Devon County Council (21 011 227)

Category : Adult care services > Safeguarding

Decision : Not upheld

Decision date : 23 Mar 2022

The Ombudsman's final decision:

Summary: Mr X complained about the Council's handling of allegations about his care for his partner and its decision that his partner should receive care in a nursing home. I have ended my investigation because most of the issues Mr X complained about occurred too long ago. There was also insufficient evidence of fault, and we cannot achieve the outcome Mr X wants.

The complaint

  1. Mr X complained about the Council's handing of allegations about his care for his partner, Mrs Y. He also complained about the Council's decision that Mrs Y should remain in a nursing home instead of returning home.
  2. Mr X said this caused him significant distress and caused Mrs Y’s death at the nursing home. Mr X wants a court to hear the allegations made against him because he feels they are false.

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The Ombudsman’s role and powers

  1. The Ombudsman investigates complaints about ‘maladministration’ and ‘service failure’, which we call ‘fault’. We must also consider whether any fault has had an adverse impact on the person making the complaint, which we call ‘injustice’. We provide a free service, but must use public money carefully. We do not start or may decide not to continue with an investigation if we decide:
  • there is not enough evidence of fault to justify investigating, or
  • we cannot achieve the outcome someone wants, or
  • there is another body better placed to consider this complaint

(Local Government Act 1974, section 24A(6))

  1. We cannot investigate late complaints unless we decide there are good reasons. Late complaints are when someone takes more than 12 months to complain to us about something a council has done. (Local Government Act 1974, sections 26B and 34D, as amended)
  2. The law says we cannot normally investigate a complaint when someone could take the matter to court. However, we may decide to investigate if we consider it would be unreasonable to expect the person to go to court. (Local Government Act 1974, section 26(6)(c), as amended)

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How I considered this complaint

  1. I have considered:
    • all the information Mr X provided and discussed the complaint with him; and
    • the Council’s comments about the complaint and the supporting documents it provided and the relevant law and guidance.
  2. Mr X 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

Needs assessments

  1. Sections 9 and 10 of the Care Act 2014 require councils to carry out an assessment for any adult with an appearance of need for care and support. They must provide an assessment to everyone regardless of their finances or whether the council thinks the person has eligible needs.

Mental capacity

  1. 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. An adult must be presumed to have capacity to make a decision unless it is established they lack capacity. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.

Best interest decision making

  1. 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.
  2. If there is a conflict about what is in a person’s best interests, and all efforts to resolve the dispute have failed, the Court of Protection might need to decide what is in the person’s best interests.

Court of Protection

  1. The Court of Protection can:
    • make declarations, decisions or orders on financial or welfare matters affecting people who lack capacity to make such decisions; and
    • make decisions about when someone can be deprived of their liberty under the Mental Capacity Act.

Deprivation of Liberty Safeguards (DoLS)

  1. 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.
  2. 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.

Safeguarding

  1. A council must make enquiries if it has reason to think a person may be at risk of abuse or neglect and has care and support needs which mean the person cannot protect themself. An enquiry is the action taken by a council in response to a concern about abuse or neglect. An enquiry could range from a conversation with the person who is the subject of the concern to a more formal multi-agency arrangement. A council must also decide whether it or another person or agency should take any action to protect the person from abuse. (section 42, Care Act 2014)

What happened

  1. Mrs Y had Parkinson’s and dementia. In 2018, the Council assessed Mrs Y and decided she did not have capacity to decide about her care or where she should live. It carried out a needs assessment which found she had significant needs for care. It decided she should live in a nursing home in the short-term and placed her in Home A.
  2. In February 2019, Home A made a safeguarding referral to the Council. The referral said Mr X had put Mrs Y at risk by feeding and moving her in an unsafe way. The Council held a strategy meeting and decided to hold a best interests meeting given Mr X wanted to move Mrs Y home. It decided Mrs Y should stay in Home A long-term and put in a risk management plan for Mrs Y’s contact with Mr X.
  3. In September 2019, Home A made another safeguarding referral. It said a resident had seen Mr X touching Mrs Y inappropriately. The Council asked the Police to investigate, who decided not to take any action. Because Mr X continued to say he wanted Mrs Y to live with him, the Council decided to reassess Mrs Y’s needs. It then held another best interests meeting to decide where she should live. The best interests meeting confirmed the decision that Mrs Y needed to live in a nursing home long-term. The Council agreed Mrs Y could move to a home nearer to Mr X to facilitate their contact.
  4. Mrs Y moved into Home B in December 2019. Home B made a safeguarding referral to the Council in March 2020. It raised concerns including that Mr X tried to affect Mrs Y’s medication schedule and again moved and fed her in risky way.
  5. In May 2020, the Council applied for a DoLS to begin in May 2020. Mr X feels the Council applied for the DoLS to prevent him moving Mrs Y home.
  6. In June 2020, as part of its safeguarding enquiry, the Council held a meeting with Mr X and suggested restrictions on his contact with Mrs Y. Mr X did not agree to the Council's proposal.
  7. Because Mr X was still keen to move Mrs Y home with him and would not agree to its contact restrictions, the Council applied to the Court of Protection. It asked the Court to decide whether it had acted in Mrs Y’s best interests in placing her in Home B and also asked the Court to make an order or declaration restricting Mr X’s contact with Mrs Y.
  8. Mrs Y died in early March 2021 before the Court heard the Council's case.
  9. Mr X contacted the Council and Care Quality Commission in August and September 2021. He said:
    • he felt the Council was responsible for Mrs Y’s death because it had placed her in Home B. He felt staff had insufficient training in Parkinson’s and would not listen to his views on her care;
    • Home B had changed Mrs Y’s Parkinson’s medication schedule on the advice of a doctor at the hospital and that had negatively affected her health;
    • he felt the Council had raised safeguarding allegations against him to prevent him bringing Mrs Y home. He felt it applied for the DoLS for the same reason.
  10. The Council responded in early September to say it was satisfied it had followed the correct process and acted in Mrs Y’s best interests. It said there was no evidence Home B was responsible for Mrs Y’s death. It said the Court of Protection was best placed to address Mr X’s concerns.
  11. Mr X told me his solicitor said the Council was required to make an application to the Court of Protection as part of the safeguarding process. He said that is why he did not make an application himself. He also said Mrs Y died while suffering from dehydration and malnutrition due to Home B’s poor care.

My findings

  1. The Ombudsman expects people to complain within 12 months of becoming aware of an issue. Mr X complained about the entire period from the date Mrs Y moved into Home A. This included the decision to place Mrs Y in a nursing home in 2018 and the subsequent decisions that she should remain in one in 2019 and early 2020. It was open to Mr X to complain to us sooner and I have seen no reason to exercise discretion to investigate the period before October 2020, a year before Mr X complained to us.
  2. In any event, there is insufficient evidence of fault in the Council's actions. The Council followed the correct process in assessing Mrs Y’s needs and capacity in 2018. It decided she had significant needs for care and support and did not have capacity to decide where she should live. It therefore placed her in Home A. In 2019 and 2020, Home A and Home B made safeguarding referrals about Mr X’s behaviour around Mrs Y. While Mr X feels the allegations were false and made to prevent him returning Mrs Y home, the threshold for investigating a safeguarding referral is low. The Council has a duty to make enquiries where it has reason to think a person with care needs is at risk of neglect or abuse. The Council acted appropriately by investigating and considering what actions it should take to protect Mrs Y. This included putting restrictions on how Mr X could have contact with her.
  3. The Council also acted appropriately in responding to Mr X’s view that it was not in Mrs Y’s best interests for her to live in a nursing home. It held best interests meetings and applied for DoLS to ensure the limits placed upon Mrs Y were the least restrictive option. When Mr X would not agree Mrs Y should stay in the nursing home or agree to the contact restrictions the Council felt necessary to protect her, it applied to the Court of Protection. As this was the correct process, I am unlikely to find fault with the Council.
  4. In addition, the Ombudsman normally expects people to use a right to go to court where that route is available. While Mr X said his solicitor told him the Council would need to take Mrs Y’s case the Court of Protection, it was also open to him to do so. The Court of Protection was the body best placed to resolve Mr X’s concerns about Mrs Y’s welfare in the nursing homes, where she should live, and what contact he should have with her. It was reasonable for Mr X to have applied to the Court of Protection at the time.
  5. Mr X also said Home B failed to care for Mrs Y properly. He said it wrongly altered Mrs Y’s medicine schedule, staff were poorly trained in Parkinson’s, and he feels she died while suffering from malnutrition and dehydration. The decisions regarding Mrs Y’s medication were made by medical professionals and we cannot investigate their actions. In addition, If I was to find fault, the injustice would be to Mrs Y. The role of the Ombudsman is to remedy injustice to put a person back in the position they would have been had the fault not occurred. As Mrs Y has died I cannot achieve a remedy for any injustice caused to her.
  6. Finally, Mr X said he wants a court to hear the allegations against him. That is not within the Ombudsman's powers so I cannot achieve his desired outcome.

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Final decision

  1. I have ended my investigation. There is insufficient evidence of fault, it was open to Mr X to complaint to us sooner and we cannot achieve Mr X’s desired outcomes.

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Investigator's decision on behalf of the Ombudsman

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