The Ombudsman's final decision:
Summary: Ms B complained the Council failed to involve her as next of kin or take account of her father’s wishes when placing him in a care home. Ms B complained the Council placed her father in an inappropriate placement, delayed meeting with her father to discuss his wishes, delayed completing a deprivation of liberty application, delayed completing a mental capacity assessment, failed to hold a best interests meeting, failed to carry out a safeguarding investigation and delayed completing an assessment when he was ready for discharge from hospital. The Council delayed meeting Ms B’s father and in carrying out a mental capacity assessment and safeguarding investigation. There is no fault in the other parts of the complaint. The Council’s delay is caused Ms B distress and created some uncertainty about whether the outcome would have been different. An apology and payment to Ms B, along with an action plan is satisfactory remedy.
- The complainant, whom I shall refer to as Ms B, complained about the way the Council dealt with her father (whom I shall refer to as C) when his partner asked for respite care. Ms B complained the Council:
- Chose a placement for C which was inappropriate as it was for palliative care and C was fit and well;
- failed to consider C’s wish to return home;
- failed to consider the option of adapting her property to enable C to live with her or discuss any alternatives other than permanent care;
- delayed meeting with C to discuss his wishes until he had lost capacity and therefore delayed the mental capacity assessment;
- delayed completing a deprivation of liberty application when it was clear C considered himself unlawfully confined to somewhere he did not want to live and where he had not been assessed as requiring permanent care;
- failed to hold a best interests meeting;
- failed to act when C and his family complained and raised concerns;
- failed to contact her, as C’s next-of-kin, before he went into residential care;
- delayed carrying out a safeguarding investigation; and
- delayed completing an assessment when C was ready to be discharged from hospital in October 2018.
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. The Ombudsman cannot question whether a Council’s decision is right or wrong simply because Ms B disagrees with it. He must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, sections 26(1), 26A(1), as amended and 34(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)
How I considered this complaint
- As part of the investigation, I have:
- considered the complaint and Ms B's comments;
- made enquiries of the Council and considered the comments and documents the Council provided.
What I found
Chronology of the main events
- C was diagnosed with Alzheimer’s in 2014. In April and June 2018 C’s partner asked for respite from the Council.
- In August 2018 the Council carried out an assessment and agreed four weeks respite per year and one-to-one support to access the community. The Council carried out a mental capacity assessment which assessed C as having capacity to agree to his care plan which was a package of care at home and regular respite. C agreed to respite as his partner needed a break.
- C entered the care home for one week respite care on 15 August 2018. When Ms B visited the care home she decided it was not suitable for C’s needs and took C to her own home. By that point C’s partner had told the Council she did not feel able to have C return home as she could not cope with the level of care and care visits needed.
- Ms B contacted the Council on 20 August 2018. Ms B described C’s distress at the respite placement. Ms B asked the Council for an urgent mental capacity assessment. Ms B also asked for an assessment for permanent care but said she would accept respite as an interim. Ms B said she would look at alternative care homes. The Council agreed a further two weeks respite during which the Council would carry out a reassessment. Ms B agreed to that.
- Ms B found an alternative care home placement for two weeks respite and told the Council. Ms B said she was not sure about permanent care but wanted C to go to respite so she could decide what was in his best interests. Ms B also referred to the alternative of adaptations at her house to allow C to live with her. Ms B later contacted the Council to say the placement she had found was for two weeks respite care with a view to permanent care. The Council explained to Ms B it would need to carry out a further assessment before it could agree permanent care as C had only been assessed for respite care.
- The Council tried to contact Ms B to discuss what she had decided about where C should live at the beginning of September.
- The Council had intended to complete a mental capacity assessment of C in September. The Council deferred that assessment due to C’s presentation.
- C went into hospital on 26 September. The Council arranged another mental capacity assessment which was deferred as C had a urinary tract infection which might have affected the outcome.
- At the beginning of October Ms B raised concerns about C’s partner potentially taking C’s money. The Council raised a safeguarding alert. The Council did not progress an investigation of that at Ms B’s request as C was ill.
- The hospital contacted the Council at the beginning of October to discuss alternative respite provision as C could not go back to the care home he had previously stayed in.
- Ms B discussed her wishes for C’s future care with a team manager at the Council on 10 October. Ms B said she wanted a placement that would provide C with more stimulation and where there were more activities. The Council said it could now complete a mental capacity assessment as C was in a more stable condition. The Council said it would then need to hold a best interests meeting so C’s views and wishes could be considered, along with his family. The team manager recorded although C wanted to go home that did not appear a realistic alternative given his declining health.
- On 12 October the hospital assessed C as medically fit for discharge, awaiting a place at an EMI (elderly, mentally infirm) nursing home.
- The Council carried out a mental capacity assessment on 15 October. That assessment decided C did not have capacity to make a decision about his accommodation. The Council held a best interests meeting which recorded his family believed C did not want to go into a home. The meeting recorded C was semiconscious and could not tell anyone what he wanted. The record of the meeting does not show the decision made.
- Ms B contacted the Council again on 22 October to ask for its support to ensure C returned home on discharge from hospital, in line with his wishes. The Council explained the nursing staff had said C now needed end-of-life care as he had deteriorated and there was a fast-track system which meant C could have a team of nurses who could provide care at home. The hospital told the Council it was not making a decision about discharge until 24 October and C’s partner had said she would think about the possibility of C returning home and whether she could cope.
- The Council held a discharge planning meeting on 22 October and deferred the decision until 24 October.
