The Ombudsman's final decision:
Summary: There was a delay in authorising the use of a lap belt for Ms Y who lives in a care home and miscommunication by the Council about the issue. This was fault causing Ms Y avoidable distress and time and trouble. The Council has already taken action to minimise the chance of recurrence. It will also apologise and make payments set out in this statement.
- Mr X complains for his mother Ms Y. He complains she was unlawfully restrained in a care home between 2018 and 2021. Mr X says Ms Y was isolated in her room and a lap strap used to restrict her movements. He also complained council officers wrongly said there was a standard authorisation in place.
- Mr X also complained about incorrect information about the standard authorisation affecting health funding decisions.
- Mr X said this caused Ms Y avoidable distress as she spent too long restrained and isolated and a financial loss as she incurred legal fees challenging the matter.
The Ombudsman’s role and powers
- We provide a free service, but we use public money carefully. We may decide not to start or continue an investigation if there is another body better placed to consider this complaint or it would be reasonable for the person to ask for a review or appeal. (Local Government Act 1974, section 24A(6), as amended, section 34(B))
- 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)
- The care home provides care to meet Ms Y’s eligible care needs on behalf of the council. We can investigate its actions. Any fault by the care home is fault by the Council. We normally name care homes in our decision statements but I have not in this case because there is a risk of identifying Ms Y.
- 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 significant injustice, or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
- 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)
What I have and have not investigated
- I have investigated complaint one. I have not investigated complaint two because Mr X is currently challenging NHS decisions about Ms Y’s eligibility for continuing health funding. It is reasonable for him to use or to have used the review or appeal process to correct any inaccurate information about the DOLS position for Ms Y.
How I considered this complaint
- I considered Mr X’s complaint to us, photos of Ms Y and supporting documents and submissions from Mr X. Myself and a colleague discussed his complaint with him on two occasions and took his comments on draft versions of this statement. I also considered records from the Council described later in this statement.
- Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments received before making a final decision.
What I found
Relevant law and guidance
- A council must make enquiries if it thinks a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themselves. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern, to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (Care Act 2014, section 42)
- Decisions taken for a person lacking mental capacity must be in their best interests. The Mental Capacity Act and the Code provide a checklist of factors decision-makers must work through when deciding what is in a person’s best interests.
- Take into account all relevant circumstances.
- If faced with a particularly difficult or contentious decision, practitioners should adopt a ‘balance sheet’ approach.
- Involve the individual as fully as possible.
- Take into account the individual’s past and present wishes and feelings, and any beliefs and values likely to have a bearing on the decision.
- Consult as far and as widely as possible.
- Record the best interests’ decision. Not only is this good professional practice, but decision-makers will need an objective record should the decision or decision-making processes later be challenged.
- A decision-maker should consider the least restrictive option. This means before a person acts or makes a decision for someone who lacks capacity, they should consider if the purpose can be achieved in a way that is less restrictive of the person’s rights and freedoms. (Mental Capacity Act 2005, section 1)
The Deprivation of Liberty Safeguards
- The Deprivation of Liberty Safeguards (DOLS) framework protects people who lack capacity to consent to being deprived of their liberty in a care home or hospital and who are not detained under the Mental Health Act 1983. People are instead detained under a standard or urgent authorisation.
