Summary: Mr B complained a care home allowed his mother’s husband to take her out unsupervised ignoring a best interest decision and putting her at risk. The Council arranged and funded Mrs C’s placement at the care home. We found fault with the Council for overriding Mr B’s decision as lasting power of attorney. The Council agreed to make a symbolic payment to Mr B and his mother for the injustice caused by its faults and provide staff training.

The complaint

1. Mr B complained a care home allowed his mother’s husband to take her out unsupervised ignoring a best interest decision and putting her at risk. The Council arranged and funded Mrs C’s placement at the care 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. 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. We investigate complaints about councils and certain other bodies. Where an individual, organisation or private company is providing services on behalf of a council, we can investigate complaints about the actions of these providers. (Local Government Act 1974, section 25(7), as amended)
4. We normally name care homes and other providers in our decision statements. However, we will not do so if we think someone could be identified from the name of the care home or care provider. (Local Government Act 1974, section 34H(8), 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:
• Mr B’s complaint and the information he provided;
• documents supplied by the Council; and
• relevant legislation and guidelines.
7. Mr B and the Council commented on a draft decision. I considered their comments before making my final decision.

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What I found

Legislation and guidance

8. The Mental Capacity Act 2005, covering England and Wales, provides a statutory framework for people who lack capacity to make decisions for themselves, or who have capacity and want to make preparations for a time when they may lack capacity in the future. It sets out who can take decisions, in which situations, and how they should go about this. The Office of the Public Guardian has published a code of practice to accompany the Act, ‘Mental Capacity Act 2005 Code of Practice’.
9. Under the Act, many different people may be required to make decisions or act on behalf of someone who lacks capacity to make decisions for themselves. The person making the decision is referred to as the ‘decision-maker’, and it is the decision-maker’s responsibility to work out what would be in the best interests of the person who lacks capacity.
10. Sometimes one person will want to give another person authority to make a decision on their behalf. These can be decisions about property and affairs, and personal welfare. A power of attorney is a legal document that allows them to do so. Under a power of attorney, the chosen person (the attorney or donee) can make decisions that are as valid as one made by the person themselves.
11. If a lasting power of attorney (LPA) has been made and registered, or a deputy has been appointed under a court order, the attorney or deputy will be the decision-maker, for decisions within the scope of their authority.
12. Personal welfare LPAs might include decisions about:
• who the donor may have contact with; and
• whether the donor should take part in social activities, leisure activities, education or training.
13. A decision-maker may be faced with people who disagree about a person’s best interests. The decision-maker will need to find a way of balancing these concerns or deciding between them. The first approach should be to review all elements of the best interests checklist with everyone involved. They should include the person who lacks capacity (as much as they are able to take part) and anyone who has been involved in earlier discussions. It may be possible to reach an agreement at a meeting to air everyone’s concerns. But an agreement in itself might not be in the person’s best interests. Ultimate responsibility for working out best interests lies with the decision-maker.
14. If someone wants to challenge a decision-maker’s conclusions, there are several options, including holding a formal or informal ‘best interests’ case conference.
15. Ultimately, if all other attempts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
16. In December 2018, we issued guidance ‘principles of good administrative practice’. One of these principles is being open and accountable which includes keeping proper and accurate records.

