Summary: Ms X complained the Council failed to act in her husband, Mr Y’s, best interest when it obtained a deprivation of liberty authorisation to keep him at the Care Home which had previously found to have been providing him with poor care. There was no fault in how the Council made decisions about Mr Y’s care placement. However, the Council failed to ensure the Care Home implemented the protection plans it identified as necessary during a safeguarding enquiry. This did not cause Mr Y or Ms X an injustice. The Council agreed to ensure protection plans are appropriately monitored.

The complaint

1. Ms X complained the Council failed to act in her husband, Mr Y’s best interest when it obtained a deprivation of liberty authorisation to keep him at the Care Home which had previously found to have been providing him with poor care. Ms X said the Council failed to:
• consider if Mr Y was objecting to his placement at the Care Home;
• promote Mr Y’s wellbeing when it left him in the Care Home rated as requiring improvement; and
• consider Ms X’s representations when it made decisions for Mr Y.
2. Ms X stated this was not in line with Mr Y’s human rights and caused them both distress.

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The Ombudsman’s role and powers

3. 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. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. 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)

5. We cannot question whether an organisation’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)
6. We may investigate a complaint on behalf of someone who has died or who cannot authorise someone to act for them. The complaint may be made by:
• their personal representative (if they have one), or
• someone we consider to be suitable. (Local Government Act 1974, section 26A(2), as amended)
7. 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)

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How I considered this complaint

8. I read the documents provided by Ms X and discussed the matter with her on the telephone.
9. I considered the documents provided by the Council in response to my enquiries.
10. Ms X and the Council 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

Safeguarding

11. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean they cannot protect themself. 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. (section 42, Care Act 2014)
12. The Care and support statutory guidance sets out what should happen when a safeguarding concern is raised.
13. Where abuse or neglect is carried out by employees or in a regulated setting, like a care home, the first responsibility to act is with the care home. The care home should protect the adult from harm as soon as possible and inform the council and the Care Quality Commission (CQC).
14. The council should satisfy itself that a care home’s response has been sufficient to deal with the safeguarding issue and, if not, to undertake any enquiry of its own and any appropriate follow up action such as reporting the matter to the CQC.
15. Once the enquiry is complete the council must determine what further action is necessary. Where it determines that it should itself take further action (for example, a protection plan), then the council would be under a duty to do so.

Mental Capacity

16. 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.
17. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:

• because they make 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.

18. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision. An assessment of someone’s capacity is specific to the decision to be made at a particular time.
19. An independent mental capacity advocate (IMCA) can act for someone who does not have capacity to make their own decisions. The IMCA’s role is to support and represent the person in the decision-making process and make sure the process is in line with the Act.

Best interest decision making

20. A key principle of the Mental Capacity Act 2005 is that any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker must also consider if there is a less restrictive choice available that can achieve the same outcome.

Deprivation of Liberty Safeguards (DoLS)

21. The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home, hospital or supported living accommodation. 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 Government issued a DoLS Code of Practice in 2008 as statutory guidance on how they should be applied in practice.
22. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme. The ‘managing authority’ of the care home must request authorisation from the ‘supervisory body’ (the council). The council must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. There must be a request and an authorisation before a person is lawfully deprived of their liberty.
23. A relevant persons paid representative (RPPR) can support someone who has been deprived of their liberty. Their role is to assist that person to exercise their rights. The RPPR can ask for a review of a DoLS authorisation or challenge the authorisation if necessary.

