The Ombudsman's final decision:
Summary: There is no evidence of fault by the Council in this complaint. It followed the code of practice set out in the Mental Capacity Act 2005 before coming to a decision not to move Mr & Mrs Y from their care home.
- Mr X complains the Council delayed in moving his in-laws from their residential care home after he found a suitable alternative placement.
The Ombudsman’s role and powers
- We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. 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 discussed it with Mr X;
- considered the correspondence between Mr X and the Council, including the Council’s response to the complaint;
- made enquiries of the Council and considered the responses;
- taken account of relevant legislation;
- offered Mr X and the Council the opportunity to comment on a draft of this document.
What I found
- The purpose of the Mental Capacity Act 2005 is to protect people who cannot make decisions for themselves or lack the mental capacity to do so. The Act outlines five principles:
- A person must be assumed to have capacity unless it is established that he or she lacks capacity.
- A person is not to be treated as unable to make a decision unless all practicable steps have been taken to support them to make a decision for themselves.
- A person must not be treated as unable to make a decision merely because he or she makes an unwise decision.
- An act done, or decision made, under the Act for or on behalf of a person who lacks capacity must be done, or made, in their best interests.
- Anything done for or on behalf of a person who lacks capacity should be the least restrictive of their rights and freedoms.
- The Mental Capacity Act 2005 Code of Practice provides guidance to professionals acting or making decisions in the best interests of someone who lacks capacity to make decisions themselves. The Code of Practice says:
- The decision maker must consider all relevant circumstances relating to the decision in question.
- The decision maker must take account of the person’s past and present wishes and feelings.
- As far as possible, the decision maker must consult other people if it is appropriate to do so and take into account their views as to what would be in the best interests of the person lacking capacity. In particular, they should consult close relatives who take an interest in the person’s welfare.
- If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.
- Mr & Mrs Y lived together in a care home. Sadly, Mrs Y passed away in December 2019. Mr Y now lives with Mr & Mrs X.
- This complaint relates to events that occurred whilst Mr & Mrs Y lived at a care home.
- On 18 June 2019 Mr X contacted the Council to express concerns about Mr & Mrs Y’s wellbeing, he said he and the wider family wanted to move the couple because of the concerns.
- Mr X says the Council agreed to the move in principle but said it would need to contact Mr & Mrs Y directly to obtain their wishes in relation to a move. Mr & Mrs Y’s allocated social worker arranged to review the couple’s care.
- On 1 July 2019 social services asked its placements team to explore alternative accommodation, including the care home specifically requested by Mr & Mrs X. The placements team informed social services that Mr & Mrs Y would need to give a 28 days’ notice period to the care home.
- The review was carried out on 5 July 2019. I have seen a copy of the review documents. Mr Y said, “I don't mind staying here I feel ok in myself”, and that he had no complaints. There was no concern about Mr Y’s capacity to make this decision.
- During the review Mrs Y appeared to be confused about where she was. The social worker thought she appeared unwell. Because of this the social worker and a social worker from the Council’s safeguarding team visited Mrs Y again on 18 July 2019 to determine if she was better able to express her views and to complete a mental capacity assessment. Mr Y was present during the mental capacity assessment of Mrs Y. The outcome of the assessment concluded Mrs Y was “unable to make the specific decision because she appeared unable to recall what the options were and was unable to recall the conversation when asked”.
- A Best Interest Meeting was held on 23 August 2019. Mrs Y was deemed too unwell to attend. Mr Y was present, along with the social worker, senior social worker and Mr & Mrs X. I have seen a copy of the minutes of this meeting. This shows all parties were consulted and offered the opportunity to present their views. Mr Y read out a typed statement outlining his dissatisfaction with the care home and his wish to move. When questioned further, Mr Y said he could “not really say if he wanted to move to another care home because he needed to discuss this with his wife and agree together what they wanted to do”.
- Mr X said the Chair was causing Mr Y to become confused by asking him the same question when he had already given an answer.
- Mr X said he and the wider family had been asking for Mr & Mrs Y to move to another care home since Mrs Y had fallen at the care home. He said the care provided was poor and there were “slow response times”.
- The ‘Chair’ concluded that other family members should be consulted before a final decision was made. And, whilst that was underway, the social worker would enquire about vacancies at two care homes.
- After the meeting the social worker and social worker from the safeguarding team spoke to Mrs Y alone. I have seen the notes of the discussion. Mrs Y was reported to recognise the social worker and knew she was in a care home. The social worker asked Mrs Y if she wanted to move, Mrs Y asked if she would be better cared for and said, ‘they look after me here.’ She then said she wanted to go home.
- I have seen copies of emails Mr & Mrs X and other family members exchanged with each other, and with the Council. These show Mr & Mrs X’s dissatisfaction with the way the Council was dealing with their request to move Mr & Mrs Y. There is also evidence of family conflict.
- The Council completed the actions agreed at the Best Interest Meeting. It was determined that it was not in Mr & Mrs Y’s best interests to move.
- It is not for the Ombudsman to decide whether Mr & Mrs Y should have moved from their care home. The Ombudsman’s role is to consider if the Council acted properly in coming to a decision about this matter.
- The Mental Capacity Act 2005 gives clear guidance of the process a Council should follow where a person’s capacity to make decisions is in doubt, and where there is a difference of opinion between family members and the Council.
- When Mr X contacted the Council to request a move for Mr & Mrs Y the Council visited the couple at the care home to ascertain their wishes and confirm their capacity to make the decision. The Council acted correctly.
- It is clear from the records Mr Y had the capacity to decide whether he wanted to move. He initially said he did not wish to move. Although he later read a prepared statement saying he did wish to move. When questioned about this he appeared unsure. This cast doubt on his reasons for the change in his opinion. The Council took account of this in its decision making, it was entitled to do so.
- The Council assessed Mrs Y’s capacity to make a decision whether to move from the care home. The assessment shows she did not have capacity to make this decision. There is no fault in the way the Council assessed Mrs Y’s capacity
- The Council convened a Best Interests Meeting to decide the best course of action. The whole purpose of such a meeting is to consider the views and issues of all interested parties. Mr & Mrs X were offered the opportunity to put their views and concerns forward at the meeting. The Council consulted with Mr & Mrs X appropriately and took account of her views.
- There was no fault in the way the Council conducted the Best Interests Meeting.
- I have seen no evidence of delay by the Council in completion of the mental capacity assessment and best interest process.
- The Council adhered to the code of practice set out in the Mental Capacity Act 2005 correctly. In the absence of fault in the way the Council reached a decision, the Ombudsman has no remit to question the merits of the decision however much someone may dislike or disagree with it.
- There is no evidence of fault by the Council in this complaint. It followed the code of practice set out in the Mental Capacity Act 2015 before coming to a decision not to move Mr & Mrs Y from their care home. The Ombudsman cannot question decisions taken without fault.
- It is on this basis; the complaint will be closed.
Investigator's decision on behalf of the Ombudsman