Date of decision: 2 April 2025
Summary
A man complained about contact restrictions Staffordshire had imposed on his visits to his late partner, Mrs Y, when she was living in a Council commissioned care home. The Ombudsman found that the Council’s lack of clarity and failure to provide written explanations caused Mr X significant distress and uncertainty, undermining his rights and dignity. The case exposes a breach of good administrative practice and highlights the importance of transparency and respect for family life in adult social care.
What happened
Mrs Y was admitted to hospital in spring 2023 after a fall. While in hospital, the Council received safeguarding concerns alleging controlling and coercive behaviour by Mr X and his lack of engagement in discharge planning.
The Council completed needs and mental capacity assessments. Mrs Y was found to have capacity to decide on her accommodation and consented to a care home placement, but lacked capacity to manage her finances.
The outcome of one safeguarding concern was recorded as inconclusive and the other as not substantiated.
Mr X stopped engaging with the discharge arrangements after a visit to hospital and he stopped visiting Mrs Y. She was noted to be sad about that.
After the move to the care home, a relative agreed to apply to the Court of Protection for deputyship to take over the management of Mrs Y’s finances.
Mr X resurfaced in late July 2023. He wanted to know where Mrs Y was living and to visit her. Mrs Y expressed a desire for visits from Mr X, along with visits from her relatives, and friends, but wanted visits staggered to avoid conflict.
The Council advised the care home to stagger visits and, without any formal best interests procedures, recommended that Mr X’s visits be supervised in the lounge. This advice was not communicated in writing to Mr X.
Mr X was told by the care home and Council staff that he could only visit at certain times, must pre-book, and would be supervised. He was not given clear, written reasons for these restrictions.
Mr X raised concerns about the lack of explanation and the impact on his ability to visit Mrs Y freely. The Council and care home gave inconsistent information about the basis of the restrictions, sometimes presenting them as safeguarding measures.
At one point there was a concern that Mr X was coercing Mrs Y into signing documents at the care home. The care home noted Mr X was shouting and would not calm down, so they asked him to leave.
The Council apparently decided a safeguarding enquiry was not required as a deputyship application ‘was in progress’.
The Council eventually clarified, months later, that these were recommendations rather than compulsory restrictions, but by then Mr X had experienced significant distress and uncertainty.
Mrs Y’s health deteriorated, and she died in early 2024. Mr X also complained that he was not informed Mrs Y was on end of life care until shortly before her death.
What was found
The Council was at fault for failing to clearly communicate in writing to Mr X and the care home the nature and basis of the contact restrictions, and for not properly considering Mrs Y’s right to respect for her family life.
The Council’s actions led Mr X to believe the restrictions were mandatory and part of a safeguarding plan, not surprisingly causing him distress and limiting his contact with Mrs Y.
There was no evidence that the Council formally considered less restrictive options or reviewed the restrictions regularly, contrary to good practice and guidance.
The Ombudsman found no fault regarding the timing of informing Mr X about Mrs Y’s end of life care, as there was no evidence she was on such a pathway when first admitted to the care home.
The Ombudsman recommended the Council apologise to Mr X, remind staff of the need for clear communication and formal decision-making when restricting contact under the auspices of best interests care planning, and its commissioners review their procedures to ensure compliance with updated CQC guidance to ensure that where restrictions are placed on contact between a care home resident and their relatives, the nature of the restrictions is communicated in writing to the person on whom the restrictions are imposed and the care provider, and restrictions are reviewed regularly.
Points to note for councils, professionals, people using services and their carers, advocacy groups and members of the public
Under the Mental Capacity Act 2005, councils must assess capacity when in doubt and ensure any decision made for someone lacking capacity is in their best interests, using the least restrictive option.
People who do not lack mental capacity are also entitled to have their care plan shaped and finalized after consideration as to whether any legitimate aim can be secured in a less restrictive way: see se1(3)(h) of the Care Act, which obliges regard to be had to .
(h) the need to ensure that any restriction on the individual’s rights or freedom of action that is involved in the exercise of the function is kept to the minimum necessary for achieving the purpose for which the function is being exercised.
Section 42 of the Care Act 2014 requires councils to make safeguarding enquiries if a person with care and support needs may be at risk of abuse or neglect if they cannot self-protect.
Here, the abuse was the fault of the Council itself. In terms of commissioning, if not even aware that abuse is occurring, councils must ensure that any restrictions on visiting in care homes contact are:
- Clearly communicated in writing to both the person affected and the care provider
- Based on formal best interests decisions where capacity is lacking
- Regularly reviewed and removed when no longer necessary
- Supported by clear, documented reasons and evidence
Failure to follow these duties risks unlawful interference with family life, which could land the care home in difficulties because providers to Care Act funded clients are directly liable for delivery of their human rights, including those which impose positive duties and not merely an obligation not to impinge on people’s rights.
We would characterize the Council’s approach in this situation as the worst of both worlds: overdoing the intervention in relation to the visits, given that this couple had been living together; and underdoing it (and also underdoing due process for the gentleman) in relation to the issue regarding the signing of paperwork whilst deputyship application was merely ‘in hand’! The LGSCO appears to have agreed: “Had the Council formally told Mr X this sooner, [in light of the decision that she lacked capacity to manage financial matter] when it recommended the restrictions and the reasons for them, it may have prevented these incidents occurring.”
Regulation 10 of the Health and Social Care Act 2008 (Regulated Activities) Regulations 2014 and CQC guidance require care services to respect residents’ dignity, privacy, and relationships, supporting visits from family and friends unless restrictions are strictly necessary and proportionate.
The standards include that:
- Service users must be treated with dignity and respect and their privacy ensured.
- People’s relationships with their visitors, carer, friends, family or relevant other persons should be respected and privacy maintained as far as reasonably practicable during visits.
- People must be supported to maintain relationships that are important to them while they are receiving care and treatment.
The Competition and Markets Authority (CMA) guidance states that restrictions on visitors in care homes must be narrowly drawn, justified, and regularly reviewed, with clear communication to all parties. This Guidance is expressed to apply to people in a care home even if they are not contracting in person, because the CMA still regards them as ‘consumers’ of the services.
The Human Rights Act 1998 requires councils to have due regard for individuals’ rights, including respect for family life.
The law governing a local authority’s (council’s) rights to restrict contact between a person lacking mental capacity (“P”) and others is tightly circumscribed. The Mental Capacity Act 2005 (MCA 2005) and relevant case law establish that councils have very limited powers to unilaterally impose contact restrictions. The authority to impose such restrictions ultimately lies with the Court of Protection, not with councils or welfare deputies.
This LGSCO report does not seem to be consistent with the investigator knowing that this is the law. The findings imply that the investigator thinks that councils can limit contact as between people, under the auspices of best interests decision-making in the context of care planning.
The Mental Capacity says that not even a welfare deputy can do that, without risk of legal challenge: putting this another way, the decision is for the Court, and a person who is prevented from seeing someone lacking capacity can bring proceedings to challenge that intervention, because it also affects them.
Councils may be involved in safeguarding and care planning, but they do not have substitute decision-making power to prohibit contact as a matter of course. They need authority to act. Contact is a special issue because someone else’s life is affected!
Section 16 of the MCA 2005 gives the Court of Protection the power to decide where P lives and what contact, if any, P should have with specified persons, or to prohibit contact with named persons.
Importantly, section 20 and section 16(5) specifically prohibit deputies (including welfare deputies) from being given the power to prohibit a named person from having contact with P.
In SR v A Local Authority [2018] EWCOP 36, a council’s restriction on contact between a woman with dementia and her husband was found to be unlawful because it was imposed without court authority. The judge held the restrictions were “neither justifiable, proportionate or necessary” and criticised the council for not referring the matter to the court sooner. Deprivation of Liberty Safeguard (DoLS) authorisations and the conditions under an authorisation do not provide lawful authority for contact with family members to be restricted.
Legal academic commentary is to this effect: “If restriction on contact could be levered into the definition of an act in connection with care and treatment, s.5 MCA 2005 could, in principle, provide a basis upon which contact could be restricted without incurring liability. However, the quid pro quo must be that “[I]f, at the end of the […] process, it is apparent that the way forward is finely balanced, or there is a difference of [professional] opinion, or a lack of agreement to a proposed course of action from those with an interest in the [person’s] welfare, a court application can and should be made” (Lady Black in An NHS Trust v Y).” But the commentary does not suggest that it is clear that that leveraging in to s5 CAN happen, as a matter of law, and we think that since it does not involve touching the person or treating them or their property, it cannot be got ‘in’ there.
Please use the following link if you want to read the original Local Government and Social Care Ombudsman’s Staffordshire County Council (24 002 444)report. If you are affected by the issues in this report, please consider asking a free, one-off question, anonymously, at a level of principle, here. Our experts’ response will give you an opinion which may then help you and the broader community, when posted.
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