Summary: There was delay by the Council in authorising a deprivation of Mr Y’s liberty which was fault. The fault did not cause Mr Y distress. The Council will apologise to Ms X, make her a symbolic payment to reflect her avoidable distress and time and trouble complaining and take action described in this statement.

The complaint

1. Ms X complained London Borough of Sutton (the Council) ignored her complaint about her son Mr Y being deprived of his liberty in a care home. She said Mr Y lived in a locked bare room, was inappropriately medicated and did not have any activities.
2. Ms X said this caused her and Mr Y avoidable distress. She wants the Council to move Mr Y to a different placement and involve her in decisions.

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The Ombudsman’s role and powers

3. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)
4. 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)
5. If we are satisfied with an organisation’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

6. I considered Ms X’s complaint to us, the Council’s response to her complaint and documents in this statement.
7. Ms 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

8. The Human Rights Act 1998 brought the rights in the European Convention on Human Rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. ‘Act’ includes a failure to act. (Human Rights Act 1998, section 6)
9. It is for the courts, and not for us, to decide whether a person’s human rights have been breached. We decide whether there has been fault causing injustice. Where relevant, we consider whether a council has acted in line with legal obligations in section 6 of the Human Rights Act 1998. We may find fault where a council cannot evidence it had regard to a person’s human rights.
10. Article 5 of the European Convention on Human Rights says everyone has the right not to be deprived of their liberty except in limited cases specified in the article. It is permissible to detain someone who is of ‘unsound mind’. There should be a proper legal basis for any detention.
11. 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)
12. The Code of Practice to the Mental Capacity Act (the Code) is statutory guidance which councils must have regard to. The Code 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)
13. Decisions taken for a person lacking mental capacity must be in their best interests. The Mental Capacity Act and the Code provide a checklist of factors decision-makers must 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.
14. 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)
15. In 2014, the Supreme Court decided in the ‘Cheshire West case’ that a deprivation of liberty occurs when ‘the person is under continuous supervision and control and is not free to leave and the person lacks capacity to consent to these arrangements’. (P v Cheshire West and Chester Council and another; P&Q v Surrey County Council [2014] UKSC 19)
16. 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.
17. 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). 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)
5. The hospital or care home can ask for a new standard authorisation to begin as soon as the old one has run out. (paragraph 123)
18. If there is no-one (other than a professional carer) appropriate to be an RPR, the supervisory body should instruct an Independent Mental Capacity Advocate (IMCA) to represent the person (Mental Capacity Act 2005, section 39C). An IMCA under this section is known as a ‘paid RPR’.
19. An RPR has the right to apply to the Court of Protection to challenge a standard authorisation. Any other person can also apply to the court, but they need the court’s permission first. (Mental Capacity Act 2005, section 50 and section 21A)

What happened

20. Mr Y is an adult who has learning disabilities and autism. He lives in a care home arranged and funded by the Council. Mr Y lacks mental capacity to make many decisions about his care and support. He stays in a separate flat linked to the main building of the care home and he receives one-to-one support, but he is also on his own in his flat with staff checking him regularly.
21. The Council’s records indicate Mr Y’s previous DOLS standard authorisation expired on 3 January 2022 and the previous assessor had recommended an authorisation lasting six months in order to carry out a review of the care arrangements in the home as Mr Y had just changed placement.
22. The care home made a further request for a standard authorisation on 13 January.
23. Ms X complained to the Council about Mr Y’s care in February.
24. We asked the Council for the most recent paperwork authorising the deprivation of Mr Y’s liberty. The Council provided us with a Form 3b (Best interests Assessment/Review) and a DOLS Form 5, granting a standard authorisation.
25. The Form 3b indicates the BIA had email and phone contact with Ms X to seek her views. The BIA also liaised with the RPR and the specialist doctor and none of them felt Mr Y was caused any mental distress by the deprivation of his liberty.
26. Form 3b also noted:
• The BIA considered the care home’s care plans and the Council’s care and support plan, the care home’s assessments and decisions around window restrictors, locking the door, medication and locking clothes away.
• The BIA spoke with the home’s manager and noted that there had not been a review of Mr Y’s activities. The manager said Mr Y had structured activities including music, art, football in the garden, a drive in the minibus, baking, movies, bowling and going to a disco. He was on the waiting list for horse riding. He had not been seen for a medication review since 2020 and the home’s manager agreed to follow this up. The manager said Mr Y’s behaviour had improved recently.
• Ms X objected to the placement in July 2021 and said staff did not have the expertise in dealing with Mr Y’s complex needs. And she raised safeguarding concerns in 2022.
• The BIA could not obtain Mr Y’s views as he smiled and walked away when she spoke to him.
• The RPR told the BIA her only concern was the room was bare and that staff had told her Mr Y had continuous one-to-one support. The BIA said this was not the case and Mr Y was sometimes left alone in his flat and checked every 15 minutes.
• The BIA asked the home’s manager to remove the lock leading to Mr Y’s flat and this happened immediately (on 16 March 2022) and he now had access to the main house without restrictions. The home was a secure, gated facility and the main front door was locked.
• Reviews of Mr Y’s medication had been arranged.
• A less restrictive placement would not meet his needs.
• The mental health assessor (a doctor) was of the view that depriving Mr Y of his liberty had no adverse effect on his mental health.
27. The BIA concluded Mr Y was being deprived of his liberty and he lacked mental capacity to consent to the care arrangements. She recommended the Council’s learning disability team completed a full review of the placement involving his family. In the meantime, the current care arrangements were necessary and proportionate to ensure his safety.
28. The Form 5 granted a standard authorisation on 14 April 2022 to expire on 26 May. The reasons for the temporary extension were because of concerns Ms X raised about the quality of Mr Y’s care. The form noted:
• He had safety checks every 15 minutes
• He needed constant supervision in the community
• He had challenging behaviour including injuring himself. His room was bare for his safety
• He needed close supervision with personal care and did not have access to his clothes because he damaged them
• Intensive support was proportionate to the risks
• There needed to be a full review of activities and medication
• Ms X and Mr Y’s social worker should be involved in the review.

