Summary: Mr X complained on behalf of his father, Mr D. Mr X complained the Council failed to safeguard Mr D following a mental health assessment and as a result he attempted suicide. The Council was not at fault. It considered the Community Psychiatric Nurse’s assessment of Mr D, carried out a needs assessment and arranged a care package. The Council could not have foreseen or prevented Mr D from attempting suicide prior to the care package beginning. The Council was at fault for a delay in handling Mr X’s complaint and for a lack of detail in Mr D’s risk assessment, which did not cause an injustice.

The complaint

1. Mr X complained on behalf of his father, Mr D. Mr X complained the Council failed to safeguard Mr D between in October 2017, and as a result he tried to take his own life. Mr X said the matter caused both Mr D and the wider family significant distress.

Back to top

What I have investigated

2. Mr X also complained a care home charged Mr A two months’ worth of fees when Mr D was in hospital because the Council told it to keep the bed open. Mr X said the matter would cause significant financial loss to Mr A should he have to pay the fees. I have investigated Mr X’s complaint that the Council failed to safeguard Mr D. I have not investigated Mr X’s complaint about care fees for the reason explained in paragraph 36.

Back to top

The Ombudsman’s role and powers

3. 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 an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
4. We investigate complaints of injustice caused by ‘maladministration’ and ‘service failure’. I have used the word ‘fault’ to refer to these. We cannot question whether a council’s decision is right or wrong simply because the complainant disagrees with it. We must consider whether there was fault in the way the decision was reached. (Local Government Act 1974, section 34(3), as amended)
5. If we are satisfied with a council’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)
6. We have the power to start or discontinue an investigation into a complaint within our jurisdiction. We may decide not to start or continue with an investigation if we think the issues could reasonably be, or have been, raised within a court of law. (Local Government Act 1974, sections 24A(6) and 34B(8), as amended)
7. We investigate complaints about councils and certain other bodies. We cannot investigate the actions of bodies such as the National Health Service. (Local Government Act 1974, sections 25 and 34A, as amended)

Back to top

How I considered this complaint

8. I spoke to Mr X about his complaint.
9. I considered the Council’s response to my enquiry letter.
10. Mr X and the Council had an opportunity to comment on my draft decision. I did not receive any specific comments from either Mr X or the Council.

Back to top

What I found

Mental Capacity Act 2005

11. The Mental Capacity Act 2005 sets out five principles:
• A person must be assumed to have capacity unless it is established that they lack capacity.
• A person is not to be treated as unable to decide unless all practicable steps to help them to do so have been taken without success.
• A person is not to be treated as unable to decide merely because they make an unwise decision.
• A decision made on behalf of a person who lacks capacity must be made in their best interests.
• Before deciding, the decision maker must have regard to the option least restrictive of the person’s rights and freedom of action.
12. The Act also says the test of someone’s capacity to decide is on the balance of probabilities and is decision and time specific. When someone is making a decision on an incapacitated person’s behalf, and in their best interests, they must take into account the person’s wishes, feelings, beliefs and values and those of family and friends.
13. The test of capacity involves assessing a person to see whether they can:
• Understand the relevant information including the likely consequences of making, or not making the decision.
• Retain the information.
• Use or weigh the information as part of the decision-making process.
• Communicate their decision.
14. In deciding whether it is necessary to detain patients, doctors and Approved Mental Health Professionals (AMHPs) must always consider alternative ways of providing the treatment or care they need. Decision-makers should always consider whether there are less restrictive alternatives to detention under the Act, which may include:
• informal admission to hospital with the patient’s consent
• management in the community for example by a crisis and support team.

