Summary: There was fault by the Council which failed to consult Mr X about his late mother’s care. This caused avoidable distress. The Council needs to apologise and remind staff of the relevant sections in the Code of Practice to the Mental Capacity Act which set out the people that need to be consulted.

The complaint

1. Mr X complained the Council:
1. Did not keep him updated about his late mother Mrs Y
2. Did not tell them Mrs Y was a permanent resident of a care home, but did tell the landlord
3. Did not take into account Mrs Y’s wishes
4. Said they had visited Mrs Y when they had not
5. Continued with a placement in the care home after the family raised concerns about mistreatment.
2. Mr X said this caused avoidable distress.

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The Ombudsman’s role and powers

3. 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)
4. South West Advocacy Network (SWAN) provides an advocacy service for the Council to fulfil the Council’s responsibilities in the Mental Capacity Act, including providing RPRs (see paragraph 12(d)). We can investigate SWAN.
5. 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)
6. 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

7. I considered the Council’s response to the complaint and case records described in this statement. I discussed the complaint with Mr X.
8. Mr 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

Law and guidance

9. Decisions taken for a person lacking mental capacity must be in their best interests. The Mental Capacity Act and the Code of Practice (the Code) provide a checklist of factors decision-makers must work through when deciding what is in a person’s best interests.
10. The Code says:
• The views of other people who are close the person who lacks capacity should be considered (Paragraph 5.13)
• Anyone interested in the person’s welfare (for example, close relatives) should be consulted (Paragraph 5.49)
• Decision makers must show they have thought carefully about who to speak to. They must be able to explain why they did not speak to a particular person – it is good practice to have a clear record of their reasons (Paragraph 5.51)
11. 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.
12. The DOLS say:
1. 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)
2. 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)
3. 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)
4. 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. (Paragraphs 57 and 185)

13. If a council has reasonable cause to suspect abuse of an adult who needs care and support, it must make whatever enquiries it thinks is necessary to decide whether any action should be taken to protect the adult. (Care Act 2014, section 42.)

What happened

14. Mrs Y had dementia. A social worker completed two assessments of her mental capacity to make decisions about her care in April and July 2022. The social worker’s record of the assessments said they visited Mrs Y at her care home on both occasions.
15. Mrs Y moved to a new care home in January 2023. There was a standard authorisation in place at the previous care home. The Council received a request for a standard authorisation to deprive Mrs Y of her liberty.
16. A best interests assessor (BIA) visited Mrs X in January 2023 to complete an assessment (known as a Form 3) which listed the people the BIA had consulted, including Ms Z who was one of Mrs Y’s children. The Form 3 summarised what Mrs Y said to the BIA during the visit including:
• She did not like to sleep in her bed or be locked away. She wanted to go home; she had done nothing wrong
• She had four sons and a daughter.
17. The Form 3 set out the BIA’s consultations with other people and what they had told the BIA. The people consulted were: Mrs Y’s social worker, senior staff at the care home, a doctor and Ms Z.
18. The Form 3 went on to record Ms Z had told the BIA:
• The social worker had told the landlord Mrs Y would not be returning to her flat and that the keys were to be handed back.
• Mrs Y had been told the flat had been given up, but she did not remember.
• She (Ms Z) agreed to a paid RPR because of her mother’s continued objections to being in the care home because this would relieve her of the pressure of being an RPR.
19. The BIA wrote on the Form 3 “the BIA asked whether she [Ms Z] could inform the family of the DOLS, she agreed she would.”
20. The Form 3 also said Mrs Y’s social worker confirmed the placement was permanent. The BIA recommended a standard authorisation lasting three months.
21. The Council provided us with records of two visits by the paid RPR from SWAN in March and June 2023. The March 2023 record also refers to an earlier visit the RPR made at the end of January 2023. The RPR noted in the record of the January visit that she had spoken to Mrs Y, looked at her care records, spoken with senior staff at the care home and also with Ms Z. Mrs Y continued to object to being in a care home. The RPR told Mrs Y that there was going to be a court hearing and that the RPR would visit her with a solicitor to discuss the appeal. The RPR noted she had phoned Ms Z after the visit and told her about the court hearing.
22. The note of the RPR’s visit in June said Mrs Y continued to say she wanted to return home.
23. The Council’s response to the complaint said:
• Ms Z was the main contact and officers liaised with her. Mr X was not a named contact.
• Two social workers visited Mrs Y “on numerous occasions” between March and January 2023.
• The Best Interests Assessor and paid relevant Person’s Representative consulted with Mrs Y and Ms Z regarding the court application (appeal of the DOLS authorisation.)
• The RPR provided reports of her visits to Mrs Y in January, March and June 2023. The report in March contained evidence of the RPR’s consultation with Ms Z.
• The BIA also contacted Ms Z in April and May 2023 about renewing the assessment.
24. Mrs Y died in hospital in June 2023. The death certificate recorded sepsis as the cause of death.
25. The Council provided us with records of safeguarding concerns raised in relation to the care home. There was a concern raised by the ambulance service: that staff had told paramedics that they had delayed calling emergency services when Mrs Y reported feeling unwell, because there was a shortage of staff. The Council’s records indicate it made inquiries of the care home’s manager who denied there had been a delay, that the care home’s records showed they monitored Mrs Y from early evening and then called 111 who sent an ambulance. The records show a member of social care staff contacted Mr Z (who had complained) to discuss the outcome of inquiries.
26. The Council also provided us with its records of contact on Mrs Y’s case. These showed regular liaison with Ms Z about Mrs Y’s welfare and care. There was no contact with other family members other than the contact with Mr X set out in the last paragraph).
27. The DOLS team manager told us:
• Other relatives were not consulted about the DOLS was because Ms Z agreed to share information with her siblings.
• Many of its BI assessors rely on family members to share information and although the Council recognised it was not necessarily in line with the Code of Practice, it was done in good faith where there appeared to be no conflict.