- Schedule A1 to the Mental Capacity Act 2005 establishes the DOLS. It says the following:
- Where it appears a person in a hospital or care home is being deprived of their liberty and lacks capacity, the hospital or care home must request a standard authorisation. (paragraph 24)
- To obtain a standard authorisation, the care home or hospital (‘the managing authority’) makes a request to a team in the council (‘the supervisory body’). The supervisory body then carries out six assessments to decide whether to approve the authorisation: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’. (paragraph 33)
- A managing authority can grant itself an urgent authorisation for up to seven days to allow for completion of a standard authorisation. (paragraph 76)
- A managing authority can ask the supervisory body to extend an urgent authorisation for a maximum of seven further days if the supervisory body has not completed the assessments for a standard authorisation. The supervisory body may approve an extension if it appears there are exceptional reasons why it has not yet been possible to complete the assessments for a standard authorisation. (paragraph 84)
- A supervisory body can grant or refuse an authorisation and it can make conditions including changes to a care plan to ensure there are fewer restrictions. It also sets a time limit for the authorisation. (paragraphs 50 to 53)
- Once a supervisory body has approved a standard authorisation, it must appoint a relevant person’s representative (RPR) as soon as possible and practical to represent the person who has been deprived of their liberty. The RPR’s role is to represent and support the person in relation to the deprivation of liberty safeguards, including, if appropriate, triggering a review, using the complaints procedure or making an application to the Court of Protection. RPRs must have regular contact with the person. (paragraphs 139-140)
- The supervisory body must, as soon as is practicable, give a copy of the standard authorisation to the person, their RPR, the managing authority and every interested person consulted by the best interests’ assessor. An interested person includes the partner of the detained person where the couple live together. (paragraphs 57 and 185)
- Where a managing authority has granted itself an urgent authorisation, the process for a standard authorisation must be completed within the urgent authorisation period. (Regulation 13(2), the Mental Capacity (Deprivation of Liberty: Standard Authorisations Assessments and Ordinary Residence) Regulations 2008)
- The Association of Directors of Social Services (ADASS) developed a screening tool to help councils prioritise DOLS requests. We understand many, if not all, local authorities use this tool or a version of it. ADASS’s introduction to the tool cautions that “use of this tool must be balanced against the legal criteria for the Deprivation of Liberty Safeguards which remains unchanged”. The tool suggests criteria for prioritising requests into ‘higher’, ‘medium’ and ‘lower’ priorities.
The Human Rights Act 1998
- The Human Rights Act 1998 brought the rights in the European Convention on Human Rights into UK law. Public bodies, including councils, must act in a way to respect and protect human rights. It is unlawful for a public body to act in a way which is incompatible with a human right. ‘Act’ includes a failure to act. (Human Rights Act 1998, section 6)
- It is for the courts, and not for us, to decide whether a person’s human rights have been breached. We decide whether there has been fault causing injustice. Where relevant, we consider whether a council has acted in line with legal obligations in section 6 of the Human Rights Act 1998. We may find fault where a council cannot evidence it had regard to a person’s human rights or if it cannot justify an interference with a qualified right.
- Article 5 of the European Convention on Human Rights says everyone has the right not to be deprived of their liberty except in limited cases specified in the article. It is permissible to detain someone who is of ‘unsound mind’. There should be a proper legal basis for any detention.
2018 and 2019
- Ms Y has dementia and lives in a care home since August 2018. Mr X manages her finances as her attorney. He is also her attorney for health and welfare matters. Ms Y was a self-funder (paid for her care privately) when she moved into the care home and the Council was not involved with commissioning the placement in 2018.
- At the end of August 2018, the care home requested a standard authorisation and granted itself an urgent authorisation for seven days. It said Ms Y had a history of falls and was often asking to leave the home and would try and stand up. The care home said it ‘was required and recommended to use a seatbelt to ensure her safety’ The care home had a secure keypad to the exits.
- The DOLS team acknowledged receiving the request and sent an email saying there would be a delay and it was using the ADASS screening tool to prioritise cases.
- A social worker carried out a social care assessment in October 2019 as Ms Y’s savings were close to the funding threshold where she would be entitled to council funding for her care. The social care assessment noted Ms Y had a history of falls and was constantly getting up. She needed close supervision. The manager of the care home is noted to have said a seat belt was authorised under the DOLS process. The assessment noted Ms Y was restrained in her armchair with a seat belt most of the time.
- Ms Y’s savings fell to the funding threshold in January 2020 and it began commissioning her care at the care home.
