Summary: Ms C complains staff at Dryclough Manor refused to allow her father, Mr D, to attend an urgent scan. He was admitted to hospital two days later. The Ombudsman does not find fault as the evidence suggests Mr D chose not to go to the scan.

The complaint

1. Ms C complains about Dryclough Manor’s (the care provider) actions in caring for her father, Mr D. On 4 December 2019, Ms C arrived to collect Mr D for a hospital appointment. However, she believes the staff refused to allow Mr D to leave, rather than Mr D making that decision. As a result, Ms C says Mr D was admitted to hospital with sepsis two days later.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
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)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.

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How I considered this complaint

5. I have considered a complaint form Ms C completed and agreed the summary of complaint with her. I have asked the care provider for comments and considered its response with supporting documentation, including statements from staff present on the day and care records.
6. Ms C and the care provider 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

What should have happened

7. 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 themselves.

A person must be presumed to have capacity to make a decision unless it is established that he or she lacks capacity. A person should not be treated as unable to make a decision:

• because he or she makes 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.

8. The person to assess an individual’s capacity will usually be the person who is directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.

What did happen

9. When Mr D was admitted to the care provider’s home, it assessed him as having full capacity. The care provider has provided a copy of a communication care plan as Mr D had difficulties hearing. The care plan was completed at the end of November 2019 and notes Mr D had full capacity.
10. Ms C arrived to take her father to a scan in December 2019. There is a conflict between the versions of events between Ms C and the care provider.
11. Ms C says:
• Her son and his girlfriend approached the care provider and asked for Mr D to be brought outside but the care provider refused.
• Ms C then got out of her vehicle and asked the care provider to bring Mr D outside but it again refused.
• Ms C then went to knock at the door and noticed Mr D in the dining room. She knocked on the window and he waved at her. The staff then wheeled Mr D away and Ms C assumed they were bringing him outside.
• When staff did not bring Mr D outside, Ms C became concerned for his welfare and called the Police and the Council. The care provider advised the Council it was concerned about Ms C’s anger and Mr D said he did not want to go to the scan.
12. The Care Home says:
• Due to an altercation with the family a few days prior, staff told Ms C’s son they would bring Mr D to a side door. However, staff advised Ms C’s son he would not be allowed to enter the home.
• Ms C overheard this and began shouting and swearing at staff. She also banged on the windows and kicked the side door.
• Mr D said he did not want to go with Ms C.
• The care provider spoke to the Council which agreed it was not in Mr D’s interests for him to go with Ms C.
13. Mr D’s son advised the care provider not to allow Ms C to take Mr D to the scan as he believed it was organised by Ms C’s friend at the hospital where she worked. Mr D’s son believed the Consultant had never seen Mr D and arranged the scan as a favour to Ms C. The care provider has provided a statement from Mr D’s son to this effect.
14. The care provider has provided statements from five staff members present on the day. Four of the statements confirm Mr D said he did not wish to go with Ms C.
15. The care provider’s records show a Council officer visited the following day to assess Mr D’s capacity. The officer concluded Mr D had full capacity to make decisions.
16. The Council rearranged the scan the following week with Mr D’s son. However, Mr D collapsed three days later and was taken to hospital by ambulance. He had a urinary blockage and needed a catheter.
17. During the course of my investigation, Ms C has provided a letter from the consultant who was supposed to see Mr D for his scan. The Consultant expressed the view that Mr D was unlikely to have had capacity on the day due to his age and health.

Analysis

18. The care provider has provided evidence from five members of staff on the day. Four of those statements document Mr D saying he did not wish to leave with Ms C. The quote from Mr D in the statements is consistent.
19. In considering this complaint I have kept in mind the balance of probabilities standard we use when considering a conflict of evidence. In this case, four staff members say Mr D did not wish to go with Ms C. Ms C was not present at the time and therefore, while I note her statement Mr D would not have said he did not wish to go with her, she was not witness to what he did say. I am therefore persuaded, on the evidence, that Mr D did say he did not wish to go with Ms C.
20. I have taken into account the care provider’s view, with supporting evidence, that Mr D had capacity. I have also considered the Council officer’s view seeing Mr D the following day, that he had capacity. I have also considered the letter Ms C provided from the consultant. I consider it likely, based on the evidence, that Mr D did have capacity on the day to decide not to go with Ms C. I have balanced the care provider’s evidence against the letter from the consultant. However, the consultant said it was ‘likely’ Mr D did not have capacity on the day. He did not see Mr D. The care provider’s staff and Council officer spoke to Mr D first-hand and I therefore accept they were in a better position to assess whether Mr D had capacity. There does not appear to be fault.

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Final decision

21. I have completed my investigation on the basis there does not appear to be evidence once fault. The evidence suggests it was more likely than not that Mr D had capacity and chose not to attend the scan.

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Investigator's decision on behalf of the Ombudsman