Decision : Upheld
Decision date : 28 Jan 2020
The Ombudsman's final decision:
Summary: the complainant says the Council failed to properly consider his son’s views on respite care resulting in his son absconding from respite care and placing himself in danger. The Council agrees it should have referred the complainant’s son to an independent advocate earlier and offers £500 in recognition of its fault. The Ombudsman finds the Council acted with fault.
- The complainant, whom I shall refer to as Mr X represents his son, Mr Y. Mr X says the Council failed to:
- Properly consider Mr Y’s wishes when deciding to place him in respite care;
- Identify early in the decision-making procedure whether Mr Y should have an independent advocate to help him express his wishes and concerns;
- Properly consult Mr X on the proposal for respite care when Mr X has information which may be helpful to those making a best interest decision;
- Prevent Mr Y absconding from respite care several times leading him to place himself in danger and arriving at Mr X’s home in need of help.
The Ombudsman’s role and powers
- We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- If satisfied with a council’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)
- Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.
How I considered this complaint
- In considering this complaint I have:
- Spoken with Mr X and reviewed the information presented with his complaint;
- Put enquiries to the Council and examined its responses including its offer of a remedy;
- Researched the relevant law, practice and policy;
- Shared with Mr X and the Council a draft decision and reflected on comments received.
What I found
- 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.
- Under the Mental Capacity Act 2005 and the guidance issued under the Act, when deciding if an action may be in the best interests of someone lacking capacity councils must consider, if it is practicable and appropriate to consult them, the views of:
- Anyone named by the person as someone to be consulted on the matter;
- Anyone engaged in caring for the person or interested in his welfare;
- Any donee of a lasting power of attorney granted by the person; and
- Any deputy appointed for the person by the court.
- The person’s past and present wishes and feelings;
- The beliefs and values that would be likely to influence the person’s decision if he or she had capacity;
- Any other factors that he or she would be likely to consider if able to do so.
- Mr Y has autism and lacks mental capacity. Mr Y dislikes and finds troubling changes to routines.
- Mr Y used to live with Mr X who provided day to day care and support. Mr X says he understands Mr Y’s concerns and how to offer him support. Mr X has researched Mr Y’s condition and devised a diet to help lessen some of the impact of his condition. However, when Mr X suffered a stroke, he became disabled. Some years later Mr Y moved to live with his mother, who became his primary carer. Nobody holds a power of attorney for Mr Y.
- Mr X still sees Mr Y and is important to Mr Y’s life. To enable breaks in the caring duties carried out by Mrs X, she proposed arranging respite care. In response the Council assessed Mr Y’s needs. As part of the resulting support plan it arranged an introduction to respite care for Mr Y offering short visits and short overnight stays. To help Mr Y cope with the transition to respite care, the Council arranged for a familiar person from his day care service to support him through his stays in respite care. The Council says some stays proved successful and Mr Y appeared happy to stay in respite care.
- However, Mr X says Mr Y did not like or settle in the respite care. Mr Y told staff and Mr X he did not want to attend. Mr X told the Council respite care had caused Mr Y distress and anxiety. As Mr Y’s father who had experience in providing support for Mr Y and who had a continuing interest in his welfare and well-being, Mr X felt the Council should consider his concerns.
- The Council says Mrs X supports respite care and believes it necessary to help Mr Y move towards care away from his family which may become necessary in later life. The Council believed respite care to be in Mr Y’s best interests.
- Mr Y absconded from respite care four times between June and December 2018. When he left the respite care in December 2018 Mr Y walked to Mr X’s home. This meant crossing several busy roads. Mr Y has no understanding of his personal safety and needs support. Therefore, Mr X believes Mr Y placed himself at severe risk in making this journey. Mr X says had the Council listened to both Mr Y and Mr X the Council could have avoided these incidents and the resulting distress caused to Mr Y.