Assessment of needs

15. Under the Care Act 2014, Councils must assess anybody in their area who appears in need of care services. Following an assessment the Council must decide which needs are eligible for its support. If the Council provides support it must produce a written Care Plan.
16. The Care and Support (Eligibility Criteria) Regulations 2014 sets out the eligibility threshold for adults with care and support needs and their carers. The threshold is based on identifying how a person’s needs affect their ability to achieve relevant outcomes, and how this impacts on their wellbeing. To have needs which are eligible for support, the following must apply:
1. The needs must arise from or be related to a physical or mental impairment or illness.
2. Because of the needs, the adult must be unable to achieve two or more of the following:
1. Managing and maintaining nutrition;
2. Maintaining personal hygiene;
3. Managing toilet needs;
4. Being appropriately clothed;
5. Being able to make use of the adult’s home safely;
6. Maintaining a habitable home environment;
7. Developing and maintaining family or other personal relationships;
8. Accessing and engaging in work, training, education or volunteering;
9. Making use of necessary facilities or services in the local community including public transport, and recreational facilities or services; and
10. Carrying out any caring responsibilities the adult has for a child.
3. Because of not achieving these outcomes, there is likely to be, a significant impact on the adult’s well-being.

What happened

17. Mr D has dementia and lived at home with his wife. However in September 2017 his wife died. Mr D’s son and daughter, Mr X and Ms Y called the Council and asked it to urgently assess Mr D’s needs as they did not feel it was safe for him to live on his own. Ms Y said she and Mr X had tried to speak to Mr D about his care however he would become anxious and verbally aggressive. Ms Y said she and Mr X were unable to cope with caring for Mr D.
18. In October 2017, Ms Y called the Council again. She said she had waited for over a week for a response from the Council. Ms Y said Mr D was suicidal following the death of his wife and it was not safe to leave him on his own. Ms Y said she and Mr X had arranged for Mr D to go into a short term respite care home so they could sell his house to pay for longer term residential care. However, Ms Y said Mr D had refused to go to the care home and had threatened to kill himself. The Council said it would contact the NHS’s mental health services to assist and assess Mr D’s mental wellbeing. The following day an NHS Community Psychiatric Nurse (CPN) visited Mr D to assess him. The CPN said Mr D was no longer suicidal. They said Mr D was mentally stable but confused and at risk of wandering and falls. The CPN said Mr D should not be left alone at night. The CPN said there was need to take no further action with Mr D and he was not suitable for detention and did not lack capacity.
19. Following the CPN’s assessment, the Council asked Mr X and Ms Y to look after Mr D for the evening as it was unable to source overnight care at such short notice and without Mr D having undergone the relevant risk and needs assessments. The Council said it would assess Mr D’s care needs and risks the following day with a view to arranging care for him. Both Mr X and Ms Y were unable to look after Mr D that night so the Council notified its out of hours services and the police about Mr D’s circumstances and the potential that he may wander out of the house.
20. The next day the Council visited Mr D and carried out a care needs and risk assessment. The needs assessment showed Mr D made a slicing motion across his neck, indicating that was what he would do if anybody made him go and live in a care home. The needs assessment showed Mr D required help with his personal care, nutrition, maintaining the home and dressing appropriately. Both Mr X and Ms Y agreed to continue supporting Mr D at weekends and with his finances. It showed Ms Y had installed a video doorbell so she could monitor Mr D if he left the house. The Council decided it could meet Mr D’s needs by him remaining at home and providing him with an appropriate package of morning and evening calls.
21. 5 days later Mr X and Ms Y informed the Council that Mr D had tried to kill himself. They said they visited Mr X at 9am and found he had cut his wrists and his throat, and the air ambulance had taken him to hospital. The case records showed Mr D remained in hospital until November 2017 and was then detained and transferred to a care home under the Mental Health Act.
22. In January 2018 Mr X complained to the Council. Mr X said the Council failed to safeguard Mr D and asked for a review of how it handled the matter. Mr X said the Council made no contact with him or Ms Y between 4 October and 9 October following the needs and risk assessment.
23. The Council responded to Mr X in April 2018 and apologised for the delay. The Council said the CPN found Mr D had capacity. It said it assessed Mr D’s needs the following day and then developed a care plan for morning and evening support. The Council said it should have kept Mr X and Ms Y informed of the progress of setting up the care services however the care provider was unable to start the package until 10 October. The Council apologised for not passing that information onto Mr X or Ms Y, however said its staff did not fail in their roles.
24. Mr X complained to the Council again in June 2018. He said the CPN passed responsibility back to social care. Mr X said Mr D was under the Council’s care between 3 October and 10 October. Mr X reiterated his request for a full review into the matter.
25. The Council wrote back to Mr X in August 2018 with its final response and said it had carried out a Senior Manager Review (SMR). The review looked at whether the Council had acted appropriately in line with its duty of care. The Council found a number of learning points for individual officers. The Council said the social worker completing who completed the needs assessment should have explored Mr D’s ‘hand across the neck’ motion in more detail and should have recorded that on the risk assessment. The Council also found the social worker should have consulted with mental health services following Mr D’s suicidal thoughts. The review found Council management should have explored the option of a short-term placement further. However, the review concluded the Council acted appropriately and could not have prevented the incident. It said it could not have predicted that Mr D would attempt suicide which the CPN’s assessment supported as they did not identify any risks.
26. Mr X remained unhappy with the Council’s response and complained to the Ombudsman.

