Decision Date: 12th July 2021
What Happened
Mrs X complained on behalf of her mother, Mrs Y.
Mrs X had power of attorney for Mrs Y’s health and welfare, and property and finances.
Before discharge in May 2020 from hospital, after the pandemic was acknowledged, and after an unrelated fall, it was decided by the council and a hospital working under Covid guidelines that it would be in Mrs Y’s best interests to move to a care home temporarily whilst a decision regarding longer term care could be made.
She was discharged to Care Home A on 7th May 2020. The NHS paid for the care, because this was a Covid discharge from hospital, and this was the government’s policy at the time, to speed people out of hospital to make space for sick people. Her family would have preferred Care Home B, but it was not accepting new residents at that time.
On 11th May, Mrs Y’s family told the Council that she would want to return home and sought advice on how this could be achieved. The Council said it would assign a Social Worker to assess Mrs Y’s needs.
Care Home A applied for a Deprivation of Liberty Safeguards (DoLS) authorisation, as per the rules.
On the 13th May Care Home A notified the Council that Mrs Y would stay in its residential unit, but may benefit from moving to its dementia unit. As Mrs Y did not have a formal diagnosis of dementia the Care Home stated it would contact her GP to organise an assessment.
On 14th May the Social Worker told Mrs X she had enough information to write a care plan. Everyone agreed that the risk of harm if Mrs Y were to return home was too great, so she would need to continue receiving residential care.
On the 20th May a care plan was produced, which provided for two-hourly checks throughout the night and day.
The Council discussed the possibility of Mrs Y returning home if she had a live-in carer. The family noted that although over the capital threshold for financial subsidy for care at home, Mrs Y did not have enough capital to fund that sort of care, in full, for very long.
The family suggested a move to sheltered accommodation, however Care Home A stated that this was not appropriate as she needed 24 hour care. They stated that they had submitted an urgent application for a DoLS because Mrs Y had repeatedly ‘wandered off’ (she had attempted to leave the home twice).
Mrs Y’s family told the Council they wanted her to move to Care Home B, which now had a vacancy. Mrs Y moved to Care Home B on 25th June. On 24th August the Council told Mrs X it had authorised a DoLS for Mrs Y until 19 August 2021.
Mrs X complained to the Council on 15th July about the care Mrs Y received at Care Home A. Mrs X said her mother did not settle at Care Home A, reflected in her attempts to leave, and put this down to poor care. She said Mrs Y quickly settled at Care Home B.
The Council replied to the complaint, stating:
- No concerns about care home A had been raised and it received regular updates from the Manager;
- Mrs Y’s Social Worker had responded to communications from one of Mrs X’s siblings, whom it had treated as the family contact. The Social Worker recalled no conversations about Mrs Y moving to sheltered accommodation;
- the Social Worker did not think she had pushed for Mrs Y to stay in residential care, but apologised if that is what came across;
- the Social Worker had supported the move to Care Home B;
- the Best Interests Assessor had not followed the correct procedure over the DoLS, but there was no evidence the Social Worker (it is not clear whether this was referring to the BIA?) had acted improperly over the process.
The Council said the Best Interest Assessor:
- should have consulted Mrs X but failed to do so;
- did not clearly explain why Mrs Y met the criteria for a DoLS;
- did not tell Mrs X what her rights were or on what basis the process could be stopped.
The Council asked another Best Interest Assessor to review the assessment of Mrs Y’s mental capacity and other assessments, to correct the faults. The Council apologised to Mrs X for its failings.
Mrs X remained unsatisfied with the Council’s reply and complained to the LGSCO.
What was found
The Council was at fault for failing to involve Mrs X or other family members in the DoLS process. The LGO stated that the Council had sufficiently apologised and taken steps to rectify its fault.
The LGO stated that Care Home A was not at fault for applying for a DoLS, as it would have been illegal for Mrs Y to remain in residential care without a DoLS.
The LGO stated that there was no evidence that Care Home A did not meet Mrs Y’s needs.
The LGO also highlighted that there was nothing to suggest that the Council made it difficult to move to Care Home B. She moved within two weeks of the vacancy and the family requesting the move. Neither was there any evidence that the Council prevented the family from exploring further options for care such as sheltered accommodation.
The LGO therefore concluded that although the Council was at fault, regarding the DoLS process, it had already remedied the injustice caused by apologising.
Points for the public and councils – and law firms operating in the s21A MCA space in the Court of Protection
If Mrs X had gone to the Court of Protection about this, it would have been unlawful detention that the council was responsible for.
The LGSCO knows this to be the law. The report says this
- The DoLS is an amendment to the Mental Capacity Act 2005 and came into force on 1 April 2009. The 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 care homes and hospitals to apply for authorisation.
We find it worrying that the LGSCO investigator says nothing about the underlying legal position that the supervisory body which ratifies the DoLS (also the council that was complained to, here) has an obligation to spot and ‘police’ obviously ‘rubbish’ Best Interests Assessments. It is bound by a valid BI assessment, and cannot ignore one that says it IS in the best interests of a person to be deprived of their liberty, or is NOT. But the supervisory body can and should refuse to accept the legitimacy or validity of the assessment in the first place if it cannot pass muster, regarding the essential elements of the purpose of the scrutiny.
However, it was probably not thought worth it by the family, or worth suggesting that the family take those steps, on the part of the LGSCO, because the courts have made it clear that they will not award damages under the Human Rights Act for what is regarded as a ‘technical’ breach as opposed to a heinous or substantive breach of the DoLS system.
If someone is clearly lacking in capacity and clearly needing to be deprived of their liberty and there is nothing oppressive about it, that is regarded as a technical breach.
We think that that is understandable but that it does rather make a mockery of the provisions and their centrality to lawful care planning, pandemic, or no pandemic.
If there is no risk of a financial remedy being awarded for ignoring the rules, then it is going to be impossible to enforce proper compliance, in practice, in our experience.
That is another example of the will of Parliament simply being ignored by the Treasury and the DHSC in this country, on the grounds of cost.
We think that the Courts and the LGSCO should be thinking about how it can possibly come ABOUT that councils engaging or employing BIAs either don’t know the law or operate under it properly, when there is also a duty to ensure competence and sufficiency of the number of staff, by all such councils having social services obligations. If the BIA was not an employee of the council here, they needed to be put right on their practice, urgently. The social worker who WAS employed by the council, and concerned with care planning, ought to have been able to spot that the BIA’s input had not been legitimate delivered.
We fear that this sort of exclusion from consultation of best interests consultees (family members and anyone interested in the person’s welfare, under s4 of the MCA) is common.
In this report there is some attention given to the view of those with welfare decision-making authority (the family members with welfare power of attorney) that Mrs Y should not have been placed in residential care. If that was a view that was maintained, then they could have asserted a Refusal under the ‘No refusals’ part of DoLS process, and blocked the placement, but that would not have been sufficient to compel the council to fund care at home.
That decision is taken under the Care Act, and the refusal of a placement by a welfare attorney, although it stands as the refusal of the person him or herself, can never be sufficient to FORCE a council to fund care in a setting that it is not willing to offer. That is public law, and that is separate from the decisions taken around the care planning aspect of meeting needs, once a care home is regarded as therapeutically at least not Inappropriate for someone’s care package.
In another completely unrelated report by CQC recently, regarding a care home looking after younger people an unannounced inspection recorded as follows, which findings might to be taken to indicate MORE than a merely technical breach:
“It was unacceptable to find that restrictive practices were being used without the necessary legal authorisation. People were locked in their bedrooms, their water supply was cut off and inspectors saw one person being unlawfully restrained by staff.
“People’s rights were clearly not being respected and the service had a closed culture where people weren’t supported to live freely from unwarranted restrictions.
“The service has breached regulations relating to consent, safeguarding, improper treatment and good governance, but we have been assured by management that door locks have now been removed and people are able to move freely around their home.”
The full Local Government Ombudsman report of City of York Council’s actions can be found here
https://www.lgo.org.uk/decisions/adult-care-services/covid-19/20-008-734