Summary: There was no fault in the way a council dealt with a dispute between family members about where Mrs Y should live. The council acted in line with the Mental Capacity Act by taking each member of the family’s views into account as well as Mrs Y’s.

The complaint

1. Mr X complained about Lincolnshire County Council (the Council). He complained about:
1. A failure to involve him in his mother’s care including a failure to appoint him as her relevant person’s representative (RPR) and/or advocate
2. A failure to have regard to his mother’s wish to move close to him
3. Inadequate complaint handling.
2. He said this caused him avoidable distress and time and trouble.

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The Ombudsman’s role and powers

3. 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

4. I considered correspondence between Mr X’s MP and the Council, his complaint to us and documents set out in the next section of this statement
5. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.

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What I found

Relevant law and guidance

6. A council must carry out an assessment for any adult with an appearance of need for care and support, applying national criteria to decide if a person is eligible for care. (Care Act 2014, section 9)
7. Where a council considers a person would have difficulty in understanding, retaining information or communicating their wishes during the Care Act assessment and planning process, it must arrange an independent advocate to represent and support the person if there is no one else who is appropriate to support them. (Care Act 2014, section 67)
8. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• to understand and retain relevant information; or
• weight that information as part of the decision-making process; or
• communicate the decision (whether by talking using sign language or other means) (Mental Capacity Act, 2005 section 3)
9. The Code of Practice to the Mental Capacity Act (the Code) is statutory guidance which councils must have regard to. It sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice paragraph 4.34)
10. Decisions taken for a person lacking mental capacity must be in their best interests. The Mental Capacity Act and the Code provide a checklist for decision-makers to work through when deciding what is in a person’s best interests:
• Take into account all relevant circumstances.
• If faced with a particularly difficult or contentious decision, practitioners should adopt a ‘balance sheet’ approach.
• Involve the individual as fully as possible.
• Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision.
• Consult as far and as widely as possible.
• Record the best interests’ decision. Not only is this good professional practice, but decision-makers will need an objective record should the decision or decision-making processes later be challenged.
11. A decision-maker should consider the least restrictive option. This means before a person acts or makes a decision for someone who lacks capacity, they should consider if the purpose can be achieved in a way that is less restrictive of the person’s rights and freedoms. (Mental Capacity Act 2005, section 1)
12. An Independent Mental Capacity Advocate (IMCA) is an advocate who supports people who lack capacity. IMCAs are usually involved where the person lacking capacity has no other person involved in their life and where a decision about serious medical treatment or a change of accommodation may be needed. But a council may involve an IMCA even if there is a close family member, if it considers the family member is not appropriate to consult. The IMCA considers relevant information, meets the person and writes a report to help
    decision-makers decide what is in the person’s best interests. IMCAs are appointed by a council. (Mental Capacity Act 2005 sections 35 and 36)
13. Chapter 8 of the Code says an application to the Court of Protection may be necessary for disagreements that cannot be resolved any other way. If professionals are concerned about a decision affecting the welfare of a person who lacks capacity, the relevant local authority should make the application. Examples of cases where a court decision might be appropriate include where there is a major disagreement about where a person who lacks capacity should live.
14. Chapter 15.3 of the Code provides information on best practice for settling disputes short of an application to court, which should be a last resort. It says it is best to try and resolve disagreements by taking time to listen and address concerns, including by setting out the options and using an advocate.
15. The Deprivation of Liberty Safeguards (DOLS) framework protects people who lack capacity to consent to being deprived of their liberty in a care home or hospital and who are not detained under the Mental Health Act 1983. People are instead detained under a standard or urgent authorisation.
16. Schedule A1 to the Mental Capacity Act 2005 establishes the DOLS. It says the following:
1. Where it appears a person in a hospital or care home is being deprived of their liberty and lacks capacity, the hospital or care home must request a standard authorisation. (paragraph 24)
2. To obtain a standard authorisation, the care home or hospital (‘the managing authority’) makes a request to a team in the council (‘the supervisory body’). The supervisory body then carries out six assessments to decide whether to approve the authorisation: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’. (paragraph 33)
3. A supervisory body can grant or refuse an authorisation and it can make conditions including changes to a care plan to ensure there are fewer restrictions. It also sets a time limit for the authorisation. (paragraphs 50 to 53)
4. Once a supervisory body has approved a standard authorisation, it must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The RPR’s role is to represent and support the person in relation to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using the complaints procedure or making an application to the Court of Protection. RPRs must have regular contact with the person. (paragraphs 139-140)
17. If there is no-one (other than a professional carer) appropriate to be an RPR, the supervisory body should instruct an IMCA to represent the person (Mental Capacity Act 2005, section 39C). An IMCA under this section is known as a ‘paid RPR’.

