Summary: Mr X complains on behalf of Mr Y that Care South, on behalf of the Council, failed to deal with adult social care properly, causing distress. Care South did not fully satisfy the conditions in Mr Y’s Deprivation of Liberty Safeguards (DoLS) or follow its complaints process properly. Mr X suffered delay. Care South has apologised for a delay in its complaints process. The Council should apologise to Mr X and pay Mr X £200 for avoidable distress.

The complaint

1. The complainant, whom I shall refer to as Mr X, complains on behalf of Mr Y that Care South (on behalf of the Council), failed to deal with Adult Social Care properly because it:
• failed to comply with its complaints process.
• failed to properly meet conditions of a Deprivation Of Liberty (DOLs) notice because it hasn’t shared information it should have done
2. Mr X says the family suffered avoidable distress.

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The Ombudsman’s role and powers

3. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused a significant injustice or that could cause injustice to others in the future we may suggest a remedy. (Local Government Act 1974, sections 34B, 34C and 34H(3 and 4) as amended)
4. Our role is not to ask whether an organisation could have done things better, or whether we agree or disagree with what it did. Instead, we look at whether there was fault in how it made its decisions. If we decide there was no fault in how it did so, we cannot ask whether it should have made a particular decision or say it should have reached a different outcome.
5. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened.
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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What I have and have not investigated

7. I have investigated that part of Mr X’s complaint about how the Care Provider has followed its complaints process and dealt with a DOLs notice.
8. I cannot investigate additional complaints made to the Ombudsman later because they concern events which occurred after the final complaint response and the Council/Care Provider has not had an opportunity to respond to them.

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How I considered this complaint

9. I considered evidence provided by Mr X and the Council as well as relevant law, policy and guidance.
10. Mr X and the Council had an opportunity to comment on my draft decision. I considered any comments before making a final decision.

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What I found

Law, guidance and policies

Deprivation of Liberty Safeguards (DoLS)

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. For people being cared for somewhere other than a care home or hospital, deprivation of liberty will only be lawful with an order from the Court of Protection. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
12. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
13. If there is a conflict about a deprivation of liberty, and all efforts to resolve it have failed, the case can be referred to the Court of Protection.
14. 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.
15. 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.
16. The application for authorisation should be made within 28 days.
17. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.

The Care Provider’s complaints policy

18. The Care provider has a three stage complaints policy.
• At stage 1 the manager at the home will be the best person to speak to. The concern or complaint will be investigated by someone not involved in the events leading to the complaint.
• At stage 2 the complaint will be dealt with by the Operations Manager or Head Office.
• At stage 3 the complaint will be dealt with by the Chief Executive.
19. The Care provider says it will acknowledge complaints within 24 hours or by the end of the next working day. It will provide a formal written response within 28 calendar days at each stage of the complaints process.

What happened?

20. This is a brief chronology of key events. It does not contain everything I reviewed during my investigation.
21. Mr Y required full time care and support. He moved to Care Home 1 run by Care South in February 2024.
22. In April 2024, Mr Y was assessed and found to lack capacity to make decisions about his care. Mr Y was placed under DoLS. As part of the assessment, conditions were attached to the DoLS authorisation.
23. Mr Y’s DoLS authorisation was reviewed by the Council in July 2024.
24. Mr X complained to the care provider in August 2024. The Care Provider indicated it was passing his complaint to its Operations Manager. Mr X requested his complaint be dealt with at stage 2 of the Care3 providers complaints process as the Operations Manager may not be objective.
25. The Care Provider responded to Mr X at stage 2 of its complaints process in September 2024. It did not uphold Mr X’s complaint.
26. Mr X was unhappy with the response and said his complaint had not been responded to fully.
27. The Care Provider responded to Mr X’s complaint at stage 3 of its complaints process in late September 2024.
28. Mr Y has since moved to another care home.

Analysis

Complaint handling

29. The Care Provider acknowledged Mr X’s initial complaint 10 days after it was submitted. This is outside the timescales stated in the complaints policy. This is fault. The Care provider apologised for the delay. I consider this an appropriate remedy.
30. The Care Provider escalated Mr X’s complaint to stage 2 as he requested. This is not fault.
31. The Care Provider responded to Mr X at stage 2 within 28 calendar days of his request to escalate his complaint. This is not fault.
32. When Mr X was unhappy with the stage 2 complaint response, the Care Provider responded at stage 3 within 28 calendar days. This is not fault.
33. Mr X’s initial complaint included issues relating to failure to comply with actions from DOLs recommendations, frequency of unwitnessed falls and reporting; unprofessional conduct from a manager and general staffing levels.
34. The stage 2 complaint response stated:
• There had been some inconsistency about levels of detailed reporting, but that the Care provider considered this was compliant with the DOLs conditions.
• The Care Provider was sharing information with Mr X, but said it was unable to share copies of care notes. It said it had been emailing Mr X regularly.
• It investigated falls on specific dates and provided information about them.
• That the Care Provider had reviewed staffing allocation on specific dates and was satisfied there was a suitable staffing level.
35. Mr X responded to the Care Provider saying:
• In his opinion the emails he had received fell short of the intent of the DOLs recommendations.
• Complaints and questions raised with the Care Provider’s Chief executive were not responded to.
• He would like an explanation about actions being taken to reduce the number of falls.
• He would like an explanation about the rationale for and outcome from a meeting with the manager whose conduct he complained about; and
• Reduced family attendance at the care home.
36. The stage 3 complaint response covered the areas of Mr X’s initial complaint, together with further information about communication sent in error, falls prevention and family attendance. It did not specifically answer the further issues Mr X raised with the Chief Executive.
37. This is fault by the Care Provider/Council. The Care Provider did not answer Mr X’s complaint properly at stage 3 because it did not respond to the issues he raised with the Chief Executive. However, this has not caused ongoing significant injustice as a result, as it would be unlikely to have resulted in a different outcome.

DOLs

38. In July/August 2024, a review of the conditions attached to Mr Y’s DoLS authorisation found that the Care Provider only partially met the condition in relation to recording information about Mr Y. The Council decided to retain the condition attached to Mr Y’s DoLS authorisation because the Care Provider’s staff were, “..mostly recording what Mr Y is saying and his presentation, the support provided by staff and the duration, but are not always recording what led up to the incident.”
39. The stage 2 complaint response accepts there was inconsistency with the level of detailed reporting.
40. The Care Provider and Mr Y had arranged to hold weekly meetings to facilitate communication about Mr Y. In August Mr X said these had stopped.
41. The August review added a recommendation that, “Adult Social Care to liaise with [the Care Provider] to ensure previously agreed actions to facilitate communication with Mr Y’s family are being adhered to, including weekly meetings and the use of a communication book.”, to happen as soon as possible, and to be reviewed as part of the DoLS review.
42. The Council accepts that Mr X asked it to provide ABC charts for Mr Y in August. The Council says there is no evidence that it requested this information from the Care provider, or that this information was provided to Mr X.
43. On the balance of probabilities, the Council/Care Provider is at fault because it did not fully comply with the DoLS conditions to share information. However, this did not cause Mr Y any significant ongoing injustice because it would have been unlikely to have resulted in a different outcome.
44. Mr X says this, “denied him the opportunity to understand the legal and clinical basis for his father’s deprivation of liberty, to verify whether the safeguards were being properly applied, and to challenge or question any aspect of the authorisation that might have affected Mr Y’s rights, dignity, or care. This lack of transparency obstructed Mr X’s role as an informed advocate and undermined the principle of accountability that underpins the Mental Capacity act.”
45. I agree with Mr X. Mr X suffered avoidable distress as a result of the fault found above.

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Action

46. To remedy the outstanding injustice caused by the fault I have identified, the Council should take the following action within 4 weeks of my final decision:
• Apologise to Mr X for not complying with the DOLs conditions and not providing information. We publish guidance on remedies which sets out our expectations for how organisations should apologise effectively to remedy injustice. The organisation should consider this guidance in making the apology I have recommended in my findings.
• Pay Mr X £200 for avoidable distress.
47. The Council should provide us with evidence it has complied with the above actions.

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Decision

I find fault causing injustice. The Care Provider has already apologised. The Council has agreed actions to remedy injustice.

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Investigator's decision on behalf of the Ombudsman