My findings

27. Following Ms Y’s approach to the Council for help with Mr D, it asked the NHS’s mental health team to assess him. The CPN’s professional opinion was Mr D had mental capacity, was no longer a suicide risk and therefore they would take no further action. The CPN said Mr D should not be left alone at night following their assessment, however there were no risk assessments in place for Mr D therefore it was not appropriate to place a night sitter with him. The records show the Council liaised with Mr X and Ms Y, and notified its out of hours service and the police about Mr D’s circumstances. There is no evidence the social worker considered seeking Mr D’s view about short term care, nor any evidence that they discussed the risks of staying at home alone. While it would have been good practice to do that, given Mr D had already refused residential care and made his feelings clear about the matter I do not consider it fault. The Council took appropriate steps following Mr D’s mental health assessment and was not at fault.
28. Following Mr D’s mental health assessment, the Council’s responsibility was to assess Mr D’s needs and eligibility criteria which it did the following day. The needs assessment showed he did not meet the criteria for 24-hour support. The needs assessment identified Mr D needed assistance however he was mobile, able to wash and dress himself with minimal support, and did not need help throughout the night. Following Mr D’s needs assessment on 4 October, the Council arranged a package of care which enabled Mr D to remain at home. The Council was not at fault.
29. During Mr D’s needs assessment, he gestured to the social worker that he would self-harm if anybody sent him to live in a care home. The social worker recorded the gesture within the needs assessment but not in the risk assessment. There is also no evidence the social worker discussed or explored the gesture further with Mr D as part of the assessment. That was fault, as the care provider would have used the risk assessment when started caring for Mr D and would not have had the relevant risks recorded within it. However, as the care provider did not start providing Mr D with care, the fault result in any injustice.
30. The records showed the care provider could not start providing its service until 10 October 2017, six days after his assessment. That is not an excessive delay, however the records showed the Council did not communicate that delay to Mr X or Ms Y which caused them uncertainty. While not fault, it is good practice to communicate key dates and actions in circumstances such as this. The Council acknowledged that and apologised to Mr X in its complaint response.
31. Mr D attempted suicide on 9 October 2017, the day before his care package was due to start. While it was distressing and traumatic circumstances it is not something the Council could have foreseen or prevented. The CPN’s opinion was Mr D was no longer suicidal and had capacity to make his own choice about where to live. The Council considered that opinion, and then carried out Mr D’s needs assessment in line with the relevant guidance and arranged an appropriate care package. The Council was not at fault.
32. Mr X complained to the Council at stage 1 in January 2018, however the Council did not respond until April 2018. That was fault and the delay caused Mr X and Ms Y frustration and uncertainty.

Agreed action

33. The Council agreed within one month of the final decision to:
• apologise to Mr X and pay him £100 in recognition of the frustration and uncertainty caused by its delay in handling his complaint.
• remind all staff who carry out social care needs assessments about the importance of including gestures or thoughts of self-harm in their risk assessments.

Back to top

Final decision

34. I have completed my investigation. I have found fault causing injustice and the Council agreed to my recommendations.

Back to top

Parts of the complaint that I did not investigate

35. I did not investigate Mr X’s complaint about care fees because he was already pursuing the matter in court.

Back to top

Investigator's decision on behalf of the Ombudsman