Summary: Mr X complained about the care provided to his wife, Mrs X, during her stay at The Wharf Care Centre, Stourport in 2020. The Care Provider failed to: properly plan Mrs X’s care; assess her mental capacity and consider whether Deprivation of Liberty Safeguards applied. Although this did not cause Mrs X an injustice, it could cause injustice in different circumstances. The Care Provider agreed to review its assessment processes to prevent injustice being caused by similar actions in future so we completed our investigation.

The complaint

1. Mr X complained about the care provided to his wife, Mrs X, during her stay at The Wharf Care Centre, Stourport, in November 2020. He said the Care Provider which runs The Wharf Care Centre failed to provide satisfactory personal care to Mrs X, including help with washing and dressing properly.
2. Mr X removed Mrs X from The Wharf Care Centre less than a week into her planned two week stay. He said it did not provide the care Mrs X paid for so it should refund the care charges.

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The Ombudsman’s role and powers

3. 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 or others. I have used the term fault to describe such actions. (Local Government Act 1974, sections 34B and 34C)
4. If we are satisfied with a care provider’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)
5. We may investigate complaints from a person affected by the matter in the complaint, or from someone the person has authorised in writing to act for them. If the person has died or cannot authorise someone to act, we may investigate a complaint from a personal representative or from someone we consider suitable to represent the person affected. (Local Government Act, sections 26A and 34C)
6. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced various new and often updated rules and guidance during this time. We can consider whether the Care Provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

7. I considered:
• the information Mr X provided and discussed the complaint with him;
• the Care Provider’s comments on the complaint and the supporting information it provided; and
• the relevant law and guidance.
8. Mr X and the Care Provider had an opportunity to comment on my draft decision. I considered their comments before making a final decision.
9. Under the information sharing agreement between the Local Government and Social Care Ombudsman and the Care Quality Commission (CQC), we will share this decision with CQC.

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What I found

Law, guidance and policy

Fundamental Standards of Care

10. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards those registered to provide care services must achieve. The Care Quality Commission (CQC) has issued guidance on how to meet the fundamental standards below which care must never fall.
11. Regulation 9 says providers should personalise care or treatment specifically for individuals. This includes assessing their needs and preferences, designing care or treatment to meet those needs and preferences, and involving the person or their representatives in those decisions as much as possible. However, this is subject to regulation 11.
12. Regulation 11 is about the need for consent. It says that providers should only give care and treatment if the person consents to it unless they lack capacity to consent. This also applies if someone refuses consent. If someone lacks capacity to give, or withhold consent, providers must act in accordance with the Mental Capacity Act 2005.
13. Regulation 17 says care providers must have the right systems or processes in place to comply with the other regulations. This includes keeping accurate and complete records of care or treatment they provide, and any decisions taken about people they care for.

Mental capacity assessments and best interest decision making

14. The Mental Capacity Act 2005 (the 2005 Act) is the framework for acting and deciding for people who lack the mental capacity to make particular decisions for themselves. The 2005 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.
15. 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.
16. A key principle of the 2005 Act is that any act done for, or any decision made on behalf of, a person who lacks capacity must be in that person’s best interests.
17. Section 4 of the 2005 Act provides a checklist of steps that decision makers must follow to decide what is in a person’s best interests. The decision maker must also consider if there is a less restrictive choice available that can achieve the same outcome.

The Care Provider’s policy about distressed behaviour

18. The Care Provider has a policy specifically about distressed behaviour by its residents which includes what to do if someone refuses help with their personal care. It says staff should:
• respect an individual’s right to say ‘no’;
• remember that forcing someone to accept personal care could be abuse;
• find out as much as possible about someone’s usual lifestyle and preferences, and adapt the care provided as much as possible;
• consider the need to complete a mental capacity assessment and best interest decision; and
• think carefully about whether any refusal is unacceptable, focusing on the risk and effects to the person, or others, if the care is not provided.

Deprivation of Liberty Safeguards (DoLS)

19. The Deprivation of Liberty Safeguards (DoLS) is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The safeguards provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home or hospital. The DoLS protect people from being deprived of their liberty, unless it is in their best interests and there is no less restrictive alternative. The legislation sets out the procedure to follow to obtain authorisation to deprive an individual of their liberty. Without the authorisation, the deprivation of liberty is unlawful. It is the responsibility of the care home to apply for authorisation. The Government issued a DoLS Code of Practice in 2008 as statutory guidance on how DoLS should be applied in practice.
20. The Supreme Court decided on 19 March 2014, in P v Cheshire West and Chester Council and another and P and Q v Surrey County Council, that 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”.
21. Once there is, or is likely to be, a deprivation of liberty it must be authorised under the DoLS scheme in the 2005 Act.
22. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must seek authorisation from the ‘supervisory body’ (the local authority). There must be a request and an authorisation before a person is lawfully deprived of their liberty.

