comments on this draft decision statement and considered her response.

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My assessment

Mental Capacity Act 2005

6. The Mental Capacity Act 2005 (the MCA) applies to people who may lack mental capacity to make certain decisions. Section 42 of the MCA provides for a Code of Practice (the Code) which sets out steps organisations should take when considering whether someone lacks mental capacity.
7. Both the MCA and the Code start by presuming individuals have capacity unless there is proof to the contrary. The Code says all practicable steps should be taken to support individuals to make their own decisions before concluding someone lacks capacity. The Code says people who make unwise decisions should not automatically be treated as not being able to make decisions. Someone can have capacity and still make unwise decisions.
8. The Code says, at paragraph 2.11, there may be cause for concern if somebody repeatedly makes unwise decisions exposing them to significant risk of harm or exploitation. The Code says this may not necessarily mean the person lacks capacity but further investigation may be required.

Background

9. Mr X has a diagnosis of frontotemporal dementia. This affects his behaviour.
10. In January 2021, Mr X was undergoing a period of inpatient hospital treatment. A clinician completed a capacity assessment that found Mr X had capacity to make decisions about his care.
11. In March, Mr X was discharged to the care home. The hospital team caring for Mr X considered him to have capacity to agree to the care home placement.
12. Later that month, the care home contacted a social worker as Mr X had asked to leave the care home. The social worker spoke to Mr and Mrs X and the care home. Mr X agreed to remain in the care home while arrangements were made for his care. The social worker was satisfied there were no concerns around Mr X’s capacity to make this decision.
13. At a meeting on 26 March. Mr X again agreed to remain in the care home for the time being. Again, the social worker had no concerns about Mr X’s capacity.
14. In early May, Mr X again asked to leave the care home. Following further discussion with the social worker, Mr X agreed to remain in the care home while a further review was arranged.
15. On 14 May, Mr X was advised at a review meeting that he was entitled to leave the care home if he wished. Mr X left the care home on 18 May to return home.

My analysis and findings

Mental capacity

16. Section 1 of the MCA sets out five statutory principles. These are the values that underpin the legal requirements of the MCA. Thie first principle sets out that “[a] person must be assumed to have capacity unless it is established they lack capacity.”
17. The evidence I have seen suggests the professionals working with Mr X when he was resident in the care home, including a social worker, were satisfied that Mr X had capacity to decide to remain in the care home voluntarily. There is no evidence to suggest that Mr X was deprived of his liberty in the care home.
18. Capacity can fluctuate and is decision specific. This may mean that a person is considered to have capacity to make one decision but not another. It may also mean that a person’s capacity to make a specific decision changes over time.
19. It is not the Ombudsman’s role to substitute his judgement for that of the professional making a decision. This is a matter of professional judgement for that officer. In Mr X’s case, the social worker was satisfied that Mr X had capacity to make the decision to remain and so concluded a formal capacity assessment was not required.
20. In my view, an investigation of this issue by the Ombudsman would be unlikely to add anything further to the complaint responses Mrs X has already received. We will not investigate this issue, therefore.

Decision to leave

21. The issue of Mr X’s capacity is also relevant here. Mr X was considered to have capacity to decide whether he wanted to remain in the care home. This meant he was free to leave when he wished, even if this was an unwise choice.
22. The social worker explained to Mr X on 14 May that he was entitled to leave if he wished, and he subsequently chose to do so.
23. I recognise Mrs X queries whether Mr X’s dementia meant he lacked capacity to make important decisions of this nature. However, an investigation by the Ombudsman would be unable to establish whether Mr X had capacity to make a specific decision on any given day. For this reason, I consider it unlikely an investigation would achieve anything further. Again, we will not investigate this part of the complaint.

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Final decision

24. We will not investigate those aspects of Mrs X complaint that relate to the care provided to Mr X in the care home.

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Investigator's decision on behalf of the Ombudsman

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