Summary: There is no evidence the actions of the care provider caused injustice to Ms A. There was a family dispute which care home staff sought to manage in the best interests of the late Mrs X, for whom they had a caring responsibility.

The complaint

1. Ms A (as I shall call her) complains that the actions of the care provider shortly before the death of her grandmother Mrs X caused her considerable distress. She says the care provider did not follow the correct procedures in relation to her grandmother’s wishes to attend her own daughter’s funeral, and threatened to call the police if Ms A visited the home after she had been assaulted by a relative. She says the care provider did not investigate her complaint formally,

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The Ombudsman’s role and powers

2. 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)

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How I considered this complaint

3. I spoke to Ms A, and to the care provider. I considered all the information provided by Ms A and by the care provider. Both parties had an opportunity to comment on an earlier draft of this statement before I reached a final decision.

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What I found

Relevant law and guidance

4. 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.
5. 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.

6. An assessment of someone’s capacity is specific to the decision to be made at a particular time. 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. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome
7. 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.
8. The Mental Capacity Act 2005 introduced the “Lasting Power of Attorney (LPA)”. An LPA is a legal document, which allows a person (‘the donor’) to choose one or more persons to make decisions for them, when they become unable to do so themselves. The 'attorney' or ‘donee’ is the person chosen to make a decision on the donor’s behalf. Any decision has to be in the donor’s best interests.

There are two types of LPA.

• Property and Finance LPA – this gives the attorney(s) the power to make decisions about the person's financial and property matters, such as selling a house or managing a bank account. Unless the donor says otherwise, the attorney may make all decisions about the donor’s property and finance even when the donor still has capacity to make those decisions.
• Health and Welfare LPA – this gives the attorney(s) the power to make decisions about the person's health and personal welfare, such as day-to-day care, medical treatment, or where they should live.

What happened

9. The late Mrs X, who was resident in the Castle Brook Care Home, had a large family. There were disputes among some family members. Ms A says she did not have a good relationship with her two aunts (her mother’s sisters, and Mrs X’s daughters). Mrs X had dementia and was described by the care home as having fluctuating capacity. There was however a DoLS authorisation in place.

Attendance at a funeral

10. Ms A’s mother (Mrs X’s daughter) sadly died in early 2023. Ms A says she had wanted to share the news with the rest of the family herself, but when she arrived at the care home to do so she was told by a member of staff that the manager had already told her aunts.
11. Ms A’s aunts (who had power of attorney for Mrs X) then emailed the care home manager to say they did not want Mrs X to attend the funeral. They said in their view it was not in her best interests to do so and was a constant reminder to her of the death of her daughter.
12. The care home manager responded. She said Mrs X had dementia but still had capacity to make informed choices about some matters and it was her duty as care home manager to ensure her wishes were heard. She suggested it would be a good idea to ask the local safeguarding team to support Mrs X with her decision.
13. A clinical practitioner visited Mrs X and carried out a mental capacity assessment specifically about the decision to attend the funeral. She spoke to Mrs X on two separate occasions 24 hours apart. The conclusion was that as Mrs X was able to understand and weigh up the information about her daughter’s funeral, weigh up the choice and communicate her decision, she had capacity to make the decision to attend the funeral.
14. Ms A complained to the care provider about the home manager. She said two members of staff had overheard the manager telling her aunts of her mother’s death (but the members of staff would not now give their names). She said the manager denied anyone had told her aunts of the death. Ms A also complained that the manager had shared the date of her mother’s funeral although her mother had not wanted either of her sisters to attend.
15. The Director of Quality investigated the complaint and spoke to the home manager. The manager denied she had discussed the death with Ms A’s aunts although she had told them Mrs X may need some extra support after Ms A’s visit. The manager also said a member of staff may have heard her explaining the situation to the deputy manager.
16. The manager also denied telling Ms A’s aunts the date of the funeral.
17. The Director of Quality asked the manager to offer an apology to Ms A, which was agreed. The Director concluded that it was not possible to substantiate the allegations as there were no witnesses. Ms A says she never received the apology.

An assault on Ms A and the subsequent actions of the care provider

18. As Mrs X’s health deteriorated, an end-of-life care plan was put in place around visits by family members. The care plan stipulated that Mrs X wanted her surviving daughters (Ms X’s aunts) to be with her. It said if Ms A visited, she would be told her aunts were with Mrs X. If Ms A then went to Mrs X’s room, she would not be prevented from visiting.
19. Ms A says on one occasion when visiting at this time she was told she could not see her grandmother. She said on another occasion she was told that her partner, with her at the time, could not visit Mrs X.
20. During the final week of Mrs X’s life, Ms A was sitting with her grandmother holding her hand when one of aunts entered the room and assaulted her. A member of care home staff was in the room at the time. Following this incident, the care home conducted a fresh risk assessment and put in place a new visiting protocol:

if Ms A visited, her aunt would leave the room;

Ms A would approach the room by a different staircase to avoid meeting her aunts;

Ms A would visit at a pre-arranged time;

If an altercation occurred, the police would be called to remove all parties.

21. Ms A says she was contacted by the care home at 23.30 on the night of Mrs X’s death. Ms A says she had called the home earlier that evening, at 19.10, and been told by a staff member that she had seen Mrs X in the last half hour, and she was comfortable. Ms A says she subsequently learned Mrs X had died at 18.20.

The complaint

22. Ms A remained unhappy with the actions of the care home staff and met with the Director of Quality again on 15 June 2023. She raised again the complaints she felt had not been properly answered, including the news about her mother’s death, attendance at the funeral, and information sharing by the manager.
23. The Director of Quality contacted Ms A’s aunt as requested as Ms A said her aunt had confirmed that the home manager had told her of her mother’s death. The records show that the Director of Quality contacted the aunt who denied that the manager had told them.
24. On 19 September the Director of Quality wrote to Ms A. She said the aunt had confirmed the care home manager had not told her about the death or the funeral arrangements. The Direct of Quality concluded there was nothing further to be done. She also explained again the outcome of the investigation into Ms A’s concerns and said that it had not been possible to establish the truth of the allegations as there were no witnesses who would come forward and it was one person’s word against another.
25. Ms A asked for a copy of the investigation report. The Director said she had already communicated the contents and outcome of the report.
26. Ms A contacted the CEO of the organisation but did not receive a reply.
27. Ms A complained to the Ombudsman. She said she was unhappy that her complaint about the manager, who she said had breached data protection regulations by sharing information about the death of her mother, had not been dealt with formally. She remained unhappy about the care home’s procedures in respect of her grandmother attending the funeral. She said after the assault she was told by the manager the police would be called if she visited again. She said care home staff were bullied into not giving evidence about the assault. She also complained about being told her grandmother was ‘comfortable’ when she had already died. She said the actions of the care home had alienated her from her family.

Analysis

28. There is evidence to show the care provider properly investigated the complaint made about the care home manager. The Director of Quality interviewed the manager but concluded there was no evidence to prove (or disprove) Ms A‘s allegations as there were no witnesses. It is noteworthy that the aunt with whom the care home manager was deemed to have shared the information also refuted that had happened.
29. Ms A says Mrs X was of sound mind and capable of making her own decisions: however, Mrs X had dementia and there was a DoLS authorisation in place. It was not fault on the part of the care provider to ensure that a decision was made in Mrs X’s best interests and she was able to express her preference in relation to attendance at her daughter’s funeral.
30. The risk assessment put in place by the care home following the assault on Ms A states that the police would be called if there was another altercation. It was not fault for the care home to explain that to Ms A.
31. It is unfortunate that Ms A was given incorrect information about the time of her grandmother’s death. Conceivably the member of staff she spoke to was simply inaccurate in her account of when she had last seen Mrs X. However, it is difficult to see what injustice was caused to Ms A by the oversight.
32. The care home provider has not supplied Ms A with a copy of the investigation report: however, the Director of Quality communicated the outcome to Ms A in sufficient detail to respond to the complaint. There was no additional information to pass on to Ms A and therefore no injustice caused.

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Final decision

33. I have completed this investigation. I find that that the actions of the care provider did not cause injustice to Ms A.

Investigator’s decision on behalf of the Ombudsman

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Investigator's decision on behalf of the Ombudsman