Decision Date: 18 April 2023
What happened
Mr B complained that the Council failed to include him in a decision about where his mother, Ms C, should live.
Ms C was living in a residential care home and expressed a desire to return to her own home. She was assessed by the Council over a two-month period, under the Mental Capacity Act 2005, and determined as having capacity to make this decision.
Ms C returned to her own home and died six weeks later. Mr B complained that the Council ‘rushed’ to send Ms C home, that it was unsafe, and led to her death.
What was found
The LGSCO found no fault in the Council’s process in establishing whether or not Ms C had capacity to make the decision about where her care needs were to be met. It found that the Council met with Ms C several times over a two-month period, and therefore found no evidence to substantiate Mr B’s concern that it rushed the decision.
Mr B further disputed the Council’s decision, based on Ms C’s dementia diagnosis. The LGSCO highlighted that it cannot be presumed that someone is unable to make a decision based solely on their age, disability, behaviour or medical condition. It went on to say that where there is doubt over whether someone has capacity to make a particular decision [bearing in mind this is time and decision specific] an assessment should be completed. This is what the Council did.
Mr B felt excluded from the decision making process, but the LGSCO highlighted that Ms C had capacity to make her own decision and therefore there was no duty for the Council to seek Mr B’s views. However, it noted that it would have been good practice for the Council to arrange a family meeting [with Ms C’s consent] and the Council acknowledged that their communication with Mr B could have been better.
The LGSCO did not investigate Mr B’s complaint in full as it found no evidence of fault in the mental capacity assessment process applied by the Council. It was satisfied that the Council apologised to Mr B for poor communication.
Mr B made a Subject Access Request to the Council under the Data Protection Act 2018. He was unhappy with its response, for which the LGSCO has signposted him to the Information Commissioner’s Office (ICO). [This is because the ICO is best placed, over the LGSCO, to follow up on this complaint].
Points to note for councils, professionals, people using services and their carers, advocacy groups, members of the public
The Mental Capacity Act s1(2) states that ‘’a person must be assumed to have capacity unless it is established that he lacks capacity’’, and that people must be supported to make their own decisions, where able to do so, even if others may think those decisions are unwise [s1(4)].
We understand that Mr B had a lasting power of attorney for Ms C [we presume this was for Health and Welfare decisions based on the decision at hand, although the report does not explicitly state this].
We think that it’s an interesting question who the decision maker IS, once a person has appointed an attorney and the question of their capacity to make a relevant decision then arises. One might say it MUST be the attorney, otherwise what’s the point; one might equally say it must NOT be the attorney, otherwise where is the protection? But the answer to THAT is that the compos mentis grantor can lay down conditions for their own protection when creating the lasting power in the first place, to ensure that there is no capricious taking of authority by the grantee. There are several issues for decision making here: accepting physical removal from the care home, which may not have required touching; letting services in at home, her property; and organising the care (the commissioning part, if Mr B did not want to organise it for his mother, which is perfectly understandable if he didn’t agree with her being able to decide to go home) and funding it (again, the council).
Unlike an LPA for Property and Financial Affairs, which can be utilised whilst a person still has capacity, with their permission, an LPA for Health and Welfare decisions only comes into force once a person loses capacity.
There is a common view that once an LPA is made, it is valid. This is inaccurate. Before the LPA can be used, it must be registered by the Office of the Public Guardian (OPG). Towards the end of the LPA form there is a statement ‘’You do not have to register immediately, but it’s a good idea in case you’ve made any mistakes. If you delay until after the donor loses mental capacity, it will be impossible to fix any errors. This could make the whole LPA invalid and it will not be possible to register or use it.’’
This is sensible advice, to ensure that the form is going to be accepted at the time when the Donor lacks capacity. This registration makes it valid but does not necessarily equate to it becoming effectual and a person being able to make decisions on behalf of the donor.
In addition, as capacity is time and decision specific, in cases where there is a registered LPA for health and welfare decisions, it is still good practice to complete an assessment with the person to ascertain their level of capacity at that time when an important decision falls to be made. If the person was found to have capacity to make the later decision, this would take precedence over the LPA, registered or not!
The full Local Government Ombudsman report on the actions of Bury Metropolitan Borough Council can be found here: https://www.lgo.org.uk/decisions/adult-care-services/assessment-and-care-plan/22-017-174