The Council’s response to Ms X’s complaint

29. The Council’s complaint response said:
• Mr Y’s care was subject to a standard authorisation
• A Best Interests Assessor (BIA) reviewed the care arrangements and had a discussion with her
• The BIA concluded:
1. The door was locked to prevent Mr Y from trying to leave. This would be reviewed to see if he could be supported safely in a less restrictive way
2. The room was not ‘personalised’ to reduce the risk of property damage. This would also be reviewed to see if the risk could be managed in a less restrictive way. Staff said he damaged clothing regularly
3. The manager of the care home accepted Mr Y had not gone out often because of the difficulty of managing him (for example, he refused to return). This would be reviewed and community visits would be increased if possible to manage this safely
4. If staff could not contact Ms X by phone, they would update her by email or text every week
5. The BIA and RPR agreed it was in Mr Y’s best interests to stay at the placement
6. The current authorisation was extended for a short period and would then be reviewed again. There were conditions on the extension that the placement must consider less restrictive ways of meeting Mr Y’s needs.

Comments from the Council

30. The Council told me:
• Mr Y has complex needs and any changes to his care plan result in increased self-injury
• It was human error in screening the paperwork which caused a delay in allocating the case to assessors to complete a renewal authorisation. It had changed screening processes to reduce the risk of recurrence
• Following Ms X’s complaint, Mr Y had contact with professionals including a specialist doctor, a BIA and a paid RPR. They did not conclude he experienced any distress
• The DOLS paperwork indicated Mr Y was making progress – a reduction in self-harm and challenging behaviour
• The Council evaluated Ms X’s concerns carefully. It accepted a placement review was needed to consider whether Mr Y would make more progress in a different environment.
• The Council contacted Ms X on five occasions in March 2022 to try and reassure her regarding the arrangements for her son’s deprivation.

Was there fault?

31. There was fault by the Council because between 3 January and 14 April 2022, there was no standard authorisation in place for Mr Y. This means there was no legal basis for his detention for almost three and a half months. The failure to follow the DOLS process and the lack of legal checks means there was no regard to Mr Y’s Article 5 rights during that period.
32. The Council and the care home should both have kept track of Mr Y’s standard authorisation and worked together to ensure it was renewed as soon as it was due to expire. The failure to have in place an effective system to manage the expiry date was not in line with Paragraphs 24 or 123 of Schedule A1 to the Mental Capacity Act and was fault.
33. I note the BIA approved a further six-week standard authorisation in April 2022 and recommended a review of the placement, particularly with regard to medication and activities. This review should have been completed by now.

Did the fault cause injustice?

34. I note the professionals’ view that Mr Y would likely not be adversely affected by being detained. While his mental health may not have been impacted, I consider there was a missed opportunity to see if Mr Y’s care could be delivered in a less restrictive way. So there is avoidable uncertainty for Ms X about whether changes to the care plan might have taken place sooner had the renewal authorisation been completed at the correct time.
35. I note also the BIA recommended removal of the internal locks and that this was actioned immediately. The presence of an internal lock isolated Mr Y and prevented him from interacting with staff and residents in the home and was considered to be disproportionate. However, there is not enough evidence for me to conclude that removal of the lock/key-pad would have happened in January had the authorisation process been completed in time. This is because there is insufficient information about the level of risk at the time.
36. Although there is not enough evidence to conclude any distress to Mr Y, I consider Ms X to have suffered avoidable distress and time and trouble complaining about Mr Y’s care.

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Agreed action

37. The Council has already provided me with a copy of Mr Y’s placement review. Within one month of my final decision, the Council will also:
• Apologise to Ms X in writing and pay her £150 to recognise her avoidable distress and time and trouble complaining.
• Ensure a further standard authorisation is place if appropriate and provide me with a copy of relevant DOLS paperwork.
• Provide me with a copy of the review of screening processes in the DOLS team, highlighting the changes made to the previous process and explaining how the amendments reduce the risk of recurrence.

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Final decision

38. There was delay by the Council in authorising a deprivation of Mr Y’s liberty. The Council will apologise to Ms X, make her a symbolic payment to recognise her avoidable distress and time and trouble complaining and take action described in this statement.
39. I have completed the investigation.

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Parts of the complaint that I did not investigate

40. Ms X seeks a change of placement for Mr Y. She has a right to seek permission to apply to the Court of Protection if she wishes to challenge the standard authorisation or challenge decisions regarding Mr Y’s care and support including his placement. I have not investigated the decision to grant the standard authorisation or the decision to continue with Mr Y’s placement, because I consider it reasonable for her to use this legal right if she wants Mr Y to have a change of placement or a lifting of the standard authorisation

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Investigator's decision on behalf of the Ombudsman