What happened

24. In 2019, Mr Y became unwell and was admitted to hospital. He had a severe brain injury and was not able to speak other than to say yes or no. Occasionally he could communicate by blinking or gesturing with a hand. Mr Y’s first language was not English. Mr Y was also unable to move by himself or swallow and was fed through a tube in his stomach. Mr Y needed 24-hour nursing care to meet his complex needs.
25. When Mr Y was well enough, he was discharged from hospital to The Care Home. The Council stated at the time of discharge, it offered Ms X the choice of two care home placements in the area she requested. Ms X chose the Care Home for Mr Y.
26. The Council completed a DoLS assessment with Mr Y at the Care Home in December 2019. Ms X was Mr Y’s representative and was involved in the assessment. The Council decided Mr Y did not have the capacity to consent to stay in the Care Home for his care and treatment. It decided staying at the Care Home would be in his best interest.
27. The Council authorised Mr Y’s deprivation of liberty at the Care Home in February 2020 until December 2020. Ms X agreed Mr Y should stay at the Care Home. At that time, the Care Home had a CQC rating of ‘good’ with ‘requires improvement’ in some areas.
28. Ms X had a representative for her own needs, Mr G. Mr G was Ms X’s carer. He met Ms X and Mr Y after Mr Y was discharged to the Care Home.
29. Mr Y had been admitted to hospital due to an illness in September 2020. Mr G contacted the Council and said Mr Y’s illness was caused by the poor care he received at the Care Home.
30. The Council made safeguarding enquiries and concluded Mr Y’s illness was due to his health conditions and not due to poor care. It closed the enquiries and recommended a placement review to discuss the concerns Mr G had with the Care Home.
31. Ms X and Mr G raised a safeguarding concern for Mr Y in November 2020. Mr G complained the previous safeguarding concern should not have been closed and the Care Home was neglecting Mr Y’s care needs. Ms X said Mr Y had told her a few months previously, a male care worker had beaten him up at the Care Home. Ms X and Mr G said Mr Y had told them this by answering their questions using eyebrow movements.
32. The Council told the Care Home to ensure male carers did not work alone and to inform the police of the allegations.
33. The Council began a safeguarding investigation. It spoke to Mr Y using an independent interpreter and verbal and non-verbal communication. Mr Y said he had been assaulted in the past. He told the Council he wanted Ms X to be involved in his care. In two conversations with the Council, Mr Y said he wanted to stay at the Care Home, and move to a different Care Home. Ms X told the Council if there was a better care home available, she would like Mr Y to move.
34. The Council began an assessment to consider Mr Y’s care. Mr G contributed on Ms X’s behalf. The Social Worker completing the assessment was concerned about the influence Mr G had on Ms X and began a fresh assessment in December 2020.
35. The Council decided it would wait for the outcome of the safeguarding enquiry before it began considering other options for Mr Y’s care.
36. The Council completed its safeguarding enquiry. It informed the Care Quality Commission (CQC) and the police about the allegations. The Council found the specific allegations raised about Mr Y’s care by Ms X and Mr G were unsubstantiated. It said the allegation of physical abuse was inconclusive and there was insufficient information to identify any male carer.
37. During its enquiry, the Council found that Mr Y’s care was occasionally neglectful. It said there was gaps in record keeping in relation to his personal care, continence care, oral care and repositioning to prevent bed sores. The Council wrote a protection plan for the Care Home to improve standards for Mr Y and for other residents. It said the Care Home should ensure its record keeping was detailed, factual, correct and up to date. It should also ensure electronic records detailed the names of care workers, including agency staff.
38. The investigating officer raised their concerns about Mr G’s involvement in the safeguarding process. It recognised that while he had written consent to act on Ms X’s behalf, he did not have consent to act on Mr Y’s behalf.
39. Around the same time, the Care Home raised its concerns about Mr G’s involvement in Mr Y’s case. It said Mr G was recording Mr Y’s video calls and providing Mr Y incorrect information.
40. Ms X contacted the Council again later in December 2021 and told it she wanted Mr Y to be moved to another care home. She said that Mr Y had told her he had been assaulted again. The Council began a further safeguarding enquiry and reviewed Mr Y’s placement. It held a meeting with Ms X and Mr Y who was supported by an independent interpreter. As a result of the conversations held in the meeting, the Council decided Mr Y needed an independent advocate to support him with a mental capacity assessment about his placement at the Care Home.
41. The Council held a meeting with Ms X a week later. Ms X was supported by a friend as her representative. The Council provided the outcome of its safeguarding investigation. It stated it would introduce a protection plan in Mr Y’s best interests. The protection plan included that the Care Home would:
• ensure care plans were up to date and in line with medical recommendations;
• undertake all care tasks in the care plan in a gentle and reassuring manner;
• ensure electronic records were used by all staff and included care workers names; and