- The Council’s care and support plan for Ms X in January 2020 noted Mr X had told the social worker he had found Ms Y strapped in her chair with her door closed. The manager of the Care Home said this was because Ms Y was disruptive and said “the seat belt has been agreed under DOLS.” The care and support plan set out Ms Y’s care and support needs. It said she had “a history of falls resulting in serious injuries such as a broken right hip. There is a DOLS in place because she is in restrained in her armchair with a seat belt most of the time and cannot leave the nursing home without supervision in her best interest.”
- In January 2020, Mr X emailed a social worker and reported Ms Y had been left alone in her room unrestrained and had got up from her chair and fallen, injuring her head. The Council’s records indicate the healthcare assistant left her post. The records also say the use of a lap strap was authorised. The Council opened a safeguarding enquiry.
- An email from a member of staff at the care home in January 2020 said the care home needed a recliner for Ms Y’s use only as “she spends most of her day on this and requires a seatbelt”.
- The Council’s safeguarding enquiry report of March 2020 included Mr Y’s views. The report noted:
- Ms Y was left unsupervised in the chair and it wasn’t documented in the care logs whether the belt was used or not.
- The incident occurred as a result of neglect.
- The care home’s care plan for use of the seat belt should have been followed to manage her risk of falls and the confusion she was experiencing resulting from a recent change of room.
- In June 2020, the care home requested a standard authorisation and granted itself an urgent authorisation for seven days. I have seen no records from the Council suggesting it did anything in response to this request.
- The Council told me Ms Y would have had a yearly review of her care and support plan in January 2021, but this was delayed due to COVID-19.
- In March 2021 there was a safeguarding concern about Ms Y falling in her room and not being strapped in.
- At the start of April, Mr Y emailed the social worker referring to a discussion with her the previous day. He asked her to confirm that there was no standard authorisation in place for Ms Y.
- Also in April, a social worker visited the Care Home to complete a review of Ms Y’s care and support needs. Mr X said he wanted the DOLS assessment completed as well. The social worker said there had been two requests for standard authorisations in 2018 and 2020 and no DOLS assessments had been completed. Mr X said he felt guilty for not following this up sooner on his mother’s behalf.
- Also in April, the Care Quality Commission emailed the Council with photos of bruising to Ms Y’s legs which took place in February, saying she sustained them while being restrained by a lap belt.
- The Council opened a safeguarding enquiry. Mr X emailed the social worker to say the absence of preventative measures had caused the situation.
- Mr X complained to the Council about the matters he has raised with us. The Council responded in May 2021 saying:
- It received a request from the care home for a standard authorisation in August 2018,
- The case was screened as non-urgent. It remained awaiting allocation
- It received a second request from the care home in June 2020, again screened as non-urgent and awaiting allocation until March 2021
- The case was reprioritised in March 2021 following contact from the Clinical Commissioning Group.
- The best interests (DOLS) assessor and psychiatrist asked for his consent and this was declined by him
- The safeguarding officer did not check the status of standard authorisations in her enquiry report of April 2021. They should have done and the Council was sorry and had spoken to the member of staff concerned and will instruct safeguarding officers to do so in future
- There was no evidence to support his claim that the lap belt had a significant effect on his mother’s health
- It was sorry for the delay in the DOLS process.
- In May, Mr X emailed the social worker to say a nurse at the care home reported a fresh bruise. The social worker responded to say this would be included in the safeguarding enquiry. She also included a copy of the enquiry questions sent to the care home and asked for his input.
- In June the social worker emailed the care home to ask for incident reports about incidents of bruising on four dates in April and May.
- The care home gave notice on the placement in June. Its letter said it could not meet Mr X’s expectations. Mr X did not want Ms Y to move to a different care home and told the social worker he was concerned about it affecting her health. The social worker liaised with the care home’s manager who said the relationship with Mr X had broken down. The care home’s manager also said the lap belt was being used for no more than an hour in the mornings and for the rest of the day she was settled in the communal lounge.
