Summary: We uphold two of the complaints. The Council is at fault because (1) an officer kept no record of a discharge meeting where what was said or agreed at the meeting is in dispute and (2) the Council did not take enough action to ensure it received a properly completed application to authorise a deprivation of liberty. The fault caused Mrs L and her son Mr K avoidable distress. The Council will apologise and make them symbolic payments to recognise their distress.

The complaint

1. Mr K complains Kent County Council (the Council) is at fault in the way it managed his mother Mrs L’s case. He complains about:
1. A social worker attending a discharge meting against their wishes
2. The response to a Deprivation of Liberty Safeguards (DOLS) application from a hospital
3. The response to safeguarding concerns from a member of the public and from the NHS rapid response team
4. Mrs L’s assessment for social care services (enablement) against their wishes.

2. Mr K says the Council’s actions caused or contributed to his mother being unlawfully deprived of her liberty. He says this caused him and Mrs L avoidable distress.

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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. 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)

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How I considered this complaint

5. I considered the complaint to the Ombudsman, documents referred to in the next section of this statement. I discussed the complaint with Mr K. I also considered comments from Mr K and the Council on drafts of this statement
6. Mr K 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

Relevant law and guidance

7. A council must carry out an assessment for any adult with an appearance of need for care and support. (Care Act 2014, section 9)
8. Intermediate care is a structured programme of care provided for a limited time to help a person maintain or regain the ability to live independently. Reablement is a type of intermediate care which helps the person regain skills and reduce their needs through providing services in the home. The terms reablement, rehabilitation and intermediate care are often used interchangeably and can be provided by an NHS trust, a council or a joint NHS and council team. (Care and Support Statutory Guidance (CSSG) Paragraphs 2.12 to 14)
9. 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)
10. The Mental Capacity Act and Code of Practice to the Act sets out the principles for making decisions for adults who lack mental capacity. An assessment of a person’s mental capacity is required where their capacity is in doubt. (Code of Practice to the Mental Capacity Act 2005, paragraph 4.34)
11. A person lacks mental capacity to make a decision if they have a temporary or permanent impairment or disturbance of the brain or mind and they cannot make a specific decision because they are unable:
• To understand and retain relevant information or
• Weight that information as part of the decision-making process or
• Communicate the decision (whether by talking using sign language or other means.) (Mental Capacity Act 2005, section 3)
12. The Deprivation of Liberty Safeguards (DOLS) protect 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 by a ‘standard authorisation.’ The care home or hospital (called the managing authority) applies to the DOLS team in the council (called the supervisory body which carries out an assessment to decide whether to approve the authorisation. A managing authority can grant itself an urgent authorisation for up to seven days to allow for completion of a standard authorisation. The supervisory body may extend an urgent authorisation up to a total of 14 days.
13. Schedule 1A to the Mental Capacity Act 2005 sets out detailed rules for managing authorities and supervisory bodies acting within the DOLS framework. Part 5 deals with urgent authorisations:
• Only the managing authority may give an urgent authorisation to last up to seven days and only where they have made or are required to make a request for a standard authorisation and the person needs to be detained until the supervisory body can complete a standard authorisation. (paragraphs 74 to 78)
• The managing authority can ask the supervisory body to extend the urgent authorisation for a further seven days. The supervisory body can only grant an extension if there has been a request for a standard authorisation, there are exceptional reasons for this not being dealt with and it is essential that the person is detained. (paragraph 84- 85)
• The supervisory body can decide not to extend the urgent authorisation and if this is the case, it should explain why (paragraph 86)
14. The Deprivation of Liberty Safeguards Code of Practice to supplement the main Mental Capacity Act Code of Practice (the DOLS Guidance) describes action for the supervisory body to take when it receives an application. It says the supervisory body should, as soon as practical and possible consider whether the request is appropriate and should be pursued and seek any further information it needs from the managing authority to help it with the decision (paragraph 3.17)
15. The DOLS Guidance goes on to say that unless the urgent authorisation is extended or a standard authorisation is granted, authority for the deprivation of liberty ceases. Good communication between the managing authority is necessary during the process. (paragraph 6.21)

What happened

16. Mrs L lives at home with Mr K. She has dementia and he is her sole carer. Mrs L went into hospital following a fall at home. The hospital completed a DOLS Form 1 on 22 February 2019. This from granted an urgent authorisation for seven days and requested the Council grant a standard authorisation once the seven days expired. The form had little information on it other than Mrs L’s basic personal details and her medical history. The following key sections of the form are blank:
• The section to complete to explain the purpose of the standard authorisation, details of the care and treatment received and description of the care plan
• The section to describe the restrictions on Mrs L’s liberty
• The section where the managing authority requests an extension to the urgent authorisation.
• The sections giving contact details of Mrs L’s family, friends or other significant people involved in her life.
17. An officer from the Council’s DOLS team contacted the hospital on the same day and asked the member of staff to complete the Form 1 fully. The hospital did not respond and there is no record of the DOLS team chasing this up.
18. The hospital referred Mrs L to the NHS rapid response team which provides care at home to people following an admission to hospital.
19. In the last week of February, the hospital arranged a discharge meeting with NHS staff, Mr K and Mrs L. The Council initially told me there was no record of any of its staff being involved in a discharge meeting. Mr K told me a council officer attended the meeting. He described her appearance and told me:
• He made it clear in the corridor before the meeting that he did not want the council officer at the meeting
• She took notes on a pad throughout
• He made it clear to everyone at the meeting that he did not want the rapid response team to be involved in Mrs L’s care.

Mr K also provided me with a complaint response from the NHS which says a council officer was at the meeting.

20. The Council accepted an officer did attend the discharge meeting and told me the officer recalled attending. The Council told me the officer thought it was likely she did not stay for all the meeting, because of a conflict of timing and she ‘believes she was invited by the hospital staff to join the meeting in an advisory capacity as she happened to be on site at the time……. had she been aware Mr K or Mrs L did not want adult social care to be involved, she would not have attended.’
21. The hospital emailed the DOLS team on 3 March and advised Mrs L had gone home and so the application for a standard authorisation was no longer needed. A note on the Council’s DOLS case tracker indicates the hospital emailed the DOLS office to say Mrs L had been discharged and so the application could be closed.
22. Mrs L received support with personal care at home. This was delivered by a care agency on behalf of the NHS Trust’s rapid response team. The records indicate the agency delivered care for a number of weeks and then care stopped at Mr K’s request. The Council’s enablement at home service tried to assess Mrs L for social care. The records indicate Mr K said Mrs L did not want further care.
23. A member of staff from the rapid response team made a safeguarding alert to the Council. The alert form said there were concerns Mrs L lacked mental capacity to make decisions about her care and there was a need for her capacity to be assessed, but Mr K was refusing to let anyone see Mrs L. Mr K was reported to have said officers were bullying his mother into accepting care. A safeguarding officer noted she had spoken to Mr K in the first week of April to try and arrange a visit and he said if anyone turned up at his home he would call the police. The safeguarding officer told Mr K she would need to speak to Mrs L and she may need to come with the police.
24. The Council’s safeguarding team considered the safeguarding alert and decided to make further enquiries because there was concern Mr K may be preventing Mrs L from accessing health and social care support and her wishes may not have been taken into account. A safeguarding officer made the following enquiries:
• Contacted the rapid response team/care agency who reported carers had no concerns about Mrs L and that Mr K had always cared for his mother and she seemed happy and content.
• Contacted staff at the hospital who were concerned Mr K may be struggling to cope with looking after Mrs L and may be concerned about paying for her care.
• Checked with the Office of the Public Guardian to find out if Mrs L had a power of attorney registered.
25. The safeguarding officer and an advocate visited Mr K and Mrs L at home. Mr K said they were managing fine. Mrs L said she did not want carers and repeated this several times. The safeguarding officer’s note of the visit indicates she had no concerns about Mrs L’s welfare. The safeguarding officer noted there were no mental capacity issues and Mrs L understood the purpose of the visit, gave clear answers and was happy with the care Mr K was providing.
26. The Council closed the safeguarding enquiry recording no evidence of neglect. The closure record said abuse was discounted.
27. The Council received a second safeguarding alert at the start of June, from a local member of the public who had seen Mrs L sitting on a neighbour’s bench looking distressed.
28. The Council considered the alert and decided to make further enquiries. The same safeguarding officer visited Mr K and Mrs L with the advocate. Mr K asked the safeguarding officer if neighbours had a right to report matters to the safeguarding team and the officer said members of the public were free to report concerns and the Council would respond to reports as appropriate. Mr K said he felt the neighbour was harassing him. The Council decided not to take any further action and closed the safeguarding concern. The safeguarding officer informed Mr K by phone. The record said abuse was discounted.
29. Mr K spoke to an officer in the DOLS team at the end of June. He said his mother had been deprived of her liberty and she was objecting to being in hospital and his details were not on the DOLS paperwork. The officer explained they did not receive further information from the hospital and so took no action to process the DOLS assessment request. Mr K said he was going to complain.
30. Mr K complained to the Council directly and through his MP. The Council did not uphold his complaint, explaining it had dealt with safeguarding alerts through the correct process and found no evidence of abuse. Unhappy with the Council’s response, Mr K complained to the Ombudsman.

