Summary: There was no fault in the way the Council provided respite care under a Deprivation of Liberty Safeguard authorisation for Mr X.

The complaint

1. Mr A (as I shall call the complainant) complains about the way the Council kept his friend Mr X in a care home under a Deprivation of Liberty Safeguard (DoLS) authorisation for some months. He says the care home staff did not look after Mr X properly and his condition had deteriorated by the time he came home.

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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. If we are 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)

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How I considered this complaint

3. I considered all the information provided by the Council and by Mr A. Both Mr A and the Council had an opportunity to comment on a draft of this statement and tI took their comments into consideration before I reached a final decision.

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What I found

Relevant law and guidance

4. The Mental Capacity Act 2005 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 themselves.
5. The council must assess someone’s ability to make a decision, when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.

An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out:

Does the person have a general understanding of what decision they need to make and why they need to make it?

Does the person have a general understanding of the likely effects of making, or not making, this decision?

Is the person able to understand, retain, use, and weigh up the information relevant to this decision?

Can the person communicate their decision?

6. 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.
7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA),” which replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows people to choose one person (or several) to make decisions about their health and welfare and/or their finances and property, for when they become unable to do so for themselves. The 'attorney' is the person chosen to make a decision, which has to be in the person’s best interests, on their behalf.

There are two types of LPA:

Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account.

Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

8. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and 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.
9. 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 (a section 12 doctor) or other medical person, must complete the six assessments.

What happened

10. Mr X suffers from dementia. His friend Mr A has lived with him and acted as his carer for many years. Mr A has power of attorney for Mr X’s health and welfare and for his finances. They live in a flat in supported living accommodation, so they have access to a call system and there are staff on site. The Council arranged a care package for Mr X of a 30-minute morning call daily to assist with his personal hygiene.
11. In July 2019 Mr A contacted the Council to ask for more help with Mr X. He said he (Mr A) was ill and may need surgery. A social worker assessed Mr X’s needs on 29 July. He recommended an increase in the care package of three 30-minute calls a day. He noted that Mr X was doubly incontinent although he refused to wear incontinence pads. Mr A managed Mr X’s personal care during the day as well as all meal preparation and domestic tasks.
12. Mr A was admitted to hospital on 1 August and the social worker emailed the manager at the supported living accommodation to confirm Mr X would now receive four care calls a day.
13. Another of Mr X’s friends telephoned the social worker to ask about nighttime care. He said Mr X would not manage alone at night. The social worker spoke to the accommodation manager who said she did not believe Mr X had capacity to use his call bell at night, although she said staff would patrol the corridors and help if Mr X left his flat.
14. On 5 August, following discussion of the concerns by the accommodation manager and Mr X’s friend, the Council found a respite placement for Mr X. The social worker notified Mr A of Mr X’s location by text message.
15. Mr A spoke to a social worker on 15 August and told her Mr X was happy at the care home. On 3 September he telephoned the social worker and said again that Mr X was happy in his placement. He asked whether Mr X was likely to stay in the home. The social worker explained there would be a ‘best interests’ meeting to decide if Mr X should stay. Mr A asked if he could stay for at least another two weeks.
16. In October Mr A contacted the social work team and said Mr X must come home immediately: he said he had visited him the day before and Mr X was ‘filthy’ and not showered. A social worker contacted the care home staff who said Mr X had been showered two days prior to Mr A’s visit: they said they had planned to shower him after Mr A’s visit so as to allow them more time together.
17. The social worker contacted Mr A to explain. She also told Mr A there would have to be a ‘best interests’ meeting before Mr X came home. She recorded Mr A was ‘not happy’ with the news and said Mr X must come home straight away.
18. In October the Council undertook an assessment of Mr X’s capacity to make a decision about his care or accommodation. Mr X was assessed as unable to weigh up and retain information and was therefore deemed to lack capacity to make the decision himself.
19. A Best Interest Assessor (BIA) visited Mr X on 1 November. She recorded that ‘(Mr X) was unable to recall detail relating to his health history and responded to every question vaguely related to this by showing me the scars from his triple heart bypass surgery. (Mr X) could not tell me how his needs had previously been managed in his flat, or the circumstances relating to his move into 24-hour care. (Mr X) required significant prompting when discussing his current care and support arrangements at (the care home). A few moments after basic details had been provided, (Mr X) was not able to recall them in response to a related question’.
20. The BIA agreed Mr X did not have capacity to make his own decision about his care and accommodation. The section 12 doctor (a doctor with special experience in the treatment and diagnosis of mental disorders) agreed. The BIA applied for a three-month DoLS authorization for Mr X to remain in the home so his needs could be properly assessed and because Mr X appeared to be improving in his overall health whilst in the care home.
21. Mr A complained to the Council about the decision to keep Mr X in the care home. He said it was unfair for the Council to keep Mr X ‘incarcerated’.
22. The social work team leader replied to Mr X. She said the care home had properly identified that because Mr X could not make his own decisions about his care, it should request a DoLS assessment. She explained that Mr X had been inconsistent in his own views about whether he would rather stay in the care home or return to his home. She said the three-month stay would enable staff to develop a relationship with Mr X so he could be supported to express a view.
23. On 5 December a best interests meeting was held about Mr X’s placement. Mr A attended, as did the manager of the supported accommodation where they lived. It was agreed the least restrictive option was for Mr X to return to the supported accommodation with some additional care in place arranged by the Council. The Council would also explore the possibility of additional respite and day centre provision for Mr X. Mr X returned home on 16 December with a care package of four 30-minute calls a day to meet his personal care needs, nutritional needs and one day provision at a local day centre to prevent social isolation.