What happened

Background

18. Mrs Y is in her nineties, is frail, hard of hearing and has dementia. Before the events leading to this complaint, she lived in a town in a different area next door to Mr X who was her main carer for 11 years. Mrs Y went to live with one of her daughters Ms Z who lives in Lincolnshire at the end of 2019 following a hospital admission. Mr X and Ms Z do not get on and do not agree about where their mother should live. Their views are noted in Mrs Y’s case records.
19. A social worker from the Council’s adult social care team started assessing Mrs Y for social care and support in November 2019 while Mrs Y was living with Ms Z. Mrs Y said she wanted to return to her own home and did not want to go into a care home. The records noted there had been a breakdown in communication between Mr X and Ms Z. The social care assessment did not proceed because of a lack of contact from Mrs Y or Ms Z. Mrs Y continued to stay with Ms Z.

Key events

20. In May 2020, Ms Z approached the Council for assistance as she could no longer cope with caring for Mrs Y. The Council arranged an emergency placement at a care home. A social worker completed a social care assessment in August while Mrs Y remained in the care home temporarily. The assessment said:
• Mrs Y was sometimes confused and would disengage during conversation
• She was thought to have mental capacity to make decisions about her care but may need an advocate to establish her views and wishes. She had dementia. Nobody in the family held a power of attorney
• The social worker referred Mrs Y for an advocate
• Mrs Y would not express her views and wishes but she did say she did not want to return to her daughter’s
• Mr X wanted Mrs Y to return to her home close to him.

The outcome of the social care assessment was Mrs Y was eligible for social care and support. Mrs Y remained at the care home as a temporary resident with council funding.

21. The DOLS assessments referred to in paragraph 16(b) were completed for Mrs Y in June 2020 and the Council issued a standard authorisation depriving Mrs Y of her liberty. The care home was not allowing visits because of the pandemic, so the assessor used existing documents and information from family and care staff. A doctor had assessed Mrs Y to lack mental capacity to consent to the care arrangements due to a cognitive impairment. It was noted that:
• Mrs Y’s care was in a locked unit and she required continuous care in all areas
• The assessor spoke to Mr X who did not agree with the placement, said he could not complete Mrs Y’s personal care and had not seen Mrs Y since December 2019
• Ms Z said she agreed with the placement
• Because of disagreements between family members, an independent RPR would be appointed
• Mrs Y was deprived of her liberty and this was in her best interests. Without management of her care, she would be at risk of harm, the placement was a proportionate response and her needs could not be met in a less restrictive way.
22. The DOLS assessment weighed up the advantages and disadvantages of Mrs Y staying in the care home or returning home with a care package. The outcome was that remaining in the care home was the preferred option on the grounds of risk and safety.
23. The Council appointed a paid RPR who visited Mrs Y in July. The RPR’s report noted:
• One member of staff said Mrs Y told them she did not want to be there
• Mr X said she was unhappy and wanted to leave
• Staff felt Mr X asked Mrs Y leading questions
• Another member of staff said Mrs Y was usually content and had not expressed a desire to leave
• Mrs Y told the RPR she was relieved to hear she was staying at the care home and she was suspicious the RPR might have been coming to take her away.
24. The RPR completed a telephone contact in August. She wrote a report summarising the information she received from staff at the care home who thought Mrs Y may have mental capacity to decide on her care arrangements. The RPR asked for a review of the standard authorisations. The Council completed a review which noted Mrs Y objected occasionally to being in the care home and the family had different views regarding her long-term care. The standard authorisation was extended pending resolution of the family dispute.
25. A social worker visited Mrs Y in the care home in August. On that occasion, Mrs Y said she wanted to go home or live nearer home. When asked more about what this meant, Mrs Y turned away from the social worker and did not speak further.
26. The RPR completed another report of contact in October. This noted Mrs Y’s advocate had also visited Mrs Y several times and reported she was happy to stay in the care home.
27. Mr X told us he complained to the Council’s chief executive in October 2020. Mr X told us he posted the letter by registered post/special delivery and gave the reference number, saying the Royal Mail’s website showed the letter was delivered However, the Council said the customer relations team received no complaint from him, only correspondence through his MP. A senior officer from the Council responded to the MP in December saying the social care team was working with Mrs Y in line with the Care Act and Mental Capacity Act and staff had spoken to Mr X. The response suggested the Council had not received a letter of complaint directly from Mr X as it said the customer relations team would get in touch with Mr X upon receipt of his complaint letter. The senior officer wrote directly to Mr X in December as well saying officers would engage with his mother in line with her wishes. The letter went on to say that the Council had replied to his earlier complaint via his MP and it would not repeat the process. The Council told me its correspondence was limited because Mrs Y was thought to have mental capacity around her care at the time, she was not engaging with council officers regarding her wishes and so the Council was limited in what it could tell Mr X.
28. Mr X complained to the Council in January 2021 about not receiving copies of all the DOLS paperwork. The Council responded saying he had received the paperwork he was entitled to have.
29. Mrs Y’s advocate completed a report of her involvement with Mrs Y in January. The advocate noted she had visited Mrs Y on several occasions. The report summarised Mrs Y’s views about her care. She said she wanted to stay in the care home and did not want to move to a care home close to Mr X. She also said on a different occasion that she was torn between what her children wanted but said she was settled at the care home and if she moved she would not know anyone. The advocate spoke to Mr X who was reported to be dismayed and said his mother always told him she wanted to be closer to him.
30. The DOLS team reviewed Mrs Y’s standard authorisation in November and extended it. The DOLS assessor spoke to Mr X, he continued to be unhappy in what he saw as his exclusion in decisions about Mrs Y’s care; suggesting his mother was scared to tell professionals she was unhappy in the care home and wanted her to move to a care home nearer him and said he wanted to be the RPR. The standard authorisation was reviewed and extended again in February 2021.
31. In March (and also in July), a social worker assessed Mrs Y’s mental capacity to make decisions about her long-term care setting. There was no power of attorney. There continued to be disagreements between the siblings about where Mrs Y should live. The social worker visited Mrs Y at the care home. She changed the subject when asked about where she wanted to live. Mrs Y could not retain the social worker’s name after ten minutes, nor what she had eaten at lunch. She insisted the care home was her home and she had always lived in Lincolnshire. The outcome of the mental capacity assessment was Mrs Y lacked capacity to decide on her care setting as she could not understand, retain or weight up the information.
32. Mrs Y’s advocate completed a further report in March after visiting Mrs Y at the care home. Mrs Y told the advocate she wanted to stay at the care home and that Mr X should travel to her to see her.
33. The Council organised a Best Interests meeting which took place in April. Attendees included Mrs Y’s advocate, Mr X and Ms Z, staff from the Council and from the care home. The purpose of the meeting was to decide on Mrs Y’s long term care arrangements. The minutes recorded each family member’s view and observations and a summary of professionals’ views on three options (returning home with home care, staying in the care home, moving to a care home near Mr X). The decision-maker did not record a best interest decision at the end of the meeting. The minutes said there was to be a further meeting.
34. The standard authorisation was reviewed and extended in July and the records noted the best interests decision from the meeting in April was still outstanding.
35. A further Best Interests meeting took place at the end of August. The minutes noted everyone’s views including the views and observations of family members. The decision-maker recorded their decision that it was in Mrs Y’s best interests to remain in the care home because it could meet her needs; the familiarity of the home was significant given her dementia and a move may cause harm given the history of anxiety. It was acknowledged Mr X had done a lot of care over the years, the decision was not about anyone being better, but Mrs Y’s needs had changed. Mrs Y said to the advocate, who was independent, that she did not want to move.
36. Responding to enquiries, the Council told me it would write to Mr X setting out his options and that he could apply to the Court of Protection if he continued to be unhappy with Mrs Y’s care arrangements. But the Council would only apply to court if the matter could not be resolved outside court.