- In July, the care home’s manager asked the Council to assess Ms Y for additional care. The Council liaised with Mr X’s solicitor to seek his consent to assess Ms Y for additional care.
- An assessor completed the papers in July 2021, recommending a standard authorisation to come into force straight away and to last nine months. The assessor noted:
“Use of lap belt on armchair
Due to memory difficulties Ms Y often forgets that she needs supervision and frequently tries to mobilise independently and to get up from her armchair alone, resulting in several falls in the past. As she is unsteady and at high risk of falls, staff ensure that a lap belt is fastened across her when she sits in her armchair, unless she is being supervised or is with someone who can ensure she stays in the chair. The lap belt is in place for a maximum time of one hour. Staff fasten and unfasten the lap belt for her and record the times when it is in use. “
- The assessor recommended:
- A review of use of the lap belt having regard to the least restrictive method
- Care home to request an urgent medication review
- The Council to review Ms Y’s care and support plan.
- The Council agreed funding for 9 hours of individual care on 30 July.
- Case notes suggest Mr X was reluctant to consent to a virtual DOLS assessment for Ms Y however he gave his consent after a few weeks.
- The Council agreed additional funding for individual care (21 hours) on 19 August 2021. It issued a care and support plan in August setting out Ms Y’s assessed needs. The care and support plan said she was at high risk of falls and was often agitated and needed close and constant supervision by staff. The care and support plan said staff used a lap belt to manage the risk of falling, but it did not say anything about how often the belt was or should be used.
- On 1 September 2021, the Care Home’s manager confirmed individual care was in place for 21 hours a week and there was no longer a lap-belt.
- The safeguarding enquiry report of October 2021 indicates the Council agreed additional funding for one-to-one care for Ms Y in July 2021 which was increased (in August). The manager confirmed the lap belt was no longer being used.
- Unhappy with the Council’s response to his complaint, Mr X complained to us in October 2021.
Comments from Mr X
- Mr X noted that during the period Ms Y’s deprivation of liberty was not authorised, COVID-19 restrictions were in place which, while not the fault of the Council, meant he was not able to visit Ms Y to monitor her wellbeing. He considers the restraint had a profound affect on Ms Y’s wellbeing. He said when he had visited her in 2019, he found her shouting and distressed and isolated in her room. He also considers the notice letter may have been avoided had the DOLS process been followed.
Was there fault?
- There was fault by the Council. It delayed assessing Ms Y and granting standard authorisations following requests from the care home in 2018 and 2020.
- Regulation 13(2) of the Mental Capacity (Deprivation of Liberty: Standard Authorisations Assessments and Ordinary Residence) Regulations 2008 requires the supervisory body (the Council) to complete six assessments to approve a standard authorisation during the period of an urgent authorisation. The urgent authorisation which the managing authority (the care home) granted itself, expired after seven days. This meant that there was no valid authorisation for Ms Y’s continued detention after that date. This was a failure to follow the DOLS framework in Schedule 1A to the Mental Capacity Act 2005 and was fault.
- The Council was lulled into a false sense of security because the manager of the care home told social care staff that the use of the lap belt was authorised when it was not. The manager was wrong. There were a series of missed opportunities to check the position with the DOLS team and to ensure corrective action was taken:
- The manager of the care home should have known there was no standard authorisation because the DOLS team writes to the care home to inform it at the time of granting a standard authorisation. Had the manager checked Ms Y’s records, they would have found no letter existed.
- When the social worker completed a needs assessment for Ms Y in October 2019 and a care and support plan in January 2020, they noted Ms Y was restrained with a lap belt ‘most of the time.’ This should have raised alarm bells that there may be a DOLS/restraint issue. The social worker should have checked with the DOLS team that an authorisation was in place. They did not.
- When the care home asked for a new armchair with a lap belt in January 2020. Again, this raised potential concerns about restraint/DOLS issues.
- When the safeguarding officer was conducting enquiries in about March 2020 after Ms Y fell from the armchair in January 2020.