What happened

17. This chronology includes key events in this case and does not cover everything that happened.
18. Mr B’s mother is Mrs C. Mrs C has dementia. Mrs C is married to Mr C. Mr B and his brother, Mr D, have LPA for health and wellbeing for Mrs C. Mr C is not Mr B or Mr D’s father.
19. In May 2021, Mr B raised concerns about Mr C neglecting and abusing Mrs C. This included Mr C leaving Mrs C unsupervised when they were out, and Mr C injuring Mrs C when she tried to hit him when he was driving. The Council completed a mental capacity assessment and found Mrs C did not have capacity to make decisions about her care needs and where they should be met. The Council carried out a best interest assessment and decided Mrs C should have four weeks respite in a residential home. The Council arranged for Mrs C to stay at The Gables care home.
20. The Council held a best interest meeting in May 2021. The minutes note Mr B and his brother held LPA for Mrs C and would be the decision makers. It recorded that when Mrs C was living at home with Mr C, it was agreed he should not take her out. It was not recorded that the same restrictions were in place at The Gables. The minutes recorded that Mr D said he was worried about Mr and Mrs C’s safety if they went out in the car, and Mr C agreed not to.
21. Mrs C returned home with a package of care.
22. The Council arranged for Mrs C to stay at The Gables for respite in March 2022.
23. Mrs C returned home in April 2022. A few days later Mrs C returned to The Gables after Mr B raised concerns about Mr C not being able to care for her.
24. Mr B emailed The Gables and asked that Mr C did not take Mrs C off site when he visited her.
25. Mr C visited Mrs C and took her off site.
26. The following day, Mr B emailed The Gables. He explained why he did not want Mr C to take Mrs C off site. He advised there was a history of domestic abuse and Mr C did not understand Mrs C’s illness. He said he and his brother had decided Mr C was not to take Mrs C off site. He said this was in her best interest.
27. Mr C took Mrs C off site a further two times.
28. The Council assessed Mrs C’s capacity to decide if Mr C could take her off site. It decided she lacked capacity to decide. The Council spoke to The Gables who said it had no concerns about Mr C taking Mrs C out and felt it was not in her best interest for this to be prevented. The Gables told the Council it would allow one carer to assist and monitor Mr and Mrs C going out twice. It said it could not extend this. The Council spoke to Mr B. He said he was happy with this arrangement but would like it permanently. He said Mrs C was unsteady and needed to be supported by two people.
29. The Council held a best interest meeting the following day. Attendees agreed a carer would go with Mr and Mrs C when they went off site. The Council agreed to fund a carer once a week for eight weeks when the situation would be reviewed.
30. Mr B complained to The Gables in April 2022 that it had allowed Mr C to take Mrs C off site despite his instructions, as LPA, that this was not to happen.
31. The Gables contacted the Council about Mr B’s complaint. The Council told The Gables it did not agree with Mr B and having LPA did not give him the power to make this decision without a best interest meeting being held first. It said unless The Gables felt Mrs C was in danger, the restriction could not be put in place until the best interest decision had been confirmed.
32. The Gables responded in June 2022. The Gables said it spoke to the Council about the best course of action because it was the placing authority. It said the Council advised that, ‘as there were no current active safeguarding concerns, that it could not see any reason a visit out of the home should not go ahead’. The Gables home advised the Council said it would discuss this with Mr B and confirm it in writing, but this had not happened. It confirmed a best interest meeting had been held and it was agreed that Mr C would be chaperoned when taking Mrs C out. It advised it believed it had acted in Mrs C’s best interests.
33. Mr B asked The Gables to consider his complaint at stage two. He reinforced his concerns about Mrs C’s safety in relation to Mr C’s abusive behaviour. The Gables responded in July 2022. It said it was sure the events in the last few weeks had provided him with the required guidance about Mr C’s visits and it understood the matter was discussed with Mrs C’s social worker. It said it noted his concerns about Mr C’s behaviour and commented that Mrs C appeared to enjoy his visits. It signposted Mr B to the Ombudsman.

Response to enquiries

34. The Council said The Gables advised:
• there were verbal conversations between it, Mrs C’s social worker and Mr B which they did not have records for.
• advice given to staff would have been given verbally at each handover so records did not exist for these.

Analysis

35. My findings are:
36. The Council arranged and commissioned Mrs C’s residential care. The Gables provided services on the Council’s behalf. In these circumstances, we treat the provider’s actions as if they were council actions. So, any fault in the care provided by The Gables, was fault by the Council.
37. Mr B and Mr D were LPA for Mrs C for health and welfare and therefore, had the power to make decisions about her care. This was in conjunction with the Council as its legal duty had been triggered to meet care and support needs. Once Mr B told The Gables he did not want Mr C to take Mrs C off site, this should have not been allowed until a best interest meeting was held and a further decision made. Allowing Mr C to take Mrs C off site was fault.
38. The Council advised The Gables it did not agree with Mr B and having LPA did not give him the power to make this decision without a best interest meeting being held first. This is not the case and could indicate a misunderstanding of the Mental Capacity Act 2005 and the role of LPAs. The Council has clarified it had to consider a number of Acts simultaneously. Alongside the MCA, it also had to consider the Human Rights Act and a person’s right to family life and the Care Act duty to safeguard.
39. Mrs C was allowed to off site with Mr C at least three times. Although, there is no evidence Mrs C experienced harm during these outings, it did expose her to the risk of harm, and this caused Mr B significant unnecessary distress.
40. In December 2018, we issued guidance ‘principles of good administrative practice’. One of these principles is being open and accountable which includes keeping proper and accurate records. Neither The Gables nor the Council were able to provide records of the discussions they had about Mr C taking Mrs C out. In addition, The Gables did not have a record of advice given to staff. Both organisations should have kept accurate and comprehensive records and not doing so was fault.

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Agreed action

41. To remedy the injustice caused by the faults I have identified, the Council has agreed to the following recommendations.
42. Within one month of the final decision, the Council should:
• Apologise to Mr B for the faults found in this investigation. In making this apology the Council should have regard to our guidance ‘making an effective apology’.
• Pay Mr B £200 for the unnecessary distress caused by the Council’s faults.
• Pay Mrs C £300 for being exposed to the risk of harm.
43. Within two months of the final decision, the Council should:
• Continue to provide staff training on the Mental Capacity Act 2005 including the powers of LPAs under its existing MCA training framework and e-learning modules. This training should continue to be delivered to Council staff and those at The Gables.
• Provide domestic abuse awareness training to staff at The Gables.
• Provide a workshop on record keeping. This training should have regard to our guidance ‘good record keeping’. This training/workshop should be delivered to Council staff and those at The Gables.
44. In making these recommendations, I considered the Ombudsman’s guidance on remedies.

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Final decision

45. I find fault with the Council. This fault caused Mr B and Mrs C injustice and the Council has agreed to the recommendations I have made to remedy that injustice. I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman