Decision Date: 28 March 2023
What happened
Ms B complained that the Council did not facilitate a move for her mother, Mrs C, from a residential care home back to her own home. She further complained that the Council failed to authorise Mrs C’s stay in the care home under the Deprivation of Liberty Safeguards (DoLS) for 15 months and that it failed to undertake proper decision making under the Mental Capacity Act 2005.
In December 2019, the Council arranged for Mrs C to move to a care home for a short-stay following concerns about her safety at home. Mrs C lived with Alzheimer’s disease and cameras installed in her home had recorded her walking without purpose during the night and she had been leaving the property and knocking on neighbours’ doors appearing confused.
Mrs C’s husband, Mr C, was in a nursing care home and Social Workers and Ms B did not feel Mrs C was safe living at home alone.
During the first week of this placement, the Council completed a mental capacity assessment to determine whether Mrs C had capacity to decide where her care needs should be met; she was found unable to make this decision. At the same time, the care home applied to the Council’s Supervisory Body to authorise Mrs C’s placement under a DoLS (both urgent and standard authorisations were requested simultaneously).
The Council noted in its assessments that from the outset of Mrs C’s placement that Ms B wanted to arrange for both of her parents to return to their home with a package of care, however, Mrs C’s Social Worker recorded concerns about whether this would be safe, or realistic.
In January 2020, Mrs C returned home for a planned stay of two weeks, which the Council viewed as a ‘trial’ to see if this was a viable option long term, but this stay only lasted a week. Ms B cited the reason for this being building disruptions: a wet room was being installed in the downstairs of Mrs C’s house.
At the beginning of February 2020, Mr C sadly passed away. Mrs C returned home for a short time before the funeral and was supported by Ms B. At this time Ms B and the Council discussed options for supporting Mrs C at home and the Council agreed that Mrs C could receive direct payments to fund a personal assistant (PA) to support her at home. At the beginning of March 2020, a potential PA was identified but the appointment did not go ahead. This coincided with the start of the COVID-19 pandemic and ‘lockdown’ restrictions.
In April 2020 Mrs B advised the Council she wished to apply to become Mrs C’s deputy and requested support in completing the forms, this was refused as it was not something the Council offered support with.
At this time, the also Council informed Ms B that as no progress had been made with plans for Mrs C to return home, a long-term placement would be arranged [at the same care home] with the Social Worker noting that ‘’when there is a robust plan in place, she [Mrs C] could return home in future’’. Around this time a second capacity assessment was completed, finding that Mrs C could not consent to receiving long-term care. This assessment wrongly recorded that a DoLS authorisation was in place (the urgent one having long since expired).
Ms B approached the Council again in August 2020 to discuss plans for Mrs C to return home. This was still Ms B’s preferred option, but plans had been put on hold due to the COVID-19 pandemic.
In December 2020, Ms B approached the Council again to plan for moving Mrs C back home and advised that she was recruiting once more for a PA. An online meeting was held to discuss this, but the Social Worker halted the meeting when Ms B invited a friend to attend the meeting without Mrs C’s consent. The rationale for this was that Mrs C could not consent to her information being shared with this friend.
Shortly after this, Ms B emailed the Council with additional details of what she proposed and advised that she was going to pursue becoming Court Appointed Deputy for Mrs C and enquired whether this needed to be done before any future plans could be put in place. She also said: ‘’we have to iron out the detail first, so I am not rushing into this arrangement – it has to be right’’.
The Social Worker completed a further mental capacity assessment, after which they advised Ms B that Mrs C had said she wanted to remain in the care home and noted in their professional opinion that Mrs C had settled in the care home. Ms B questioned this, and the Council agreed to complete a further assessment. This was completed in February 2021 and determined that Mrs C did not have capacity to decide about where her care needs should be met.
In mid-February 2021, the Council authorised Mrs C’s placement at the care home under the Deprivation of Liberty Safeguards for a further six months [bearing in mind she had been there for 15 months already, without authorisation other than under the initial ‘urgent’ one, only allowing six months for this first authorisation seems counter-intuitive]. Ms B requested a review of the assessment as she disagreed with the placement. The Council also advised Ms B that she would need to become Mrs C’s deputy before Mrs C could move home and that once this was in place “wrap around care and support should be planned for a safe return home for [Mrs C] if [Ms B’s] powers are granted [..] by COP [Court of Protection]”.
Following Ms B’s complaint against the placement, now under a DoLS, the Council amended the authorisation to four months in March 2021. This was to enable further exploration of whether Mrs C could return home. A new Social Worker was appointed who undertook a visit to the family home, noting the adaptations that had been completed, and recommending an occupational therapy assessment.
In mid-March 2021, Mrs C contracted a urinary tract infection and again fell ill in early April. She was admitted to hospital and passed away.
What was found
As part of its investigation, the LGSCO considered Ms B’s concerns that she was unable to visit Mrs C face-to-face at the care home [a contributory factor in her desire to bring her mother home]. It noted that this was heavily impacted by Government guidance over the course of Mrs C’s placement preventing face-to-face care home visits (except at end of life) and managerial discretion assumed by the care home when national restrictions were not in place i.e., to allow visits only when essential or when the resident was at end of life.
It found that, on balance, the care home had legitimate concerns about transmission of COVID-19 and was able to exercise its own discretion. This was not fault.
The LGSCO found fault in the Council’s administration of Mrs C’s placement. Firstly, it failed to authorise her placement under DoLS for 15 months. The law is clear that these assessments, once applied for, should be completed within 21 days. Notwithstanding the exceptional circumstances caused by the pandemic and a reasonable prioritisation of applications, this was a significant delay.
It further found that the Council incorrectly documented that this authorisation was in place in the April 2020 mental capacity assessment, highlighting procedural error or inaccurate recording on behalf of the Council.
The LGSCO was concerned that the Council’s own views obscured what was legally permissible when it came to Mrs C’s move back home. It incorrectly advised Ms B in February 2021 that Mrs C could not move back home until Ms B was appointed as her deputy. This is fault. Finding that Mrs C lacked capacity to make this decision herself, a best interests decision could have supported a move home if it was indeed in Mrs C’s best interests to do so.
Despite these faults, the LGSCO did not find that Mrs C’s move home was hindered by the Council, more that the impact of the COVID-19 pandemic delayed Ms B in being able to prepare the house and arrange sufficient care support at home in order to facilitate such a move.
The LGSCO found that a quicker authorisation of Mrs C’s stay under a DoLS may have focused the Council’s mind on the steps needed to support Mrs C to return home, but ultimately found the disrupting influence of the pandemic to have been the cause of the delays.
Nevertheless, the LGSCO found that direct fault of the Council did cause Ms B some injustice and avoidable distress and recommended the Council:
- Apologise to Ms B
- Pay Ms B a symbolic amount of £500 to reflect the distress and time and trouble.
- Introduce a procedure (or revise an existing procedure) so it can identify when it has failed to meet the 21-day limit to authorise a request under DoLS.
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
Following the first lockdown in March 2020, the Council issued guidance that all assessments for DoLS would be conducted remotely. This way of working continued until at least January 2021, but there was nothing in this guidance suggesting that there would be significant delays in authorisation process. Of course, such delay was already normalised by then, in any event.
The Department of Health and Social care issued The Mental Capacity Act (2005) (MCA) and deprivation of liberty safeguards (DoLS) during the coronavirus (COVID-19) pandemic – GOV.UK (www.gov.uk) guidance which recognised the additional pressure the pandemic put on the DoLS system. This highlighted that there was recognition of some delays, and that ‘’as long as providers can demonstrate that they are providing good-quality care and treatment for individuals, and they are following the principles of the MCA and Code of Practice, then they have done everything that can be reasonably expected in the circumstances to protect the person’s human rights’’.
The guidance allowed for some delays, but 15 months is an extraordinary length of time to be waiting for an assessment that should be a routine activity for a council.
We agree with the LGSCO that were the proper procedures to have been followed that it would have unlikely changed the outcomes, but this cannot be an excuse for poor practice!
We wonder if the reference to a deputyship being needed ‘before’ the client could be moved was a mistake for ‘moved by virtue of the No refusals assessment’?
That is because a DoLS Authorisation cannot be given if it conflicts with:
- a valid and applicable advance decision refusing some or all of the particular treatment if you have created one, or
- a decision of your attorney under a Lasting Power of Attorney or court-appointed deputy within the scope of their authority.
That would have meant that the daughter could have blocked a DoLS regime, although that would not have been on the basis of a service refusal, but on the basis that it wasn’t possible to make a placement in any care home if it needed to deprive the client of her liberty.
NHS Digital produced a report of DoLS delays for 2020/21 which highlighted that only 24% of standard applications were completed within the statutory timeframe of 21 days, with the average length of time for a completed application being 148 days. This rose to 153 days in 2021/22 with only 20% of applications completed within 21 days. We await the statistics for 2022/23 which are due to be published in August 2023 with no hope of improvement, although the extraordinary circumstances created by the pandemic are no longer a factor. If not, we hope the LGSCO continues to note and publicise this unacceptable trend when considering its findings. If not it will only hasten the disregard of the rule of law that occurs when there are theoretical rights but without practicable access to remedies to solve them.
The full Local Government Ombudsman report on the actions of Wirral Metropolitan Borough Council can be found here: 22 010 680 – Local Government and Social Care Ombudsman