- The Council says staff followed the right protocols to recover Mr Y as quickly as possible and acted without fault. The Council says risk assessments conducted following the absconding resulted in the Council putting in place measures to prevent further risks of Mr Y leaving without supervision or support. The measures did not prevent him leaving in December 2018 and putting himself at risk.
- Following Mr Y’s unsupervised departure from respite in December 2018 the Council issued a safeguarding alert. In February 2019 the safeguarding strategy meeting attended by Mr X decided not to return Mr Y to the respite care home.
- Mr X says he told the Council that he did not believe the proposed respite care was in Mr Y’s best interests. Mr X says he told the Council Mr Y did not want to go into respite. Mr X says the Council ignored his views. Instead Mr X believes the Council relied on the views put forward by Mrs X as Mr Y’s primary carer.
- Following the last incident in December 2018 the Council referred Mr Y to an independent advocacy service so someone could meet with Mr Y and gain his views. Mr Y told the advocate ‘no respite’. The advocate said Mr Y gave a clear signal he did not want to attend respite in future. The Council has not arranged any further respite and says it will not do so.
- In response to my enquiries the Council offered to pay Mr Y £500 in recognition of its failure to refer him to an advocate earlier. The Council recognised this prevented Mr Y from voicing his views for consideration as part of the decision-making procedure.
Analysis – was there fault leading to injustice?
- My role is to consider how the Council responded to Mr X’s complaint the Council had ignored Mr Y’s wishes so far as he could express them. If satisfied the Council acted with fault, I must consider what it should do to remedy any injustice.
- The Council rightly referred Mr Y to an independent advocate to gain Mr Y’s views as far as he could express them. However, it made the referral only after the December 2018 incident when Mr Y put himself at risk. Mr X says both he and Mr Y had told staff Mr Y did not want to attend respite. Mr Y lacked capacity. His parents who have a close interest in his welfare disagreed on the proposed respite. Therefore, I find the Council should have considered referring Mr Y to an independent advocate earlier in the procedure.
- The independent advocate discovered Mr X had rightly represented Mr Y’s views on respite. The Council arranged no further respite at the care home. But for the delay in deciding to make a referral to an independent advocate I find the Council could have spared Mr Y the distress of further respite. Thus, avoiding Mr Y placing himself in danger in December 2018.
- When deciding what may be in Mr Y’s best interests the decision makers should consult all who have an interest in his care and well-being. This enables the decision maker to consider information they have arising from their knowledge and understanding of Mr Y’s preferences and needs.
- As Mr Y’s father and former carer, Mr X clearly has an interest in Mr Y’s welfare and well-being. Mr X has researched his conditions and needs. Mr X has experience of looking after Mr Y. Mr X therefore will have information the Council should consider when deciding what may be in Mr Y’s best interests. I have not seen evidence of the Council inviting Mr X to provide information as part of best interest meetings or documentary evidence of how the professionals considered any information he presented. The Council’s own complaints procedure found no fault in its handling of the case.
- Mr X believes the Council wrongly decided he could not spend time unaccompanied with Mr Y because of Mr X’s disabilities. This Mr X believes led the Council to dismiss his knowledge and understanding of Mr Y’s needs. Mr X wants the Council to review the decision.
- I find the Council acted with fault in failing to:
- Properly record and show how it considered Mr X’s concerns about whether respite would be in Mr Y’s best interests and invite him to a meeting to decide that;
- Consider, since the parents had different views on respite, referring Mr Y to an independent advocate to gain his views before deciding what may be in Mr Y’s best interests.
- To address the injustice arising from the fault I recommend, and the Council agrees to, within four weeks of my final decision:
- Apologise to Mr X for the distress caused;
- Pay Mr X on Mr Y’s behalf £500 in recognition of the avoidable distress and risk caused;
- Confirm in writing it will include Mr X in future decisions about Mr Y’s care;
- Consider Mr X’s invitation to re-assess any risks arising from Mr X’s medical conditions preventing Mr Y spending time alone with Mr X.
- In completing my investigation, I find the Council acted with fault causing injustice.
Investigator's decision on behalf of the Ombudsman