The Ombudsman's final decision:
Summary: The Council delayed carrying out an assessment following a Deprivation of Liberty Safeguards referral. It was also at fault for discussing Mr B’s case with a third party without his consent. The action the Council has already taken has remedied his injustice. The Council has agreed to also take action to prevent similar failings in future.
- Mr B complains that the Council stopped contributing towards the cost of his wife’s respite care, told him that he would have to pay the full cost and instructed the care home to call the police if he tried to take his wife out of the care home.
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)
- We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
- 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)
How I considered this complaint
- I have:
- considered the complaint and the documents provided by the complainant;
- discussed the issues with the complainant;
- made enquiries of the Council and considered the comments and documents the Council has provided; and
- given the Council and the complainant the opportunity to comment on my draft decision.
What I found
- 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.
- It is the responsibility of the care home or hospital to apply for authorisation. Six assessments, including a best interests assessment, must be carried out before authorisation can be given. Assessments must be completed within 21 days for a standard deprivation of liberty authorisation, or, where an urgent authorisation has been given, before the urgent authorisation expires. Without authorisation, the deprivation of liberty is unlawful.
- Mr B cares for his wife, Mrs B. In January 2017, Mr B asked the Council to arrange two weeks respite care for Mrs B. The Council told Mr and Mrs B that they would need to contribute £121.39 per week towards the cost of her care, which they accepted.
- The Council arranged a respite care placement to start on 20 January. But when Mr B became unwell and was admitted to hospital on 18 January, his daughter arranged for the respite care to start early and a neighbour took Mrs B to the care home that day.
- Mr B agreed for the respite care placement to be extended by two weeks, until 17 February. The Council’s records show that Mr B had concerns about his ability to care for Mrs B when she returned home. Mr B was taken to hospital on another two occasions and his GP told social workers that he was not well enough to care for Mrs B.
- Social workers arranged to visit Mr B at home on 8 March. Mr B’s neighbour was present and she explained that their main concerns were about Mr B’s ability to care for Mrs B at night and about what would happen when Mr B had to attend hospital appointments. The social workers explained that Mrs B did not have any night time needs and that they would arrange for district nurses and carers from its enablement service to visit four times a day. The Council’s records show that Mr B became angry when the social workers said that the Council was unable to continue to fund the respite care. Mr B said that he would not pay the full cost and would instead remove Mrs B from the care home that day. Mr B’s neighbour suggested they leave Mr B’s home. The social workers and Mr B’s neighbour went to another neighbour’s house where they continued to discuss the situation.
- Afterwards, one of the social workers completed a risk assessment. She told the care home to complete an immediate urgent DoLS referral and to contact the police if Mrs B did not remain in the care home.
- Mr B went to the care home to take Mrs B home that afternoon. He decided not to after care home staff told him that if he did, they would have to call the police.
- Mr B met with social workers at the care home on 17 March. They discussed Mr B’s concerns about the impact Mrs B returning home would have on his health and wellbeing and the support which would be provided for Mr and Mrs B. They explained that Mr B would not have to pay more than £121.39 per week for Mrs B’s care.
- The Council appointed a Best Interests Assessor and she carried out an assessment on 7 April. During the assessment, Mr B told the Assessor that he intended to take Mrs B home the next day and he would look after her. He said that he did not want carers or district nurses coming into his home. The Assessor noted that social workers and health professionals were concerned about Mr B’s ability to cope with Mrs B’s care needs and had suggested she remain in the care home until a phased return home had been arranged.
- The Assessor decided that the requirements for a deprivation of liberty authorisation had not been met because Mrs B had capacity to make decisions about her care arrangements. The Assessor noted that Mrs B wanted to return home and was agreeable to the social workers’ suggestion of returning home with a package of care and district nurse support. But she was equally agreeable to her husband’s suggestion that he provide all of her care.
- Mr B took Mrs B home the next day without a package of care in place.
- The Council has charged Mr and Mrs B £797.71 which is £121.39 per week for the period 18 January 2017 to 4 March 2017. I am satisfied that Mr B agreed for Mrs B to remain in the care home for this period and that Mr and Mrs B agreed to contribute £121.39 per week towards the cost of Mrs B’s care. I do not consider it is fault for the Council to require Mr and Mrs B to pay this amount for the period 18 January to 4 March. It is not requiring Mr and Mrs B to contribute towards the cost of Mrs B’s stay in the care home for the period 5 March to 8 April.
- When the social workers left Mr B’s home with his neighbour on 8 March, they went to another neighbours’ house and continued to discuss the case with the other neighbour present. The social workers should not have done this without Mr B’s consent. This was fault. However, I do not consider it caused Mr B any significant injustice because both neighbours were significantly involved with supporting Mr B. He had invited one of his neighbours to be present during the home visit and he invited the other neighbour to attend a subsequent meeting with social workers.
- Following the home visit on 8 March, a social worker carried out a risk assessment. She took into account the concerns which had been raised about Mr B’s ability to care for Mrs B at that time and his decision to remove her from the care home while refusing to accept the enablement service or district nurse support. The Council decided that it was not safe for Mrs B to return home without a package of care and that care home staff should contact the police if Mrs B did not remain in the care home. I have found no evidence of fault in the way it reached this decision.
- The care home made the DoLS referral on 8 March but the best interests assessment was not carried out until 7 April. This delay was fault. If the assessment had been completed earlier, it is likely that Mr B would have felt able to take Mrs B home sooner. I believe the Council’s failing here caused Mr B unnecessary distress. However, I consider the Council has remedied Mr B’s injustice here by not requiring Mr and Mrs B to contribute towards the cost of Mrs B’s stay in the care home for the period 5 March to 8 April.
- Within four weeks, the Council will remind relevant staff that:
- they must complete assessments for a standard deprivation of liberty authorisation within 21 days; and
- they must not discuss a person’s case with a third party without the person’s consent.
- I have completed my investigation and uphold Mr B’s complaint. There was fault by the Council which caused him injustice. The action the Council has agreed to take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman