Summary: There was no fault in the way the Council respected Mr X’s wishes not to accept a further package of care: Mr X had capacity to make his own decisions about his care.

The complaint

1. Mr A (as I shall call the complainant) complains that the Council abruptly left his late uncle without care when the reablement package stopped, without consulting him first. He says Mr X deteriorated rapidly after the care package ceased.

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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’. 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)
3. 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 the information provided by Mr A and by the Council. Both Mr A and the Council had an opportunity to comment on an earlier draft of this statement and I considered their comments before I reached a final decision.

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What I found

Relevant law and guidance

5. 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.
6. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.

7. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. This replaced the Enduring Power of Attorney (EPA). An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.
8. 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. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• 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.

What happened

9. Mr X was an elderly man who lived on his own. Mr A, his nephew, (who held power of attorney for Mr X) contacted the Council out of concern that his uncle was failing to eat properly and was doubling up his medication doses. Mr X had cold meals (sandwiches and pudding) delivered to him at home during the week but there was evidence to show he threw away the sandwiches. Mr A purchased other fresh food for Mr X.
10. The Council arranged a reablement package from 10 March 2021 to prompt Mr X to start preparing food again. The reablement team said Mr X had declined care when offered before and was frustrated at having his wishes overridden but consented for the team to visit.
11. The reablement team reported back to the social care team on a weekly basis about Mr X’s needs and capabilities. The first report noted, “Washed and dressed on arrival (wet sink and flannel). Aware not to take meds today and to start again tomorrow. Home tidy, bed made. (Mr X) adamant that he is eating enough – cereal/porridge for breakfast, meal at lunch, and sometimes sandwich later. Declined to make micro meal from freezer, declined for reablement worker to prepare something and leave for later. Agreed to move visits to lunchtime. Reablement assistant notes “He is a very independent gentleman who just wants to be left alone”.
12. The social work case recording shows that the social work team discussed the ongoing care with Mr A. The social worker also spoke to Mr X’s GP as well as the reablement carers. In view of the concern about Mr X’s frailty and the GP’s concern that he was at high risk of falls, the social work team agreed to put in a teatime call as well as a lunchtime call to Mr X. Reablement carers reported that Mr X continued to decline assistance with personal care and (usually) meal preparation.
13. The Council carried out a review of the month’s reablement care on 7 April. After a joint review by the social worker and the social work assistant at Mr X’s home, the social worker recorded, “Reablement case note of final review which took place on 07.04.21 …. Recommendation of 2 x 30min am and tea to support with meal prep/prompt and meds. (Mr X) is not happy with the recommendations and does not want ongoing care. (Social worker) call to (Mr A) on 07.04.21 and 08.04.21 to discuss review – no answer – message left.”
14. The case recording also shows the social worker spoke to Mr X’s GP “who confirms she has no reason to doubt (Mr X’s) capacity and assesses this each time she sees him”.
15. The social worker discussed the next steps for Mr X with her manager. They noted that although the reablement team recommended a care package twice a day for Mr X, no-one had doubts about his capacity to refuse it. The GP had told the social worker there was an “unconfirmed dementia diagnosis” on Mr X’s record but no diagnostic tests had been completed to confirm it. District nurses told the social worker they had seen evidence that Mr X had been eating, they were weighing him on a fortnightly basis and he had put on some weight at the last weighing.
16. A note for 21 April states that a different social worker contacted Mr A to say reablement would be ending the following day and recorded “Notes state he was happy with this, knowing that there would still be an allocated worker and DNs”. A further note states Mr X’s social worker also called Mr A but there was no reply: she left a message saying reablement would stop the following day. Mr A says he never said he was happy that care would finish, and no-one called him back to discuss the matter.
17. On 22 April Mr A called the social worker. He said he had not agreed to care ending so abruptly, and he had not said he was happy. He did not understand that reablement could recommend care twice a day but the Council would end the care package. He said his uncle could not make the decision for himself. The social worker said the Council could not continue with care that Mr X declined.
18. On 23 April Mr X fell at home and was taken into hospital. Mr A contacted the Council to ask for further explanation why Mr X’s care package had been stopped abruptly when there had been a recommendation for two visits a day.
19. Mr X was discharged from hospital on 27 May with a package of care. He was readmitted on 1 June. He sadly died in hospital on 26 June.

The complaint

20. Mr A complained to the Council in May 2021. He said the Council had first told him that a care package was recommended then with less than 24 hours’ notice was told all care was being withdrawn as Mr X had not agreed to it, and as he had capacity his decision could not be overridden. He complained that staff had not returned his calls as promised. He said the Council had failed to act on the ‘red flags’ of general deterioration, weight loss, failing to eat and evidence of uneaten food in the bins.
21. The senior locality manager responded in June. She partially upheld the complaint that calls had not always been returned and apologised. She said despite the recommendation for more care after the reablement package stopped, Mr X was continuing to refuse care. She said the social worker, Reablement staff, District Nurses and GP had all been consulted regarding Mr X’s capacity and “each professional had advised they did not have concerns”. Although the GP had made a referral to the Community Mental Health Team, the team would not become involved as there were no doubts abut Mr X’s capacity. For that reason the Council could not conduct a capacity assessment.
22. The locality manager also said that some of the ‘red flag’ signs Mr A mentioned – for example Mr X’s breathlessness – had also been noted by the reablement staff and reported to the GP. Other concerns, such as a possible weight loss, had been discussed with the District Nurses who did not have concerns as Mr X had been seen to put on some weight.
23. Mr A complained again. He said a proper review meeting should have been held before the decision was taken to stop the care, and a full assessment of Mr X’s condition. He said the Council had not explained why it had ceased care without consultation.
24. The assistant team manager replied. She said there had been review meetings when recommendations were made to Mr X for ongoing care but he had declined it. She said the purpose of the Reablement Team visiting was to make an assessment of Mr X’s needs: ‘Rather than a one-off assessment visit with a practitioner, the Reablement Service are able to provide ongoing and frequent updates to present a fuller picture of a situation.’ She said there had been consultation about the continuing service with Mr X, but ‘He had made it very clear that he did not wish to have ongoing care’.
25. Mr A complained to the Ombudsman. He complained the Council had stopped support for Mr X after it had said it would continue, even though Mr X was in poor and deteriorating health.
26. The Council says although Mr X had an unspecified diagnosis of dementia, he was deemed to have capacity about his care needs. Neither his GP, the social worker, the CMHT or the district nurses expressed concern about his capacity. The Council says several professionals involved with Mr X, including the GP, had indicated they had wished he had accepted a small package of care to support him with medication, personal care and nutrition, but it was deemed that he had capacity to make the decision to decline the package of care.

Analysis

27. The Council put in a reablement package to assess Mr X’s needs over a period of six weeks. It carried out reviews appropriately and acted on the results. There was no evidence of fault there.
28. Mr X was agreed to be frail but none of the carers, nurses or other professional staff involved with his care had any doubts that he was able to make his own decisions about his care.
29. It was not fault on the part of the Council to agree to Mr X’s wishes to withdraw the care package as he asked, and not to put in place the recommended care. The Mental Capacity Act specifically notes that ‘a person should not be treated as unable to make a decision because they make an unwise decision’. Although a number of the professionals involved with Mr X said they wished he had accepted a care package, his refusal to do so was not evidence that he was incapable of making that decision for himself. No-one could force him to accept care he did not want.

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Final decision

30. I have completed this investigation on the basis there is no evidence of fault by the Council.

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Investigator's decision on behalf of the Ombudsman