• report any evidence of abuse to relevant services including the police.
42. At the meeting, the Care Home Manager stated they had possibly identified the alleged perpetrator of abuse who was a member of agency staff and no longer worked at the Care Home. The Council asked the Manager to report it to the police. The Council decided further investigation into that matter was needed.
43. In December 2020 the Care Home requested a further DoLS authorisation for Mr Y.
44. The Council completed a further capacity assessment for Mr Y. It considered Ms X’s request to move Mr Y. It found that while Mr Y seemed to have a preference to be at home with his wife, he did not have the capacity to make a decision about his care and support needs.
45. In January 2021 the Council reviewed Mr Y’s capacity and the best interest decision. The best interest assessor recorded it was aware of the safeguarding alerts in relation to Mr Y. The assessor stated Mr Y needed a paid representative to work with him as Ms X no longer met the criteria to represent him. It confirmed Mr Y did not have capacity to consent to stay in the Care Home and it remained in his best interest to do so. In February 2021 the Council authorised the DoLS for Mr Y until December 2021.
46. The Council told the Care Home again to ensure the electronic records included the full names of care staff within a week in March 2021. It stated it had stipulated this matter a year previously in a protection plan for a different resident and it had not been implemented.
47. The Council contacted Ms X and told her the allegation of physical assault was inconclusive because:
• there was insufficient evidence to identify the alleged care worker;
• the Care Home Manager withheld information from the Council and the police; and
• there was no evidence of harm to Mr Y.
48. It told Ms X that it would hold an outcomes meeting. It said Mr G could not attend as he was not involved with Mr Y’s case.
49. In March 2021 Ms X complained to the Council. She said the Council was victimising her by not allowing Mr G to attend the meeting and she wished to raise an official complaint. She stated the meeting must not go ahead without her and Mr G.
50. The Council wrote to Ms X and said it would complete a review of Mr Y’s placement and his capacity and hold a best interests meeting. It said it would also involve an independent mental capacity advocate and an interpreter for Mr Y.
51. In March 2021 Mr Y was provided with a relevant person’s paid representative (RPPR). The RPPR also acted as Mr Y’s independent mental capacity advocate (IMCA). They visited Mr Y with an interpreter. They said they were satisfied the placement was in Mr Y’s best interest and the least restrictive option to meet his needs.
52. In April 2021 Mr Y was admitted to hospital due to an illness. Ms X contacted the Council and asked it not to discharge Mr Y back to the Care Home.
53. The Council reviewed Mr Y’s placement. It recorded the RPPR views on Mr Y’s placement and that Ms X wanted Mr Y to move to a different care home. It recorded that a nursing home placement was needed to meet Mr Y’s needs.
54. In May 2021 the RPPR visited Mr Y again. They requested the Council reviewed Mr Y’s placement at the Care Home. They asked the Council to look at alternative placements that would be more suitable to meet Mr Y’s needs.
55. The Council identified a new care home and made arrangements for Mr Y to move in June 2021. However, the new care home cancelled the move with short notice.
56. In June 2021, Ms X raised a safeguarding concern with the Council. She said Mr Y had a bruised face and a scratched hand which he said had been done by staff. The Council investigated the concern and found no evidence of physical abuse. It informed Ms X it would not take any further action.
57. The Council held a meeting with Ms X, and the RPPR to discuss Mr Y’s placement and potential options. The Council offered Ms X an advocate to act on her behalf. Ms X declined this and was supported by a friend.
58. The Council held the outcome meeting for the allegation of assault that was raised in November 2020 in June 2021. It also included the further allegation of assault that was raised in December 2020. It stated the allegation of physical abuse by a care worker was inconclusive and the allegations of neglect were unsubstantiated.
59. The outcome meeting minutes recorded the original protection plan would remain with two additional actions. The Care Home would:
• ensure it relayed vital information to social services and the police; and
• complete a referral to the Disclosure and Barring Service, and the Nursing and Midwifery Council for the Care Home Manager involved in the original safeguarding enquiry.
60. In July 2021 Mr Y moved to a different care home and the records show the DoLS authorisation for him at the Care Home stopped.
61. Ms X complained to the Council in September 2021. She said the Council had failed to:
• promote Mr Y’s wellbeing;
• make decisions in his best interests; and
• take her views into account when making decisions for Mr Y.
62. The Council responded to Ms X and said it did not uphold any element of Ms X’s complaint.
63. Dissatisfied with the Council’s response, Ms X complained to us in December 2021.
64. In response to my draft decision the Council confirmed it no longer places residents at the Care Home and moved all remaining residents it was responsible for to alternative providers. It also confirmed it had not received any further safeguarding referrals in relation to the Care Home.

My findings

Did the Council fail to consider if Mr Y was objecting to his placement at the Care Home?

65. The Council appointed a relevant person’s paid representative and independent mental capacity advocate to consider Mr Y’s needs. The Council used independent interpreters to speak with Mr Y to establish his capacity and opinions on his care. When the RPPR expressed concerns about the suitability of his placement the Council took steps immediately to identify a new placement and move Mr Y. There was no fault in how the Council considered Mr Y’s opinions.

Did the Council fail to promote Mr Y’s wellbeing?

66. The Council reassessed Mr Y’s placement at the Care Home whenever concerns were raised by Ms X or Mr G. It completed the best interest decisions and DoLS arrangements in line with the legislation, considered the Care home’s CQC rating and decided the placement was appropriate for Mr Y. There is nothing to say that because the Care Home required improvement in some areas, it was not an appropriate setting for Mr Y.
67. The Council completed appropriate safeguarding enquiries following Ms X’s concerns and did not find any evidence of harm to Mr Y.
68. The Council identified the Care Home was neglectful in some areas of Mr Y’s care. The Council wrote a protection plan for the Care Home to implement and improve care for Mr Y and other residents. There was no evidence Mr Y was caused any injustice as a result of the poor care identified by the Council.
69. Based on the evidence seen so far there is no evidence the Council robustly monitored and reviewed the protection plan and the Care Home’s implementations of the recommendations. This was particularly important given the Council had already identified the Care Home had not implemented previous protection plan recommendations and withheld information from the Council and police on a safeguarding matter. That was fault. I have not completed an audit style enquiry in this investigation however there is no evidence that Mr Y suffered an injustice as a result of that fault.
70. The Council has confirmed it no longer uses this provider which is sufficient to ensure there will not be a recurrence of the fault.

Did the Council fail to consider Ms X’s representations when it made decisions for Mr Y?

71. The Council considered Ms X’s representations about Mr Y’s care and recorded her input when making best interest decisions about Mr Y’s care. The Council conducted appropriate safeguarding enquiries when Ms X raised concerns about Mr Y’s care.
72. The Council decided Mr G could not attend meetings in relation to Mr Y’s care, as Mr Y had not consented to Mr G acting on his behalf. In recognition that Ms X may need her own representative, the Council allowed Ms X’s friend to attend the meetings with her. The Council also arranged independent interpreters for Ms X and offered her an advocate. There was no fault in how the Council considered Ms X representations.

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Agreed action

73. Within one month the Council agreed to remind relevant staff to monitor the implementation of protection plans as a result of safeguarding investigations. The Council said it would monitor the implementation of protection plans through a monthly audit of sample case records.
74. The Council should provide us with evidence it has done so, including one month of audit records.

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Final decision

75. I have completed my investigation. I found fault however I do not find that fault caused an injustice. The Council agreed to my recommendation for service improvement.

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Investigator's decision on behalf of the Ombudsman