- The Council consulted its legal department which advised the Council could not force the partner to accept C returning home.
- On 24 October the hospital discharged C to a hospice.
- On 1 November C sadly died.
- At the beginning of November Ms B telephoned the Council to discuss her concerns about financial abuse. The Council arranged a safeguarding meeting. That meeting took place on 16 November. The Council decided the matter was more appropriately pursued by the police. The Council recorded as C had passed away the Council had no one to safeguard.
- Ms B says the care home C moved into for his first respite placement was inappropriate for his needs. Ms B says the placement was more suitable for those needing palliative care and C was fit and well. Having considered the documentary evidence I note the care home C at first went to for respite is registered as a home for both dementia and residential care. There is no evidence the home is identified a suitable only for those needing palliative care. Taking that into account, plus the fact C agreed to go into the care home for a respite placement, I have no grounds to criticise the Council.
- Ms B says the Council failed to take account of C’s wish to return home. The evidence I have seen satisfies me from 15 October 2018 onwards C was assessed as not having capacity to make his own decisions. There is no suggestion in the documentary records of any contact from C while he had capacity to suggest he said he wanted to return home. The only documentary record of C’s wishes before he lost capacity is his agreement to go into respite care in August 2018. As there is no documentary evidence to show C told the Council he wanted to return home I cannot say the Council failed to consider C’s wishes.
- In reaching that view I am aware Ms B discussed with the Council C’s wish to return home on 10 October 2018. However, by that point C had deteriorated and was in hospital. C’s partner had also said by that point she would not accept C returning home with a package of care as she did not believe she could cope. I am satisfied the Council acted properly at that point by taking legal advice. That legal advice made clear the Council could not force C’s partner to accept his return. Given those circumstances I have no grounds to criticise the Council.
- Ms B says the Council failed to consider the alternative of adapting her property to enable C to live with her. Ms B says the Council did not consider alternatives other than permanent care. Having considered the documentary evidence, the first time I can see Ms B referred to the possibility of adaptations at her property to enable C to stay with her is in a telephone call with the Council on 23 August 2018. It is clear from the note of that call though Ms B had not decided C should live with her. Instead, the record of the telephone call shows Ms B said she wanted C to go into respite so she could have a look at what was available and decide what was best for C. So, there is no evidence Ms B had told the Council she wanted her property adapted to enable C to live with her.
- I am satisfied the Council tried to clarify the issue of whether Ms B wanted C to move in with her or into permanent care as there is a record of it trying to contact her at the beginning of September 2018 to discuss that. In any event, I have found no evidence the Council was leading the argument for permanent care. The records are clear this is an alternative Ms B was considering and the record from 10 October 2018 shows Ms B told the Council she felt C needed to go into a nursing home. As I am satisfied the documentary records shows Ms B led the discussions about the suitable placement for C and had not said she wanted him to move into her care as a definitive decision I have no grounds to criticise the Council.
- Ms B says the Council failed to meet with C to discuss his wishes until two months after he moved into the care home. Ms B says by that point C’s health had declined and he no longer had capacity. The Council accepts it failed to meet with C in a timely manner. The Council also accepts it should have carried out a mental capacity assessment earlier. The documentary records suggest if the Council had met with C earlier he would have been in a better position to discuss his wishes than he was when the Council carried out the mental capacity assessment. Failure to properly engage with C before October 2018 is fault. However, I could not say if the Council had engaged with C earlier or had carried out a mental capacity assessment earlier the outcome would have been different. That is because irrespective of whether C had capacity to make his own decisions his partner had said she could no longer cope with him returning home. The Council had taken legal advice which made clear it had no powers to require the partner to accept C back home. However, Ms B has a justifiable sense of outrage the Council failed to properly involve C in the decision-making at a time when he may have been able to have greater involvement. Ms B is also left not knowing whether the outcome would have been different had the Council acted earlier.
- Ms B says C had made clear he felt himself unlawfully confined to somewhere he did not want to live. Ms B says the Council should therefore have completed a deprivation of liberty safeguards (DOLS) application. The test for whether a person is being deprived of their liberty has been established by the courts. The courts have established an acid test to see whether a person is deprived of their liberty which consists of two questions:
- is the person subject to continuous supervision and control? and
- is the person free to leave? With the focus being not on whether a person seems to be wanting to leave, but on how those who support them would react if they did want to leave.
- Within one month of my decision the Council should apologise to Ms B for the faults identified in this statement and pay her £400 to reflect her distress and the time and trouble she had to go to pursuing the complaint.
- Within two months of my decision the Council should draw up an action plan to address the faults identified in this statement (or provide evidence its practice development programme does so). That action plan should include:
- consideration of how to keep the service user/vulnerable adult at the centre of the planning rather than being deflected by what the family's wishes are;
- carrying out mental capacity assessments where a person's mental capacity is questioned and arranging a best interests meeting as soon as possible following that if the person is assessed as not having capacity;
- the need to fully complete the record from the best interests meeting to show the options considered and the final decision reached;
- consideration of the circumstances in which advocacy should be considered and/or some type of mediation where there is a difference of opinion or a person wants to return home and the partner disagrees; and
- consideration of progressing a safeguarding referral where a family has requested it be put on hold.
- I have completed my investigation and found fault by the Council in part of the complaint which caused Ms B an injustice. I am satisfied the action the Council will take is sufficient to remedy that injustice.
Investigator's decision on behalf of the Ombudsman