- The Council used and continues to use ADASS’s screening tool to ‘prioritise’ referrals. We have expressed concerns in public interests reports about use of this tool ( for example Kent County Council: 19015406) and so it is disappointing to see this happening in Surrey.
- While it is open to councils to use the screening tool as a way of triaging referrals, the law requires the Council to complete the DOLS process within the prescribed timescales. It does not allow councils to let cases drift for three years. The DOLS require there to be either an urgent authorisation in force or a standard authorisation for a deprivation of liberty to be lawful. The Council’s failure to act within the prescribed timescales engaged Ms Y’s Article 5 rights. She was being cared for in conditions which amounted to a deprivation of her liberty without the legal protections afforded by the DOLS. The Council was at fault because there was no legal basis in place for Ms Y’s detention in the care home between 2018 and 2021. The detention was unauthorised which meant Ms Y did not get the protections afforded by the DOLS. The protections Ms Y was entitled to included the earlier support of an RPR, who could have challenged the detention in the Court of Protection or asked the Council for a review of the standard authorisation.
Did the fault cause injustice?
- On a balance of probability, I consider:
- Mr X would likely have raised concerns and objections sooner had he been made aware of the lack of a standard authorisation in 2018 and in 2020 when the Council started funding Ms Y’s care.
- The DOLS assessor would have placed the same conditions on the standard authorisation had the DOLS assessments taken place at the correct time and/or in 2020 when the Council started funding care.
- Had the absence of a standard authorisation been correctly noted in January 2020 when the Council became responsible for funding the placement, then consideration would have been given to additional individual care for Ms Y via the social care assessment/care and support plan.
- This additional care would then have reduced or eliminated the need for the lap belt between January 2020 and July 2021 and likely meant the relationship between the care home and Mr Y would have remained on better ground.
- In short, I am satisfied the evidence indicates Ms Y could have received care that was less restrictive between January 2020 and July 2021 had the Council followed due process.
- Our remedies are restorative and not punitive. We do not recommend compensation or assess loss in the same way as the courts.
- Mr X wants the Council to reimburse his legal costs. While we may recommend payment of legal costs in some circumstances, Mr X’s evidence shows those costs were incurred challenging the Clinical Commissioning Group’s decision not to award Ms Y continuing healthcare funding and in seeking legal advice on the merits of a civil claim for false imprisonment and unlawful detention. While it was open to Mr X to seek legal advice on a civil claim, it was not reasonable for him to have incurred those costs nor do I consider those costs directly flowed from the fault I have identified.
- We have also noted the Council’s use of the ADASS screening tool in other cases and made some agreed recommendations to address this in our investigation reference 22014808. I am therefore not making any further recommendations to improve the Council’s DOLS service.
- The Council will, within one month:
- Apologise to Mr X for the avoidable time and trouble caused by pursuing his complaint and for the distress and frustration caused by inaccurate information regarding the standard authorisation.
- Make him a payment of £200 to recognise this
- Make Ms Y a symbolic payment of £1500 to recognise the avoidable distress of being restrained with a lap belt for eighteen months (between January 2020 and July 2021) more frequently than would have been then case had the Council completed the DOLS authorisation within the statutory timescales. This case is exceptional and above the amount we would generally recommend. This is because of the vulnerability of Ms Y, the length of time and the likely effect on Ms Y.
- I have not recommended a payment for the period between August 2018 and December 2019 because Ms Y was a self-funder. So any increase in one-to-one care during this period would have been funded by her and was a matter for Mr X to organise as her attorney for finances.
- The Council should provide us with evidence it has complied with the above actions.
- There was a delay in authorising the use of a lap belt. This was fault causing avoidable distress to Ms Y and avoidable distress and time and trouble to Mr X. The Council has already taken action to minimise the chance of recurrence. It will apologise and make payments set out in this statement.
- I have completed the investigation.
Investigator’s decision on behalf of the Ombudsman
Investigator's decision on behalf of the Ombudsman