What happened

23. Mr X’s wife, Mrs X, has dementia and usually had carers come to her home three days a week to help with personal care such as washing and dressing. Mrs X can get distressed when helped with her personal care. Mr X has power of attorney to manage Mrs X’s property and financial affairs.
24. In November 2020, Mrs X went into The Wharf Care Centre (the care home), run by Ripon Stourport Care Limited (the Care Provider) for a planned two-week respite stay. Mr X arranged the stay and Mrs X paid for it.
25. In its assessments before Mrs X started her stay, the Care Provider noted she:
• often resisted help with her personal care, including physically resisting. This was often worse with people Mrs X was not familiar with;
• did not usually want to get undressed and could become distressed when helped with this;
• could be anxious with new people and in new environments;
• might try to leave the care home; and
• lacked capacity to consent to some of the assessments.
26. The care notes state that a few days into her stay, Mrs X started to become distressed when care staff tried to help her with washing and changing her clothes. This included pushing and biting care staff. When this happened, care staff decided to wait a while and try helping Mrs X later. On most occasions that approach was successful, and the care staff could provide Mrs X with the care she needed.
27. Mr X booked a 30-minute window visit to see Mrs X four days into her stay. However, Mr X said he had to wait 25 minutes before care staff brought his wife to see him and, when she did, she only stayed for a short while before walking away. He said his wife was still in her nightdress and did not look cared for properly when he visited. He also said the staff appeared unconcerned when his wife left the room and did not go after her.
28. The care notes state that on the morning of Mrs X’s visit, she had refused to allow care staff to help her wash or change her clothes. Care staff tried later in the day, but Mrs X again refused any help. The following day, after several tries care staff could help Mrs X shower and change her clothes.
29. Mr X said he tried to arrange with the care home to take his wife home on the day of his visit and the day after, but no manager was available. Mrs X returned home two days after Mr X visited her. Mr X said that after he took Mrs X home, he had to help her shower because her clothes were soiled and she had not been cleaned.
30. The care notes state that on the day Mrs X returned home, she had refused help with her personal care, including with washing and changing clothes that morning. Care staff had intended to try again later but Mrs X returned home before they could do so.

My findings

31. The assessments done before and at the time of Mrs X’s admission to the care home show it identified she often resisted help with her personal care. However, there is no evidence the care home discussed strategies with Mr X or Mrs X’s usual carers for supporting her, or incorporated these into a personalised care plan for Mrs X. Because of this, I am not satisfied the care planning for Mrs X was properly person centred as required by regulation 9. The Care Provider also failed to follow its own policy on distressed behaviour when planning Mrs X’s care. Since this could have caused injustice to Mrs X, this was fault.
32. The Care Provider identified Mrs X did not have capacity to consent to most of its assessment of her. Because of this and Mrs X’s resistance to personal care, the Care Provider should have considered assessing Mrs X’s mental capacity to decide whether to accept help with her personal care. There is no evidence the Care Provider did this. Since this could have caused injustice to Mrs X, this was also fault.
33. However, I am not satisfied the Care Provider’s actions actually caused Mrs X an injustice. Even if it had explored strategies with Mr X or Mrs X’s carers, it is likely the outcome would have been the same. This was the first time Mrs X had gone into respite care and she was with unfamiliar carers. Due to the COVID-19 restrictions, the Care Provider could not ask Mrs X’s usual carers to help her settle in, which it said it would normally have done. The Care Provider said Mrs X’s usual carers were comfortable being ‘firm’ with her, but that its policy was to encourage and support, rather than force someone to accept personal care.
34. Similarly, even if the Care Provider had assessed Mrs X and decided she did not have capacity to refuse help with her personal care, it is unlikely it would have cared for her differently. When deciding whether to restrain Mrs X or force her to accept personal care, the Care Provider would have needed to consider what was in her best interests and weigh up the risks to her. Considering the care Mrs X refused, and that waiting and trying later were usually successful, it is unlikely care staff would have decided to force Mrs X to accept their help. None of the care Mrs X refused represented a significant risk to her for the periods she refused.
35. I appreciate that Mr X was concerned about Mrs X’s appearance during his visit and that she did not appear to be her usual self. Although staff did not go after Mrs X when she left the visiting room, she was free to do so. There is no evidence Mrs X was at any risk by leaving the room.
36. The Care Provider also identified, in its pre-admission assessment, that Mrs X might try to leave the care home if she could. The way the Care Provider recorded this implied that Mrs X might lack the capacity to decide to remain in the care home and that staff might have prevented her leaving had she tried to do so. On that basis, the Care Provider should have considered whether it needed to apply to the local council for a DoLS authorisation. There is no evidence the Care Provider did this and the section of Mrs X’s pre-admission assessment form about DoLS was not completed. The failure to properly consider the need for a DoLS authorisation and to record this could also have caused Mrs X an injustice, so this was also fault.
37. However, I am not satisfied this fault actually caused Mrs X an injustice since there is no evidence she tried to leave the care home during her stay.

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Agreed action

38. Although the Care Provider’s actions did not cause Mrs X an injustice, I have decided to make recommendations to prevent injustice being caused in the future because of similar action by the Care Provider.
39. Within three months of my final decision the Care Provider will review its admission assessment process at The Wharf Care Centre to ensure it properly:
• explores (with close family members and carers, where relevant) and records residents’ usual routines and preferences for personal care;
• considers and records whether a mental capacity assessment is needed for decisions residents may need to make about their personal care; and
• complies with any current law and guidance relevant to deprivation of liberty and records this in the assessment.

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Final decision

40. The Care Provider failed to: properly plan Mrs X’s care; assess her mental capacity and consider whether Deprivation of Liberty Safeguards applied. Although this did not cause Mrs X an injustice, it could cause injustice in different circumstances. The Care Provider agreed to review its assessment processes to prevent injustice being caused by similar actions in future so I have completed my investigation.

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Investigator's decision on behalf of the Ombudsman