Was there fault and if so did it cause injustice?

Complaint a: An officer attended a discharge meting against their wishes

31. A council officer attended the discharge meeting but made no record. The failure to make a written record is poor administrative practice and is fault. Mr K told me he made it clear before the meeting that he did not want the officer there. The Council told me the officer would not have attended if this was against Mr K’s wishes but she made no written record and cannot recall any detail of the meeting. Relying on Mr K’s account, which is detailed, I am satisfied he made it clear before the meeting that he and Mrs L did not want the officer present. So, in line with what the Council told us should have happened, the officer should not have attended and so I conclude the Council is at fault. I consider the officer’s attendance at the meeting and the confusion and inaccurate statements from the Council about her attendance caused Mr L avoidable distress.

Complaint b: The response to a DOLS application from a hospital

32. On receiving the application, the DOLS team (the supervisory body) was required to consider whether the request for a standard authorisation was appropriate and whether it needed to seek further information from the managing authority (hospital) to help with the decision (DOLS Guidance, paragraph 3.17). The DOLS team asked the hospital to complete the Form 1 fully. This was an appropriate action and there is no fault in the initial response.
33. The Form 1 also noted a seven-day urgent authorisation was in place from 22 February. I consider the DOLS team should have noted this key date in the records and chased the hospital again by 1 March at the very latest for the missing information as this was the date the urgent authorisation expired. The failure to chase up the hospital a second time to ensure it provided a fully completed application is poor liaison and is fault because it is not in line with paragraph 6.22 of the DOLS Guidance. Paragraph 6.22 emphasises the importance of good communication by the supervisory body.
34. The effect of the failure to grant an extension to the urgent authorisation meant Ms L was deprived of her liberty for one day on 2 March. There is not enough evidence for me to say that had it not been for the fault, Ms L would have been able to leave hospital earlier than was the case. In practical terms, the failing in communication I have identified may not have made any difference to Mrs L’s circumstances and the unauthorised detention, although not in line with the procedural protection of the DOLS, was for a very short period.
35. The LGSCO has no power to investigate complaints about the NHS and so I have not commented on any potential failings by the managing authority (the hospital) in the DOLS process. This complaint is for the Parliamentary and Health Service Ombudsman.

Complaint c: The response to safeguarding concerns from a member of the public and from the NHS rapid response team

36. The Council has a duty to take appropriate action in response to information that an adult with care and support need may be at risk of abuse. The Council acted in line with section 42 of the Care Act 2014 and the principles of the Mental Capacity Act by making enquiries and visiting the family at home to establish Mrs L’s wishes, consider any risks and also consider if there were any mental capacity issues. Both safeguarding enquiries were closed with a finding of no abuse. As the Council followed section 42 of the Care Act, there is no fault.

Complaint d: Mrs L’s assessment for social care services (enablement) against their wishes.

37. The Council has a duty to assess the needs of a person who appears to need social care support. A person can of course refuse an assessment and can refuse care and support and this is what happened here. There is no fault in officers contacting Mr K and Mrs L to see if they wanted social care support from the Council once NHS services ended.

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Agreed action

38. The Council will, within one month of my final decision apologise for the distress to Mr K and Mrs L for the fault and distress I have identified and make them a symbolic payment of £100 each. This is in line with our published Guidance on Remedies and is a symbolic payment to reflect the short period that Mrs L was held without an authorisation and the avoidable confusion caused by poor record keeping of the meeting.
39. The Council has already discussed the discharge meeting with the officer involved and has reminded her to keep written records of all meetings in future.

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Final decision

40. I uphold two of the complaints. The Council is at fault because (1) an officer attended a discharge meeting and kept no written record where what was agreed at the meeting is in dispute and (2) the Council did not take enough action to ensure it received a properly completed application to authorise a deprivation of liberty. The fault caused Ms L and Mr K avoidable distress. The Council will apologise and make payments to recognise their distress.
41. I have completed the investigation.

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Investigator's decision on behalf of the Ombudsman