Summary: Mr A and Mr B complained the Council carried out a mental capacity assessment on their mother inappropriately and unnecessarily. The Ombudsman will not consider this complaint further as there is insufficient evidence of fault by the Council.

The complaint

1. Mr A and Mr B complained on behalf of their late mother, Mrs X. Mr A and Mr B complained the Council carried out an unwarranted mental capacity assessment on Mrs X. They also say the Council continued with the assessment beyond the point it became clear Mrs X lacked capacity. They say it was an “interrogation” and caused them, and Mrs X, severe distress.

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The Ombudsman’s role and powers

2. 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’. We provide a free service, but must use public money carefully. We may decide not to start or continue with an investigation if we believe:

• it is unlikely we would find fault, or
• it is unlikely further investigation will lead to a different outcome.

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

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How I considered this complaint

3. I have considered all the information Mr A and Mr B provided. I have also considered the Council’s response to their complaint. I have written to Mr A and Mr B with my draft decision and given them an opportunity to comment.

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What I found

4. In November 2019, Mrs X was admitted to hospital from her care home. Whilst in hospital the care home ended its contract with her. This was because Mr B,
   Mrs X’s Lasting Power of Attorney (LPA) for Health and Welfare, had stopped paying for Mrs X’s care.
5. The Council assessed Mrs X’s finances while she was still staying in the hospital. This was to decide who was responsible for paying for Mrs X’s next care home placement after discharge. The assessment found Mrs X placed her house in trust when she already had significant care needs. The Council decided the house was placed in trust to avoid paying care fees by reducing her capital. Because of this, the Council decided to include the house in its calculation of
   Mrs X’s capital and her eligibility for council-funded care. The financial assessment found Mrs X should pay for her care in full.
6. The Council then completed a mental capacity assessment to decide if Mrs X could understand the house could be used as security for fees in her new care home. The assessment found Mrs X did not have capacity to understand the decision about her finances. The Council decided Mr B was responsible for finding and funding Mrs X’s next care home placement as he had LPA.

Reason for the mental capacity assessment

7. Mr A and Mr B believe the Council completed the mental capacity assessment to judge whether Mrs X had capacity when she decided to put the house in trust. The Council disputes this.
8. The Mental Capacity Act 2005 states assessment of someone’s capacity is specific to the decision to be made at a particular time. Assessments cannot be used to find out whether someone had capacity in the past.
9. I have seen no evidence to suggest the Council was assessing Mrs X’s capacity for past decisions. I am satisfied the Council assessed Mrs X’s ability to understand the current situation with her care and finances.

Conduct of the assessment

10. Mr A and Mr B are unhappy with how the assessment was conducted. They feel the officer “interrogated” their mother, and that it continued beyond the point it became clear Mrs X lacked capacity.
11. Under the Mental Capacity Act 2005, the Council has a duty to assume capacity until there is evidence to suggest otherwise. It is required to undertake a robust assessment before concluding a person does not have capacity. Capacity cannot be assumed based on a diagnosis. The format of assessments varies depending on the complexity of the decision to be made.
12. To assess Mrs X, a Council officer interviewed her and considered her responses with evidence from health professionals and Mr B. The Council’s mental capacity assessment form included four prompting questions. Mr A and Mr B say once the officer established the answers to the first two questions, the assessment should have ended.
13. The first question was whether Mrs X was experiencing a problem in how her brain was working. The officer recorded that Mrs X had a diagnosis of vascular dementia.
14. The second question was whether Mrs X had the ability to understand information about the decision to be made. To determine this, the Council officer asked Mrs X a series of questions. The assessment record says Mrs X refused to answer questions, screamed and called for help. Based on this and the other information available, the officer determined Mrs X did not have capacity and ended the interview.
15. Although Mrs X had a diagnosis of vascular dementia, this was not sufficient for the Council to determine that she lacked capacity. The Council had a duty to continue assessing Mrs X until it could reasonably determine she lacked capacity. I am satisfied the questions the Council officer asked Mrs X were appropriate to determine her capacity. There is no evidence to show the Council failed to assessed Mrs X in accordance with the Mental Capacity Act 2005 and Mental Capacity Act 2005 Code of Practice.

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Final decision

16. The Ombudsman will not investigate this complaint. This is because there is insufficient evidence of fault by the Council.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman