Summary: The care provider did not properly assess the late Mr X’s mental capacity or process the application for a Deprivation of Liberty Safeguards authorisation correctly. The care provider continued to take overly restrictive measures to deprive Mr X of his liberty after less restrictive options were suggested. As a result Mr X and his family suffered considerable personal distress and additional costs.

The complaint

1. Mrs A complains about the way the care provider imposed 1:1 care after her father attempted suicide. She says the care provider continued to keep her father in 1:1 care even after the local mental health team suggested less restrictive measures could be employed to keep him safe.

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The Ombudsman’s role and powers

2. Under Part 3A of the Local Government Act, we investigate complaints about adult social care providers and decide whether their actions have caused injustice, or could have caused injustice, to the person complaining. I have used the term fault to describe this. (Local Government Act 1974, sections 34B and 34C)
3. If an adult social care provider’s actions have caused injustice, we may suggest a remedy. (Local Government Act 1974, section 34H(4))

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How I considered this complaint

4. I spoke to Mrs A. I considered all the information provided by the care provider and by Mrs A, as well as by two county councils involved. Mrs A and the care provider had an opportunity to comment on earlier drafts of this statement and I considered their comments before I reached this final decision.
5. 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

Relevant law and guidance – Mental Capacity and Deprivation of Liberty

6. 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.
7. Section 62 of the Act says, “For the avoidance of doubt, it is hereby declared that nothing in this Act is to be taken to affect the law relating to murder or manslaughter or the operation of section 2 of the Suicide Act 1961 (c. 60) (assisting suicide).”
8. 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.

9. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:

• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?

10. A key principle of the Mental Capacity Act 2005 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. Under Principle 5 of the Act, the decision-maker must consider if there is a less restrictive choice available that can achieve the same outcome.
11. The Deprivation of Liberty Safeguards 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 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 or hospital to apply for authorisation.
12. Under the Human Rights Act 1998, the duty to act in accordance with the ECHR applies only to public authorities. However, all states that have signed up to the ECHR are obliged to make sure that the rights set out in the ECHR apply to all of their citizens. The Mental Capacity Act 2005 therefore makes it clear that the deprivation of liberty safeguards apply to both publicly and privately arranged care or treatment.
13. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
14. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.
15. ADASS (the association of directors of social services) has produced a guide to DoLS for care providers. The guide clarifies the DoLS assessment process. It says:

“The authorisation process involves two assessors visiting and interviewing the person who is being deprived of liberty. One is a doctor, and they visit to make sure that the person has a diagnosis which allows the DoLS to be used (this means that they have what is described as a mental disorder) and they have checked that the use of DoLS is the correct legal route.

The second person is called a ‘Best Interests Assessor’ and they will visit to make certain that the person does not have mental capacity to make their own decision about where they get their care or treatment and also to check that being in the care home or hospital is in their best interests and that care and/or treatment can’t be done in a less restrictive way.

16. The DoLS Code of Practice says of the role of the Best Interests Assessor, “It is essential that the best interests assessor provides an independent and objective view of whether or not there is a genuine justification for deprivation of liberty, taking account of all the relevant views and factors.”
17. The Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 set out the fundamental standards that registered care providers must achieve. The Care Quality Commission (CQC) has guidance on how to meet the fundamental standards. Regulation 13 says “Providers must act at all times in accordance with the Mental Capacity Act 2005 Deprivation of Liberty Safeguards: Code of Practice and the Mental Capacity Act 2005 Code of Practice”.

Continuing Healthcare funding

18. NHS CHC is a package of ongoing care arranged and funded solely by the NHS where the individual has been found to have a ‘primary health need’ as set out in the National Framework for NHS Continuing Healthcare and NHS-Funded Nursing Care.

The care provider’s policy

The care provider has a “suicide and self-harm policy”. The policy says where someone has attempted suicide, the responsibility of the registered manager is to “Ensure adequate staffing is in place to reduce risk to the individual and staff, this can include the provision of 1-1 care.”

What happened

19. Mr and Mrs X went to live in the care home in August 2020. The care home is in a rural setting but leads onto a busy road without pedestrian facilities. The care provider says the road is “too dangerous to be negotiated by anyone on foot, with or without capacity”. The care provider says, “Individuals who have capacity and have made the decision to stay in our home are asked to sign a consent to care and treatment form. The reasons for this are explained; that we can evidence to our regulators that individuals are residing behind our locked doors of their own free will, that if they choose to leave they will allow us the time to ensure that there are arrangements in place for them to leave our home by a safe means and that they are travelling to a destination that is prepared to receive them.”
20. Mr and Mrs X (who had neighbouring rooms) signed the ‘consent’ form on their admission.
21. The contract for Mr and Mrs X’s care says “There may be an increase or decrease in the placement fee and/or additional fees as appropriate if there are substantial changes to the service provided.” It says there should be written notice of any changes prior to the billing period to which it relates, except where there is a reassessment of the resident’s needs.
22. Mrs A says her parents, who moved into the care home from a previous care home because of the quiet rural position and the support for Mr X to be able to smoke in the garden, thought they were moving into a purely residential part of the care home. She said they did not realise they were placed in an early dementia unit. She says the unit’s sign read “Residential and Dementia Care”.
23. Mr X was ill and in pain when he moved into the care home. Mrs A says she did not know that at the time of his admission to the care home, he also had an informal diagnosis of vascular dementia based on a previous hospital admission.
24. The care home records for 3 December 2020 state that Mr X had dressed himself and gone to the lounge at 04.30 asking staff to let him outside for a cigarette. He declined company as he said he was "not a child”. At 04.50 a member of staff had gone to check and found Mr X attempting suicide with the bell cord from his room. Three members of staff assisted him back inside. Mr X said he had planned the attempt for months. The care provider put 1:1 care in place immediately.
25. The care home records show the manager called Mrs A that morning. The care provider also spoke to the memory service and a community psychiatric nurse (CPN) visited Mr X on 4 December. She said Mr X needed antidepressants and stronger pain relief as he was in a lot of pain and very low in mood. She said all hazards should be removed from his room as the 1:1 care could not continue forever. She visited again on 7 December and agreed the 1:1 care should continue for now: that was reiterated by the psychiatrist who saw Mr X on 11 December. Mr X said he would make further attempts on his own life.
26. The CPN’s notes for 14 December recorded she would talk to the care home manager about the funding for the 1:1 care and complete the necessary CHC checklist. Care home staff removed all belts and shoelaces from Mr X’s room, however Mrs A says not all hazards were removed from his room until July 2021, by which time he was too frail to move around alone.

The MCA assessment and DoLS authorisation

27. The care provider’s records show the care provider implemented an urgent (7 day) DoLS authorisation on 10 December 2020 and submitted a standard DoLS application to the county council where Mr X had previously lived (county council 1). The care provider says the mental capacity assessment was undertaken by the then care home manager who was an experienced mental health nurse (although in fact the assessment is signed by the business development manager). The assessment answers ‘yes’ to the statements –

The person is able to understand the information relevant to the decision;

The person is able to use or assess the information as part of the process of decision making;

The person is able to retain the information long enough to make a decision.

The person is able to communicate their decision.

28. The assessor added supplementary notes to explain his view that Mr X was able to demonstrate tolerance of his 1:1 carer but the tolerance was “likely to be withdrawn” when suicidal ideation occurred. The assessor concluded therefore that Mr X lacked capacity to make the decision to have 1:1 care to mitigate the risk of suicide attempts.
29. The assessor also completed a Best Interests Decision form saying it was in Mr X’s best interests to maintain 1:1 carer support to intervene if there was a further suicide attempt that might indicate “temporary loss of capacity”. The completed form responds “no” to the question, “in making this decision have you involved the service user as much as possible”.
30. County council 1’s records show an officer spoke to the care home staff about the application. The officer said he had to check with the county council where the home was based (county council 2) as it was possible Mr X was ‘ordinarily resident’ there because of being a permanent resident in the care home. The care home staff told him they also needed to check whether CHC funding would be available to cover the costs of the 1:1 care.
31. County council 1 emailed the DoLS application to county council 2 on 14 December 2020. County council 1’s records show that on 21 December an officer from county council 2 told the referring officer she had taken the referral and contacted the care home, but was told by staff there that Mr X had regained capacity so there was no need for further action:

“Deprivation of Liberty (MCA): DoLS - Confirmed with (County Council 2) - case taken and capacity

Contact date: 21/12/2020 at 11:38

Telephone call to ….DoLS team, spoke with (an officer) who informed me that they took the case, contacted managing authority and were subsequently informed that (Mr X) has regained capacity, NFA.”

32. County council 2 confirmed to me that no DoLS authorisation was approved.
33. The care provider says it received neither approval nor refusal of the application to county council 1. It says “it is our experience that not all applications to authorise a deprivation of liberty are processed promptly or acknowledged by the supervising authorities.” It also says in the past it has been advised not to duplicate applications or enquire about progress.

The 1:1 care and funding discussions

34. On 31 December 2020 the care provider wrote to Mrs A explaining that the cost of the 1:1 care would be an additional £2520 a week.
35. On 6 January 2021 Mrs A contacted county council 2 with concerns about the cost of the 1:1 care and the depletion in her father’s savings. The care provider’s record of the CPN’s visit that day note she had discussed the cost of the care with Mrs A: she said Mrs A “would prefer (Mr X) to stay on his 1:1 and be safe”.
36. In February 2021 the CPN told the care provider the application for CHC funding had been declined because Mr X’s dependency was very low. A social worker from county council 2 contacted the care provider to gather more information about the 1:1 funding as Mrs A had concerns about her father’s finances. The social worker said she would speak to the care home manager then “come up with a care plan as she cannot see the 1:1 remaining as the family cannot afford it”. The social worker said she would probably look at 15-minute observations rather than a carer with Mr X 24 hours a day. The social worker said Mr X “did not meet the needs of a 1:1”.
37. Mrs A emailed the home manager in February as she says she was struggling to contact him by telephone. She asked about the continued 1:1 care as the CPN had told her Mr X did not need it now he had different medication. He responded, “We have also requested further CPN involvement, and I am currently waiting for a detailed and evidence-based response from (her). The 1-1 being in place is not financially motivated, I did this to save your dad’s life. Are you considering the possibility of withdrawing the 1-1?”
38. The CPN undertook a review of Mr X’s needs in March 2021. She told the senior carer that in her professional opinion Mr X did not need 1:1 during the night and she could not justify it. She said however it was up to the care home manager whether the 1:1 continued as by now Mr X was dependent on it.
39. Mrs A says her father did not know the cost of the 1:1 care until a visit from his CPN in March 2021. She says he was extremely distressed as a result. She says, “On 23 March Dad told me later with the CPN present, "I thought they were being kind and part of the service". This realisation made dad very upset. By now, dependency had been established.” The records of his subsequent conversations with the CPN note Mr X’s concerns about his “money problems”. Mrs A challenged the way in which the care provider had imposed the 1:1 care costs but says the manager emailed her threatening to terminate the contract immediately. She says he told her if her father took his own life, it would be the care provider held responsible, not her. The care provider now cannot trace the emails in question and says a number of emails were cleared following the death of the then manager.
40. The care provider has provided the handwritten notes of a meeting on 13 April (taken by the senior carer present) attended by the senior carer, the consultant psychiatrist, the CPN and a social worker as well as Mr X’s daughters. The notes record the concerns stated by Mr X’s daughter that her father was “existing, not living”. The CPN said she had advised the home on options to minimise the risk of leaving Mr X on his own overnight with door alarms and sensor mats in place. The social worker commented on the “oppression” of 24 hour 1:1 care. She said someone living in the community would not have 1:1 care. She asked how it would be reduced on a mental health ward: the psychiatrist responded that on a ward they would need to see an improvement, which they had not seen with Mr X. The psychiatrist said they needed to look at safely reducing the level of care. The home’s senior carer said in her opinion it was unsafe to leave Mr X at night. She added that (“Mr X) relies on the 1:1 for all aspects of his care.”. The outcome of the meeting was for “(The psychiatrist) … to visit… to look at medication changes; 1-1 to remain, may look at psychologist support”.
41. In April 2021 officers from the care home met (online) with Mr X’s psychiatrist, the CPN and Mrs A to discuss the funding. The notes from the care home state “(Mr X) has full recall and intent and we are not willing to reduce (Mr X’s) 1:1 at the moment due to the risks involved”. There were discussions about using sensor mats during the night to replace the 1:1 care: the care home representative said they would have to be tamper-proof, or Mr X would work out how to disable them. The care home’s notes record, “we would have to see a considerable improvement in (Mr X’s) mental health before the 1:1 care could be removed and we may not continue to carry on with the placement if the 1:1 care was removed.”
42. The outcome of the meeting was for a further CHC funding application to be initiated. This was started on 24 May 2021 but the social worker’s notes record “(Mr X) has to be at his optimum before any decision can be made”.
43. A multi-disciplinary meeting was held in July 2021 to discuss the ongoing situation in respect of 1:1 care. Mr X’s psychiatrist and CPN were present as well as the social worker, Mr X’s daughters and care staff from the care home. The psychiatrist wrote afterwards to Mr X’s GP. He said, “We then discussed the sensors which we were planning on trialling in (Mr X)’s room. I understand this was discussed with management at Barrowhill who did not feel this could be pursued.” Care staff were concerned they might interrupt his sleep: they added that Mr X “was also trying to find out how they work when the idea was proposed to him, and they are concerned that he is trying to find ways to out-wit the system.”
44. The letter continued with comments about the funding going forward. There was sufficient money left to fund 4 months of 1:1 care. There were some concerns that the care home would only agree to keep Mr X as long as he had 1:1 care even if his mental health improved. The letter went on, “when social care become involved they will need to assess his needs with the support of the mental health team and Barrowhill and establish whether they can be met by Barrowhill or (Mr X) will need to be moved. We wondered whether (Mr X) was aware of the potential for this when his money runs out and it is not clear that he is.”
45. Mrs X died in August 2021. By then Mr X had lost a considerable amount of weight. He became ill but declined any further investigation. He died in September 2021 shortly after being placed on end-of-life care. The 1:1 care remained in place until Mr X’s death.

The complaint and the care provider’s response

46. Mrs A wrote to the care provider in January 2022 with her concerns about the management of her parents’ care. She said despite finding her father with a ligature round his neck (she says she was told by the manager her father was “blue when they found him”) the care staff had not called emergency services. She said the 1:1 care had been put in place at Mr X’s expense without his “agreement, involvement, or permission”. She said the multi-disciplinary team meetings in 2021 noted that the 1:1 care had created a dependency. She said the care provider would not agree to step down the care to 15-minute observations or the use of sensor mats as the mental health team and the social worker had suggested. She complained that despite her father’s very poor health in the summer of 2021 no change was made to his care.
47. Mrs A wrote again in February 2022 with a formal complaint reiterating the complaints she had made in her January letter.
48. There were changes of care home manager over the next few months. A new manager met Mrs A and her sister but there was no written response to the complaint.
49. Mrs A complained to the Ombudsman. She said the care provider should admit accountability and take responsibility for the “questionable & unsustainable decision made to avoid their risk” which she said had caused emotional and psychological dependency on the 1-1 additional service that cost her father £108,000 of his savings.
50. The care provider operations director says Mrs A has misrepresented the contractual position. He says “The Contract (as most do) provides a remedy to the Sponsor/Resident in that they can serve notice to terminate the Contract if they do not agree with that process. We note this remedy was not exercised by (Mrs A).”
51. In respect of the suicide attempt, the operations director says “When there is a threat to a person’s life, …. we have an urgent responsibility to ensure the immediate safety of the individual in our care. We quote directly from the NHS where additional paid support is required (note even prejudicial behaviour which is an even higher bar) “care providers should be reminded of their registered care provider duty to meet the needs of the person., based on what they have identified as being required, so as not to delay what they deem is necessary to meet the person’s needs”. It says the only injury to Mr X was the redness caused by the ligature round his neck and there was no need to call emergency services to attend.
52. The operations director says the care provider also had a duty of care to protect its staff and other residents from witnessing a further suicide attempt.
53. The operations director says Mr X was able to respond “coherently” to the questions he was asked for the mental capacity assessment: “he was able to understand why the one-to-one carer was assigned to him, could retain that information and weigh that information.” He adds “It is not a criminal offence to take one’s own life but it is our understanding that it is a criminal offence to assist or facilitate a person to commit suicide and that if the conditions to facilitate that were created, by action or omission, then a court of law may construe that we may have assisted the person to take their own life.”
54. Finally, the operations director says it is reasonable to assume that a person who attempts to take their own life is “in a poor state of mind. The alternative, to assume that he retained capacity to pursue that action, is unconscionable.”
55. The care provider’s legal director points out that the Mental Capacity Act excludes assisting suicide. He quotes section 62 which says, “Unlawful killing or assisting suicide (section 62) For the avoidance of doubt, nothing in the Act is to be taken to affect the law relating to murder, manslaughter or assisting suicide”. He goes on, “assistance in this regard can be by way of direct action or omission which the above circumstances would clearly engage given the facts and the comments made regarding future suicide attempts.”
56. The legal director says during any period where Mr X had suicidal ideation he “also probably lacked capacity”. He says for that reason it was necessary to put in place the DoLS for the 1:1 care, a decision which he says was taken in Mr X’s best interest, during those periods.
57. In respect of the recommendations by the CPN and social worker to reduce the 24-hour 1:1 care (to provide a less restrictive option), the care provider says this was at the discretion of the then manager.
58. Mrs A says she did not know the cost of the 1:1 care until January 2021 when she received the letter from the care provider. She says she became concerned about her father’s growing dependence on the 1:1 care; about the care provider’s unwillingness to consider lesser restrictions; and about the considerable cost which she learned from her discussions with the social worker would not be borne by the council when her father’s savings ran out. She also says the 1:1 carer often carried out some of the usual care processes and she questioned why they were paying twice for the same care.
59. Mrs A says when she tried to raise the matter with the care home manager by email, she was threatened with her father’s eviction because of the risk to the care provider if her father was successful in taking his own life. She said her father was ill, had already moved from another placement, and did not want to leave the care home.

Analysis

60. The care provider appropriately contacted mental health services when Mr X attempted to take his own life; it implemented its own suicide and self-harm policy and contacted Mr X’s family.
61. The care provider undertook a capacity assessment and now acknowledges it did not process correctly the information it gained during that assessment. Mr X’s responses to the key questions in the Code of Practice (as described in paragraph 8 above) would have led to a decision he had capacity, but the care provider added an interpretation of its own: that at the moments when he had suicidal ideation he “probably” lacked capacity. It is unclear to me how the care provider could have reached the conclusion that was a time-specific decision.
62. The care provider describes as “unconscionable” the view that Mr X retained capacity to take his own life but the Act warns against treating someone as lacking capacity to make a decision because the decision is unwise. The care provider acknowledges it is not an offence to take one’s own life.
63. In consequence of its decision about Mr X’s capacity the care provider initiated an urgent DOLS authorisation and forwarded a DoLS application form to the county council. The application was never approved. The records from county council 2 say an officer had contacted the care home when she received the application form in December 2020 but was told Mr X had regained capacity. The care home records do not record that conversation. Effectively therefore Mr X was under 1:1 supervision for 9 months without a DoLS approval in place. He remained under 1:1 supervision to avoid the risk of a suicide attempt even when he was receiving end-of-life care. The care provider says that was still considered appropriate as there had not been a reversal of the decision of the multi-disciplinary April meeting that 1:1 care should remain.
64. The absence of a DoLS approval also meant there was a lost opportunity to put in place any conditions (the “safeguards” inherent in the name of the authorisation) which might have made a difference to the way the care was provided. The confusion over the application had the additional consequence that there was no input at the appropriate time from an independent Best Interests Assessor who could, as the Code of Practice says, give an “independent and objective view of whether or not there is a genuine justification for deprivation of liberty”.
65. In February 2021 the social worker from county council 2 told the care provider there was no need for 24-hour 1:1 care: the CPN reiterated that view in March 2021. The care provider was unwilling to implement the options recommended. In terms of Principle 5 of the Mental Capacity Act, the care provider did not consider whether there was a less restrictive alternative for Mr X which might achieve the same outcome.
66. The care provider points out that at a meeting in April 2021 the psychiatrist expressed the view that Mr X’s condition had not shown enough improvement to reduce the level of care: the care provider says as that opinion post-dates the other advice it carries more weight. That argument fails to address why the care provider did not act on the earlier opinions expressed by the CPN and the social worker to look at less restrictive options, as it had a duty to do.
67. The care provider points to a contractual remedy available to Mrs A and says she could have exercised that remedy, terminated the contract and moved her father if she disagreed with the care put in place. Mrs A says her father had become dependent on the 1:1 care, was ill, had already recently moved from another care home, and did not want to move again. Mrs X was of course also resident in the home. The care provider says those factors are irrelevant to the contract: but they are, in my view, relevant to the complaint made by Mrs A. The assertion by the care provider, in its response to an earlier draft of this statement, that s.26(6) of the Local Government Act prevents the Ombudsman from investigating this point as Mrs A had an alternative remedy available to her by means of proceedings in court is incorrect: that restriction does not apply under Part 3A of the Act.
68. The injustice suffered by Mr X by the failings of the care provider was that he was under constant supervision for the last 9 months of his life, even at the point where he was on end-of-life care, despite a flawed capacity assessment and without any safeguards in place. The injustice suffered by his family was the knowledge their father was under constant supervision, without consideration of the less restrictive options available, and at considerable personal expense.

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Recommended action

69. Within one month of my final decision the care provider agrees to review staff training in the Mental Capacity Act and update me on the outcome of the review and any additional training.
70. Within one month of my final decision the care provider should also review its approach to the DoLS applications it submits and consider how it might track their progress with the relevant council.
71. Mr X has died and the injustice to him cannot now be remedied. However, his family have suffered distress in consequence of the care provider’s actions, as well as financial losses because his estate was depleted as a result of the additional costs incurred.
72. Within one month of my final decision the care provider should make a payment of £1000 to Mrs A in recognition of the distress and uncertainty the family suffered as a result of its actions.
73. The cost of the 1:1 care to Mr X was £108,000. Within one month of my final decision the care provider should consider what the costs to Mr X would have been if it had accepted the recommendations of the professional staff to reduce the level of care by March 2021, and make a payment to the estate (or its beneficiaries if the estate has been distributed) of the difference between the two figures.
74. The Care Provider should provide us with evidence it has complied with the above actions.

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Final decision

75. I have completed this investigation. I find that the actions of the care provider caused injustice to Mr X and his family which completion of the recommendations at paragraphs 69 – 73 will remedy.

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Investigator's decision on behalf of the Ombudsman