The complaint

24. On 23 December a social worker manager wrote to Mr A. He said he realised the last few months had been difficult, but he believed the best way to resolve Mr A’s complaint was for them to meet.
25. Mr A declined to meet and instead made a formal complaint to the Council. He also complained to a number of organisations about Mr X’s loss of liberty. He said Mr X had deteriorated significantly while in the care home and was, for example, now doubly incontinent.
26. Mr A also complained to the Ombudsman. It became clear the Council had not had chance to consider and investigate Mr A’s complaints fully so the Ombudsman referred the complaint back to the Council.
27. The Council responded to Mr A’s complaint in January 20221. It said (in response to Mr A’s complaint that the Council was wrong to keep Mr X in the care home) ‘There was evidence that the enhanced care package was not working, and (Mr X’s other friend) agreed with us that the care package was not working. We did not feel leaving (Mr X) in the extra care scheme at that point was in his best interest and we wanted to ensure his needs were met and he was appropriately safeguarded. We felt we had no option but to move him to 24/7-hour care for respite’.
28. The Council said the day when Mr A had visited and seen Mr X in an unkempt state appeared to have been an isolated incident. It said it had not seen any other concerns about quality of care at the home.
29. The Council said that dementia was a progressive illness and Mr X’s deterioration since he came home was likely to be due to the progress of the illness and not the result of the stay in the care home (where it was noted he had improved).
30. Mr A complained to the Ombudsman again. He said he wanted Mr X to go into different respite accommodation but the manager there said no-one on the staff could take responsibility for Mr X’s medication.

Analysis

31. There is no evidence the Council acted with fault when it found a respite placement for Mr X in August 2019. Mr X was unable to manage at home, even in extra care accommodation and with an enhanced care package, without Mr A there. The Council acted appropriately to meet his needs.
32. Mr X was inconsistent in his views about returning home. The Council acted properly in undertaking an assessment of his mental capacity to make that decision and then carrying out a DoLS assessment. There is no evidence of fault in the way the DoLS assessment was completed.
33. The Council held a ‘best interests’ meeting and agreed it was the least restrictive option for Mr X to return home in December 2019. The records I have seen show the Council considered all the relevant information before it reached that decision and put in place additional support for Mr X when he went home.

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Final decision

34. I have completed this investigation as there was no fault on the part of the Council in its provision of respite care, the mental capacity assessments or the DoLS consideration.

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Investigator's decision on behalf of the Ombudsman