Findings

Complaint a: A failure to involve Mr X in his mother’s care including a failure to appoint him as her relevant person’s representative (RPR) and/or advocate

37. There is no fault by the Council. There was extensive consultation with Mr X. His views are recorded in case records including the social work records, reports from the advocate and RPR and in the minutes of meetings. The fact that Mr X does not agree with the decision does not mean there was fault by the Council. I am satisfied it took his views into account.
38. There is no fault in the decision to appoint an independent RPR or Care Act advocate. My view is the Council acted in line with section 39C of the Mental Capacity Act and section 67 of the Care Act because it considered family members were not appropriate to be the RPR/advocate because of the dispute.

Complaint b: A failure to have regard to his mother’s wish to move close to him

39. The records indicate Mrs Y’s views changed over time and according to who she spoke to. At times, Mrs Y may have found it difficult to tell family members what she wanted to happen because of the conflict. Mr X reported his mother consistently said she wanted to live nearer to him. The records indicate Mrs Y may have said this to staff on one occasion, but at other times she told professionals including independent advocates that she wanted to remain in the care home.
40. There is no fault in the way the Council handled the conflict. I am satisfied the Council acted in line with the principles of the Mental Capacity Act as described in paragraphs 8 to 12. Officers carried out mental capacity assessments, determined Mrs Y lacked capacity to make decisions about her long-term care and sought her wishes and her the views of her family. It held two best interests meetings.
41. Mr X has the right to apply to the Court of Protection should he wish to challenge the decision that Mrs Y will remain in the care home. The Council will write to him formally setting out this option. This is an appropriate action.

Inadequate complaint handling.

42. At the time of Mr X’s complaint in October 2020, Mrs Y was not engaging with council officers and staff believed she may have capacity to make decisions about her care. The Council’s response to the MP’s letter was brief, but it gave details of the actions it was taking so my view is there was no fault. The Council did not act on the complaint letter of October 2020 and the letter appears to have gone astray, but there is no fault by the Council or any injustice because the Council replied to the issues the MP raised and so Mr X had a response to his concerns.

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Final decision

43. There was no fault in the way the Council dealt with a dispute between family members about where Mrs Y should live. The Council acted in line with the Mental Capacity Act and I am satisfied it took Mr X’s views as well as Mrs Y’s into account.
44. I have complete the investigation.

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Investigator's decision on behalf of the Ombudsman