Was there fault?

The Council did not keep Mr X updated about his late mother Mrs Y and did not say Mrs Y was a permanent resident of a care home, but did tell the landlord

28. The Council should have identified all people close to Mrs Y who were interested in her welfare and consulted with them because this is what the MCA Code. It should have sent copies of the standard authorisation to all those it should have consulted. There is no record of decision makers having thought carefully about who to speak to and no contemporaneous record giving clear and detailed reasons why they did not speak to Mr X or his brothers. This is not in line with the Code and is fault which caused Mr X avoidable distress because he did not know what was going on with Mrs Y’s care and accommodation arrangements.

The Council did not take into account Mrs Y’s wishes

29. I do not uphold this complaint. The records show officers took Mrs Y’s wish to return home into account. This was why there was an application to court – because officers identified she objected to remaining in the care home.

Officers said they had visited Mrs Y when they had not

30. I do not uphold this complaint. The records show several officers visited Mrs Y.

The Council continued with a placement in the care home after the family raised concerns about mistreatment.

31. There is no contemporaneous written record of family raising concerns about Mrs Y’s care in the care home until she was taken to hospital where she died. So I do not uphold a complaint about continuing with the placement. Records show the Council considered safeguarding concerns following information from the paramedics about an alleged delay in summoning emergency services. The Council considered evidence from the care home and decided not to pursue matters. My view is this is in line with Section 42 of the Care Act 2014, so there is no fault.

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Agreed action

32. The Council will, within a month of my final decision:
• Apologise to Mr X for the avoidable distress caused by the failure to consult with him about Mrs Y’s welfare.
• Remind relevant officers and its commissioned service (SWAN) of the guidance on consultation in the Code of Practice to the Mental Capacity Act as set out in paragraph 10 of this statement.
33. The Council should provide us with evidence it has complied with the actions in the previous paragraph.

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Final decision

34. There was fault by the Council which failed to consult Mr X about his late mother’s care. This caused avoidable distress. The Council will apologise and remind staff of the relevant sections in the Code of Practice to the Mental Capacity Act which set out the people that need to be consulted.
35. I have completed the investigation.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman