The Ombudsman's final decision:
Summary: The Ombudsmen find fault in the way a Council conducted a safeguarding enquiry. As a result restrictions were put in place before proper consideration had been given to the person’s best interests. This, in turn, caused avoidable distress to her husband. The Council has agreed to action to learn from the case.
- Mrs L lived at Eagle Wood Neurological Care Centre (the Care Home) in 2017. The Care Home is run by PJ Care Ltd. Mrs L’s husband, Mr L, complains about how Peterborough City Council (the Council) carried out a safeguarding enquiry about his wife during this time.
- Mr L complains that both he and his daughter, Mrs H, were excluded from an Adults at Risk (AAR) meeting without their knowledge or any explanation. Further, he said the minutes of the AAR meeting were incomplete and he was not given the opportunity to answer all the allegations against him.
- Mr L complains the AAR meeting wrongly concluded that abuse had occurred. He said, as a result, the Council and Care Home placed inappropriate restrictions on his contact with his wife.
- Mr L complains the Council refused to reconvene the AAR meeting or to refer the matter to the Court of Protection (the Court). Mr L also said there were unreasonable delays throughout the complaint investigation process. He said the Council later found the conclusions of the AAR meeting were not sound but the Council failed to persuade the Care Home to remove the restrictions placed on him.
- Mr L also complains about the actions of the Care Home while his wife was a resident there. His complaints relate to the safeguarding referral it made to the Council, the Care Home’s attitude towards him, and the care provided to his wife including lack of physical activity.
- Mr L said the actions of the Council and the Care Home had a significant detrimental impact on both him and Mrs L. He said his wife has been denied all contact with her family and friends, and her physical health deteriorated significantly due to lack of exercise. He said he has been caused distress and his life has been made intolerable.
- Mr L would like the actions of the Council and the Care Home to be independently reviewed. He would like to see changes made so other people do not experience similar problems.
The Ombudsmen’s role and powers
- The Ombudsmen have the power to jointly consider complaints about health and social care. Since April 2015, these complaints have been considered by a single team acting on behalf of both Ombudsmen (Local Government Act 1974, section 33ZA, as amended, and Health Service Commissioners Act 1993, section 18ZA).
- The Ombudsmen investigate complaints about ‘maladministration’ and ‘service failure’. We use the word ‘fault’ to refer to these. If there has been fault, the Ombudsmen consider whether it has caused injustice or hardship (Health Service Commissioners Act 1993, section 3(1) and Local Government Act 1974, sections 26(1) and 26A(1), as amended).
- If the Ombudsmen are satisfied with the actions or proposed actions of the bodies that are the subject of the complaint, they can complete their investigation and issue a decision statement (Health Service Commissioners Act 1993, section 18ZA and Local Government Act 1974, section 30(1B) and 34H(i), as amended).
How I considered this complaint
- I read the correspondence Mr L sent to the Ombudsmen and spoke to him on the telephone. I wrote to the Council and PJ Care Ltd to explain what I intended to investigate and to ask for comments and copies of relevant records. I considered all the comments and records they provided.
- I shared a confidential copy of my draft decision with Mr L, the Council and PJ Care Ltd to explain my provisional findings. I invited their comments and considered those I received in response.
What I found
- The Mental Capacity Act 2005 (the MCA) is the framework for acting and deciding for people who lack the mental capacity to make choices of their own. The MCA and associated Code of Practice describe the steps people should take when deciding something for someone who cannot make that decision on their own.
- A key principle of the MCA is that any decision, or action, must be in the best interests of the person without capacity. Section four of the MCA provides a checklist of steps that decision makers must follow to determine what is in a person’s best interests. Chapter five of the Code of Practice gives guidance on how to work out a person’s best interests.
Deprivation of Liberty Safeguards
- The Deprivation of Liberty Safeguards (DOLS) is an amendment to the MCA. 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. DOLS protect people from being deprived of their liberty unless it is in their best interests and there is no other less restrictive alternative. Without authorisation a deprivation of liberty is unlawful. If there is a conflict about a deprivation of liberty and all attempts to resolve it have failed, the case can be referred to the Court.
- If a council thinks someone might be at risk of neglect or abuse, and cannot protect themselves from those risks, it must make (or arrange for someone else to make) any necessary enquiries. The council must also decide whether anyone should take any action to protect the person at risk. This is set out in section 42 of Care Act 2014. The Care and Support Statutory Guidance guides professionals on how to fulfil this duty.
- A fundamental part of the safeguarding process is that it should be about promoting the person’s wellbeing and decisions should reflect the person’s wishes wherever possible (Sections 14.8 and 14.79, Care and Support Statutory Guidance).
- In line with this, when following safeguarding duties all professionals must work in line with the MCA (Sections 14.55 to 14.61, Care and Support Statutory Guidance).
- It is also very important that they take the wishes of the adult into account (Section 14.96, Care and Support Statutory Guidance).
- Also, that ‘where the adult may lack capacity to make decisions about arrangements for enquiries or managing any abusive situation, then their capacity must always be assessed and any decision made in their best interests’ (Section 14.108, Care and Support Statutory Guidance).
- The guidance also warns that ‘Personal and family relationships within community settings can prove both difficult and complex to assess and intervene in. The dynamics of personal relationships can be extremely difficult to judge and rebalance’ (Section 14.81, Care and Support Statutory Guidance).
- Further, it notes that ‘Any intervention in family or personal relationships needs to be carefully considered. While abusive relationships never contribute to the wellbeing of an adult, interventions which remove all contact with family members may also be experienced as abusive interventions and risk breaching the adult’s right to family life if not justified or proportionate. Safeguarding needs to recognise that the right to safety needs to be balanced with other rights, such as rights to liberty and autonomy, and rights to family life…’ (Section 14.98, Care and Support Statutory Guidance).
The Human Rights Act 1998
- Public bodies must not act in a way that is incompatible with a right under the European Convention on Human Rights (Section 6 of the Human Rights Act 1998). Article 8 is the right to respect for personal and family life. This is a ‘qualified right’, where organisations can interfere with the right providing they do so in a proportionate way with a legitimate aim.
- Mrs L has dementia and needs 24 hour care. She moved into the Care Home in late 2015. Mr L would take Mrs L home for an overnight visit once a week. At regular intervals Mr L removed Mrs L’s pubic hair, and this was something they had done for over 40 years.
- A GP raised a safeguarding alert about this in July 2016. The Council made some enquiries and satisfied itself the practice was not a concern. Shortly after this there was a Best Interests meeting, called by the Care Home. The meeting considered Mrs L’s home visits. It decided it was appropriate for the visits to continue.
- In late January 2017 the Care Home raised a safeguarding alert. It said Mrs L returned from an overnight visit with bruising to the top of her inner thigh and her pubic area was shaved. The Council made enquiries and there were AAR meetings in early March 2017. The professionals concluded there was evidence of abuse and recommended actions to keep Mrs L safe. It recommended home visits should cease immediately and that there needed to be a chaperone when Mr L visited Mrs L in the Care Home.
- Mr L was deeply dissatisfied with this outcome and with the process leading to it. He asked for the AAR meeting to be reconvened and for the matter to be escalated to the Court.
- The Council did neither. It took advice from its legal department. It then arranged a metal capacity assessment in May 2017. This found Mrs L did not have the capacity to decide if she wanted to go home with her husband, or if she wanted her pubic hair removed.
- In the middle of May 2017 Mr L emailed the Council and complained about its actions. The Council wrote to Mr L toward the end of June 2017 and noted its findings to date. On the issue of whether the findings of abuse were sound, the Council said it was waiting for additional information it needed to review.
- The Council completed another mental capacity assessment in July 2017. It came to the same conclusion as the May 2017 assessment.
- At the end of July 2017 the Council completed a complaint investigation report. The Council said it did not agree with ‘the appropriateness of the outcome of the [Safeguarding] Enquiry’. The Council said it did not consider the allegations of sexual or physical abuse were evidenced or substantiated from a safeguarding perspective.
- However, the Council said it agreed the home visits and shaving may not be in Mrs L’s best interests. The Council said, because of this, it had asked an NHS Clinical Commissioning Group (CCG) to hold an urgent Best Interests meeting to address these issues. The Council said if all parties could not agree there would need to be an application to the Court.
- A Best Interests meeting took place in September 2017. This determined it was not in Mrs L’s best interests to have her pubic hair removed. It recommended a phased return of home visits, with a CCG nurse supervising them at first. In November 2017, after two visits in October, the CCG wrote to the Care Home and said it was happy for unsupervised home visits to restart. The Care Home disagreed with this and did not allow any unsupervised home visits. Mrs L moved to a different care home at the end of December 2017.
- In January 2018 Mr L contacted the Council and said he remained dissatisfied with its response to his complaint. The Council replied at the start of February 2018. The Council acknowledged some shortcomings in the events since the meeting in March 2017. However, it found the decision not to proceed to the Court was appropriate.
Complaint the Care Home made a safeguarding referral to the Council
- Mr L complains the Care Home make should not have accused him of sexual and physical abuse. He said the Care Home knew he and his wife had practiced the action in question (removing pubic hair) for over 40 years. Further, Mr L said a safeguarding enquiry had been agreed it could continue in July 2016.
- As noted above, a safeguarding investigation looked at this issue in July 2016 and did not find any concerns. The Care Home (in correspondence with the Ombudsmen) has acknowledged this safeguarding decision. It noted the reasoning was because both Mr and Mrs L had shaved their pubic areas throughout their marriage. However, the Care Home said ‘We were never comfortable with the fact that Mr L now shaved his wife and that she was unable to provide consent for this’.
- There is evidence that the Care Home had concerns before it made the safeguarding alert in January 2017. The records show Mrs L went home with Mr L in the early afternoon of 20 January 2017. A GP had seen Mrs L earlier in the day. As part of their notes the GP wrote that the ‘unit have safeguarding concerns again : body mapping before and after going out with husband still’.
- The apparent catalyst for the safeguarding referral in January 2017 was the presence of fingertip bruising as well as Mrs L’s lack of pubic hair. Mr L has consistently argued that he did not cause the bruise on Mrs L’s leg. He maintains that staff in the Care Home did so.
- The Care Home’s records show that, after going home on 20 January 2017, Mrs L returned to the Care Home at around lunchtime on 21 January 2017. Despite the GP’s note (about the Care Home using body maps), I have not seen any evidence of a body maps from 20 or 21 January 2017.
- In the Care Home records for 21 January 2017 staff noted that Mrs L was assisted to the toilet after lunch, around dinner time and in the evening. Staff also recorded that they put a clean pad on in the evening. A Lead Nurse noted in a statement (to the Care Home, several days later) that when they finished their shift at 8pm on 21 January 2017 they were unaware of any problems resulting from the home visit.
- The first reference to staff noticing a bruise is in a record made at 6am on 22 January 2017: staff noted they had noticed ‘this morning [Mrs L] has a bruise’ on the top of her leg. Staff completed an incident report and a body map which noted a bruise to the top of Mrs L’s right inner thigh. Another member of staff noted another bruise to the top of Mrs L’s left thigh shortly after 8am on 22 January 2017. They noted this ‘was higher on the leg and only visible if her legs are apart. Each set of bruising were a number of small dot bruises in a line’.
- Given the care interventions they performed, it seems likely staff may well have seen the top of Mrs L’s right thigh in the afternoon and evening of 21 January 2017. They helped her with personal care and this area is likely to have been visible. However, I can do nothing more than speculate on whether the mark was there but went unnoticed, or if the first sign of a mark appeared at some point later, before the early morning of 22 January 2017.
- The Care Home did not immediately make a safeguarding referral. A GP record from 27 January shows they were made aware of the Care Home’s concerns. They recorded (on 27 January) that ‘Nurses noted 4cm bruise on [right] inner thigh on Saturday [21 January 2017] morning after home leave Friday [20 January 2017] night with husband’. These days do not correlate with the Care Home’s records: Mrs L was still at home on Saturday morning and the first reference to the bruise in the Care Home notes was on Sunday morning. However, regardless of this, it shows the Care Home shared its concerns with the GP who, in turn, arranged blood tests ‘for unexplained bruising’.
- The Care Home also made its safeguarding referral on 27 January 2017. In the referral it noted ‘It is our belief that the bruising was sustained at her home whilst in the care of her husband. Mr L met our Family Liaison Officer…to discuss the bruising and was unable to give a rational explanation of how it occurred’. There is evidence in the Care Home notes that an Acting Unit Manager told Mr L it was making the referral.
- Overall, it is not possible for me to say how or when the bruising occurred. However, the evidence persuades me that the Care Home did have concerns for Mrs L’s welfare. In these circumstances it was appropriate for it to raise a safeguarding alert, which the Care Home was open and transparent about. In making the referral the Care Home effectively sought an independent view on whether its concerns had merit and, if so, what should be done. The fact that the source of the bruising was disputed did not mean it was wrong for the Care Home to ask the Council to investigate. It was then for the Council to determine if the threshold for an investigation was met. The Council was persuaded the threshold was met and the purpose of its safeguarding enquiries was to gather evidence and to make a decision on the concerns. Therefore, I find no fault in the Care Home’s decision to make a safeguarding referral.
Complaint that both Mr L and his daughter were excluded from an AAR meeting without their knowledge or any explanation; and,
Complaint that the minutes of the AAR meeting were incomplete and Mr L was not given the opportunity to answer all allegations against him
- The Council opened a safeguarding enquiry on 2 February 2017. The safeguarding officer visited Mr L in the middle of the month. After the visit the Council referred Mrs L to an Independent Mental Capacity Advocate (IMCA) to help ensure she was given a voice during the safeguarding process. This was good practice.
- Later in the month the Council told Mr L there would be an AAR meeting soon. Mr L replied by email and said he would not be happy to attend a meeting that included the Care Home until the IMCA had interviewed him. The Council’s safeguarding officer replied and said the IMCA would not be contacting him. However, the officer said they were happy to meet Mr L again, and to meet his daughter, Mrs H.
- The officer visited Mr L and Mrs H a few days later, in late February 2017. At this visit the officer said there would be a meeting. Mr L asked if the Care Home would be there and said he would not sit in the same room as them. Mr L said he wanted his daughter to go to the meeting.
- Two meetings took place on 9 March 2017. The first involved staff from the Council, Mrs L’s GP, a Continuing Healthcare Nurse, staff from the Care Home and the IMCA. The second meeting involved staff from the Council, a Continuing Healthcare Nurse and Mrs H and her husband. Mr and Mrs H said they were there on behalf of Mr L.
- The notes of the first meeting stated Mr L had been invited to the meeting but declined to attend. The attendees discussed the concerns and agreed there was evidence of abuse. They agreed home visits should cease and that there should be a chaperone when Mr L visited his wife at the Care Home. The attendees also noted the case should go to the Court if necessary, and noted a plan to reapply for DOLS.
- The minutes of the second meeting stated ‘The purpose of the meeting was to feedback to family following the Adult at Risk meeting for professionals with a view to reaching a satisfactory and agreed conclusion’. The Council said it had hoped Mr L would have attended the AAR meeting with the Care Home and other professionals. Mrs H said Mr L could not attend due to his poor health and would have found the situation too stressful. The Council said the Care Home were not involved in this meeting because Mr L had said he would not sit in a room with them.
- During the second meeting Mr and Mrs H advocated on Mr L’s behalf and disputed the claim that he had bruised Mrs L. They also argued that any concerns about Mr L removing Mrs L’s pubic hair were unwarranted. Mrs H also read from a statement Mr L had prepared. The Council officers discussed the issues at hand and noted the conclusions of the earlier meeting. The outcome was that the Council would contact its legal department about whether to proceed to the Court.
- Toward the end of March 2017 Mr and Mrs H wrote to the Council and thanked it for the minutes of the AAR meeting they attended. They provided explanations of amendments they wanted to be made to the minutes. The Council told the Ombudsmen this letter has been added to the minutes.
- During the complaints process the Council said there had been a misunderstanding about Mr L’s attendance at the meeting. It said it had understood that Mrs H, like Mr L, did not want to be in a meeting with the Care Home. It said this was why it arranged two meetings. The Council said it now understood this was incorrect. The Council also acknowledged that the arrangements for the meeting to be held in two parts were not clearly communicated. It said, as such, it could understand why Mr L felt excluded. However, the Council concluded Mrs H had been able to advocate on Mr L’s behalf.
- Overall, I am satisfied the Council made a genuine offer for Mr L to attend the AAR meeting and it was his own choice not to attend. I am also satisfied that – through Mr and Mrs H’s attendance at the second meeting – the Council gave Mr L an opportunity to have his views heard. The notes of the second meeting provide evidence of a discussion and provide a rationale for the Council’s conclusions. Further, the outcome of the second meeting provides evidence the Council recognised the family’s continued disagreement with the professionals’ findings and agreed to look at how to escalate that dispute. Therefore, I do not consider the second meeting was simply to pay lip service to the family’s views. I also consider it was proportionate to add Mr and Mrs H’s comments to the minutes of the second meeting. As such, I find no fault in the way the Council arranged and conducted the AAR meetings.
Complaint that the AAR wrongly concluded that abuse had occurred;
Complaint the Council refused to reconvene the AAR meeting or to refer the matter to the Court; and,
Complaint there were unreasonable delays throughout the complaint investigation process
- I have looked at these issues together as they are closely related.
- When the Council opened its safeguarding enquiry (at the start of February 2017) it noted the need for a Best Interests meeting. It said this would allow the issues to be spoken about openly. However, no one arranged or completed a decision‑specific capacity assessment and a Best Interests meeting did not take place before the AAR meetings.
- As noted above, the first AAR meeting concluded there was evidence of abuse. This resulted in restrictions being put in place. Both AAR meetings noted that going to the Court may be the next step in the face of continuing disagreement between the family and professionals. Mr L agreed with this and asked the Council to take the case to the Court.
- This did not happen because the Council received legal advice about the need to complete a decision-specific capacity assessment and to hold a Best Interests meeting. This advice essentially mirrored the plan that had been in place at the start of the process.
- A DOLS assessment took place soon afterwards, toward the end of March 2017. This noted that the restrictions imposed by the AAR meeting were separate to the restrictions being authorised by this DOLS. As such, its authorisation did not cover the new restrictions.
- In late April 2017 Mr L continued to press the Council to refer the case to the Court. The Council said it still intended to complete a new capacity assessment and hold a Best Interests meeting. It said it would not refer the matter to the Court before it completed these actions, and it said there was nothing that would warrant reconvening the AAR meeting.
- The Council completed a capacity assessment in early May 2017. It found Mrs L lacked the capacity to decide the matters in question. However, this did not lead to any immediate action. The Council has noted that arrangements for a Best Interests meeting were outside of its immediate control and they were reliant on the local NHS Clinical Commissioning Group (CCG). There is evidence to support this.
- Also, when the Council replied to Mr L’s complaint (toward the end of June 2017) it said it understood Mr L did not feel able to attend a Best Interests meeting until his complaints had been addressed. This was another reason why a Best Interests meeting did not happen soon after the May 2017 capacity assessment. The Council’s investigation of the complaint was ongoing at this point.
- Another DOLS assessment took place after this, in late June 2017. Again, it did not include the restrictions on visiting. However, the assessor noted:
‘I have considered the restrictions currently in place on [Mr L and Mrs H]. It is clear that the decision of weighing up risks and the persons likely wishes, alongside Mrs L’s lack of capacity create a complex situation. Although there is no objection from Mrs L, both [Mr L and Mrs H] have consistently objected to the restrictions imposed on them and have asked that this decision be decided by the Court. Although I recommend authorisation of this deprivation of liberty I am aware that DOLS does not permit interference of Article 8 rights and therefore I recommend that an application be made to the Court for further advise’.
- The DOLS (for Mrs L to live in the Care Home) were authorised at the start of July 2017. In line with the assessors comments, the authorisation recommended:
‘the team responsible for the safeguarding enquiry should review [the restrictions on home visits and need for a chaperone]... Where there is no legal basis to substantiate concerns or warrant such restrictions, these should be revoked with immediate effect. The [Relevant Person’s Representative] is aware that an application to the Court can be made in order to object to any of the restrictions’.
- In late July 2017 Mr L met staff from the CCG who said they would arrange a Best Interests meeting. Several days later the CCG emailed Mr L about arranging an informal meeting with him and other members of the family and Mrs L’s friends. It said the meeting would be to help understand Mrs L’s wishes before the Best Interests meeting. This meeting took place on the last day of July 2017.
- The Council completed a new capacity assessment of Mrs L at the end of July 2017. This reached the same conclusion as the one in May.
- The Council sent a further response to Mr L’s complaint at the very end of July 2017. It said it did not agree with the outcome of the AAR meeting. However, the Council said it had concerns the home visits and removal of pubic hair may not be in Mrs L’s best interests. Therefore, the Council said it had asked the CCG to hold an urgent Best Interests meeting to address these issues. It said if all parties could not agree there would need to be an application to the Court.
- On 1 August 2017 the CCG sent out invitations for a Best Interests meeting to take place on 4 August. However, this meeting did not go ahead, partly because the Care Home did not attend. The Care Home told the Ombudsmen it did not receive an invitation to this meeting.
- A Best Interests meeting took place in early September 2017. In its final response to Mr L’s complaint (in February 2018) the Council said it had tried to resolve the dispute with a Best Interests meeting, without the need to go to the Court. However, the Council said Mr L was advised he could seek his own legal advice and go to the Court.
- Guidance on the safeguarding process is clear that professionals are expected to keep the choices and wishes of the individual at the centre of the process. It recognises that people lead very different lives and are free to make a multitude of decisions about their own interpersonal relationships. As part of this, guidance is equally clear that professionals must follow the MCA and do everything possible to make sure the wishes of people who do not have capacity are understood and respected. The safeguarding process, while it can be used to mitigate risk to a vulnerable adult, does not remove the Council’s (or other professionals’) need to act in accordance with the MCA.
- In this case neither a decision‑specific mental capacity assessment nor a Best Interests meeting happened before the AAR meetings. While there is evidence to show enquiries were made of a variety of people, a more formal process would have helped ensure that a thorough examination was made of Mrs L’s capacity, and that there was a comprehensive exploration of her best interests.
- Without these steps I do not consider the Council followed a robust process before placing restrictions on Mr and Mrs L’s lives. This was a significant omission as it potentially effected Mr and Mrs L’s right to a family life. It is not the Ombudsmen to determine if a human right has been breached – that is for the courts – but I consider such considerations are relevant here.
- After the AAR meetings the Council quickly recognised the need for a capacity assessment and Best Interests meeting. These things should have happened in the first instance and, in order to put things right, it was appropriate to pursue them before referring the matter to the Court. However, there should have been much more urgency and it should not have taken until September 2017 to complete the Best Interests meeting.
- I accept there were some complicating factors. The Council was reliant on the CCG to arrange the Best Interests meeting. In addition, Mr L advised that he did not want to proceed to a Best Interests meeting until he had a response to his complaint.
- In relation to this, Mr L’s MP forwarded a complaint to the Council toward the end of May 2017. The Council responded about a month later, in late June 2017, but noted it wanted to review further information. The Council asked the CCG for more information in early July 2017 and received it seven working days later. It then wrote a further response to Mr L nine working days later.
- In general terms, I do not consider this represented an unreasonable length of time for the Council to investigate and respond to a complaint. However, given the Council did not rescind the restrictions in the meantime, there was an additional urgency. In correspondence with the Ombudsmen the Council reiterated that Mr L did not feel able to attend a Best Interests meeting until his complaint about the safeguarding process was completed. The Council said it prioritised the complaint process but accepts that, in retrospect, it would have been better to have arranged a Best Interests meeting straight away (after the capacity assessment in May). It said, if necessary, another meeting could have been arranged after the complaints process finished. I agree this would have been appropriate.
- In summary, decisions were made to restrict Mrs L’s access to her family home, and to impose conditions on her husband’s visits to her, without properly considering her best interests first. In addition, the restrictions were based on conclusions about abuse which the Council has subsequently concluded were insufficiently evidenced. This was fault on the part of the Council as it was responsible for the safeguarding process.
- In terms of the impact of this fault, these restrictions were ‘officially’ in place from the time of the AAR meeting in March until the Best Interests meeting in September 2017. However, in practical terms, they were in place until Mrs L moved to a different care home at the end of December 2017. If the correct process had been followed, and a Best Interests meeting had been held before the AAR meeting, the restrictions on home visits may not have been put in place. There may well have been a continued dispute. However, it would have meant any continued dispute could have been escalated to the Court straight away. While I accept the Council were reliant on the CCG arranging a Best Interests meeting, I do not consider this caused a significant amount of the delay between March and September 2017. On the balance of probabilities I consider the Council’s faults caused an unnecessary delay of around five months before proper consideration had been given to Mrs L’s best interests.
- I have considered the impact on Mrs L. The records show a Paid Representative visited Mrs L in April, May and June 2017 and wrote a report in late June 2017. The representative noted Mrs L had appeared to be settled and physically and emotionally stable during their two visits. A CCG Nurse wrote to the Council in the middle of July 2017 and noted they had met Mrs L monthly since the AAR meeting. The Nurse told the Council she did not have any concerns about that Mrs L was suffering any observable distress as a result of the lack of home visits, or because of the restrictions on Mr L’s visits to her in the Care Home.
- Therefore, on the basis of the evidence available to me, I cannot say the restrictions caused Mrs L any emotional distress. I will turn to Mr L’s concerns about physical consequences below.
- However, the restrictions were clearly a source of considerable stress and frustration for Mr L, and this is an injustice to him. The Council has noted that Mr L could have challenged the restrictions via the Court, and did not need the Council to make the application. There is some evidence in the file to show that Mr L was aware he could approach the Court directly. However, when Mr L asked the Council to refer the matter to the Court he was consistently told the capacity assessment and Best Interests meeting should happen first. Therefore, it is understandable that Mr L did not take this path. I am also aware that Mr L was able to visit the Care Home and see Mrs L. Nevertheless, he missed out on the home visits which he enjoyed. As such, I consider the stress and frustration Mr L suffered was a consequence of the fault I have found.
Complaint the Council failed to persuade the Care Home to remove the restrictions placed on him
- When the Council completed its complaint investigation, at the end of July 2017, it shared the outcome with the Care Home. The Care Home wrote back to the Council in early August 2017. It said it was concerned by the Council’s findings. The Care Home said it continued to feel that home visits were not in Mrs L’s best interests, and that the removal of Mrs L’s pubic hair was inappropriate. The Care Home said it would be happy to attend a Best Interests meeting about the issues. It said if this could not reach an agreement it felt the matter should go to the Court.
- After the Best Interests meeting in September 2017 Mrs L had two accompanied home visits in the first half of October 2017. Toward the end of November 2017 the CCG wrote to the Care Home and said it and the Council agreed unsupervised home visits should start again.
- Several days later the Care Home wrote back to the CCG and said it did not agree with the direction to recommence unsupervised home visits. It said, because of the nature of Mrs L’s condition, she needed the support of trained dementia staff at all times. Therefore, it said it considered it would be unsafe for her to go home without trained staff present. The Care Home said it was willing to take direction from the Court about these matters.
- A few days later the Council said it would try to mediate between all parties. However, an agreement could not be reached before Mrs L moved to a different care home toward the end of December 2017.
- The Care Home was entitled to express its views about concerns it had. In the face of the continued disagreement about Mrs L’s care it would have been appropriate to have escalate the matter to the Court. The Council said the case did not go to the Court because there were plans for Mrs L to move to another home. Given the date Mrs L moved to a different home and the likely time it would have taken for the Court to consider and rule on the case, I accept a referral at this late stage would have made any material difference. Therefore, I find no fault here.
Complaint about the Care Home’s attitude towards him and about the care provided to his wife including lack of physical activity
- The Ombudsmen do not have the resources to conduct forensic reviews of extended periods of care. Their role comes at the end of the complaints process and they expect complainants to have pursued complaints about specific failings (and injustice) through the local complaints process. Therefore, I have not attempted to make findings about the overall standard of care the Care Home provided to Mrs L. Instead, I have looked at the Council’s response to Mr L’s concerns about a lack of physical activity.
- In correspondence to the Ombudsmen the Care Home said it did ensure Mrs L had exercise. It said ‘Mrs L resided in a large residential unit within a vast building that houses an activity suite on the top floor and she moved around these area’s daily, went out for trips into the local area with staff and attended Sailability each week in the Spring/Summer months’.
- It its first complaint response, in June 2017, the Council said a number of professionals had visited Mrs L in April and May 2017. It said this included staff from the Council, a Nurse and a Paid Representative. The Council said they had all stated that Mrs L was well and being cared for appropriately.
- In the Council’s final complaint response it said Mrs L’s mobility had deteriorated but the Care Home had supported her with walking. The Council recognised the Care Home did not walk Mrs L as much as Mr L did when he visited on a regular basis. However, the Council said the restrictions did not prevent Mr L from visiting Mrs L at the Care Home on a daily basis.
- I consider the Council has provided a proportionate response to this issue, which is supported by the evidence. Mr L reports a considerable deterioration in Mrs L’s mobility over the course of the time when restrictions were in place. However, based on the evidence available to me, I have not found this was solely as a consequence of the fault I have found (in regard to how restrictions on visiting were put in place).
- Within three months of the final decision the Council should share the learning from this case with relevant staff (i.e. those that work on safeguarding cases). The Council should reiterate the importance of always following MCA principles during safeguarding enquiries, and the need to keep clear documentation to explain any deviations from usual processes or timescales.
- The Council should provide evidence that it has completed this actions to the Ombudsmen.
- At the draft stage I recommended the Council should write to Mr L to acknowledge the faults that occurred and apologise for the stress and frustration this caused to Mr L. I also recommended the Council should make a payment of £500 to Mr L, to serve as a symbolic, tangible acknowledgement of that distress its faults led to. The Council agreed to these recommendations. However, Mr L explained that he did not want an apology and did not want to receive a payment out of taxpayer’s monies. As such, I have removed these recommendations.
- I have completed my investigation on the basis that there was fault in the Council’s actions which led to an injustice.
Investigator's decision on behalf of the Ombudsman