Summary: Mrs X complained the Council agreed to allow her late father Mr Y to leave residential care and return home despite him having dementia, fluctuating mental capacity and a high risk of falls and self-neglect. The Council was not at fault in the way it assessed Mr Y’s capacity and allowed him to go home. It has already acknowledged poor communication and a delay in referring Mrs X for a carers assessment in its complaint response. It has already apologised for this which was appropriate. It has agreed to provide us with evidence it has carried out the actions it said it would take to prevent a recurrence of these faults in future.

The complaint

1. Mrs X complained the Council agreed to allow her late father Mr Y to leave residential care and return home despite him having dementia, fluctuating mental capacity and a high risk of falls and self-neglect. As a result, Mrs X says Mr Y fell and later died.

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The Ombudsman’s role and powers

2. We investigate complaints about ‘maladministration’ and ‘service failure’. In this statement, I have used the word fault to refer to these. We must also consider whether any fault has had an adverse impact on the person making the complaint. I refer to this as ‘injustice’. If there has been fault which has caused an injustice, we may suggest a remedy. (Local Government Act 1974, sections 26(1) and 26A(1), as amended)
3. We consider whether there was fault in the way an organisation made its decision. If there was no fault in the decision making, we cannot question the outcome. (Local Government Act 1974, section 34(3), as amended)
4. When considering complaints, if there is a conflict of evidence, we make findings based on the balance of probabilities. This means that we will weigh up the available relevant evidence and base our findings on what we think was more likely to have happened.
5. If we are satisfied with an organisation’s actions or proposed actions, we can complete our investigation and issue a decision statement. (Local Government Act 1974, section 30(1B) and 34H(i), as amended)

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How I considered this complaint

6. I have considered the information provided by Mrs X and discussed the complaint with her on the telephone. I have considered the Council’s response to our initial enquiries and the relevant law and guidance.
7. I gave Mrs X and the Council the opportunity to comment on a draft of this decision. I considered any comments I received in reaching a final decision.

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What I found

The relevant law and guidance

Mental Capacity Act

8. 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. The Act (and the Code of Practice 2007) describes the steps a person should take when dealing with someone who may lack capacity to make decisions for themselves. It describes when to assess a person’s capacity to make a decision, how to do this, and how to make a decision on behalf of somebody who cannot do so.

Mental capacity assessment

9. A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity. A person should not be treated as unable to make a decision:
• because they make an unwise decision;
• based simply on: their age; their appearance; assumptions about their condition, or any aspect of their behaviour; or
• before all practicable steps to help the person to do so have been taken without success.
10. The council must assess someone’s ability to make a decision when that person’s capacity is in doubt. How it assesses capacity may vary depending on the complexity of the decision.
11. An assessment of someone’s capacity is specific to the decision to be made at a particular time. When assessing somebody’s capacity, the assessor needs to find out the following:
• Does the person have a general understanding of what decision they need to make and why they need to make it?
• Does the person have a general understanding of the likely effects of making, or not making, this decision?
• Is the person able to understand, retain, use, and weigh up the information relevant to this decision?
• Can the person communicate their decision?
12. The person assessing an individual’s capacity will usually be the person directly concerned with the individual when the decision needs to be made. More complex decisions are likely to need more formal assessments.
13. If there is a conflict about whether a person has capacity to make a decision, and all efforts to resolve this have failed, the Court of Protection might need to decide if a person has capacity to make the decision.

Deprivation of Liberty Safeguards (DoLS)

14. 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 protects 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 the care home or hospital to apply for authorisation. The DoLS Code of Practice 2008 provides statutory guidance on how they should be applied in practice.
15. The Supreme Court defined deprivation of liberty as when: “The person is under continuous supervision and control and is not free to leave, and the person lacks capacity to consent to these arrangements”.
16. 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.
17. Once there is or is likely to be a deprivation of liberty, it must be authorised under the DoLS scheme in the Mental Capacity Act 2005.
18. The ‘managing authority’ of the care home (the person registered or required to be registered by statute) must request authorisation from the ‘supervisory body’ (the council). There must be a request and an authorisation before a person is lawfully deprived of their liberty.
19. The application for authorisation should be made within 28 days.
20. There are two types of authorisation: standard authorisations and urgent authorisations. Standard authorisations are made by the council.
21. On application, the supervisory body must carry out assessments of the six relevant criteria: age, mental health, mental capacity, best interests, eligibility and ‘no refusals’ requirements. A minimum of two assessors, usually including a social worker or care worker, sometimes a psychiatrist or other medical person, must complete the six assessments. They should do so within 21 days, or, where an urgent authorisation has been given, before the urgent authorisation expires.
22. Urgent authorisations are made by the managing authority of the care home in urgent cases only, for seven days, pending application for a standard authorisation. In some cases, the supervisory body can extend an urgent authorisation up to 14 days in total.

What happened

23. Mr Y lived at home. He was admitted to hospital with confusion, a possible water infection and delirium. Mrs X says that before the hospital admission Mr Y had frequent falls but did not need a care package. In late February 2021 he was discharged to care home A for a period of assessment. Care home A applied for a DoLS which was granted in mid April 2021 for a six month period to allow decisions to be made about his longer term care and accommodation.
24. The Council arranged a best interest meeting in late May 2021 to determine how and where Mr Y’s care and support needs would be best met. All agreed it was in Mr Y’s best interests to remain in a care home setting. In early August 2021 Mr Y moved to care home B.
25. In early November 2021 care home B applied for a DoLS as the current one was due to expire. Under the question ‘is the person regularly requesting to leave, asking to go home or expressing objection to the placement’, they answered ‘yes’.
26. A consultant psychiatrist confirmed Mr Y was suffering from a mental health disorder. They noted Mr Y was independent with personal care, feeding and toileting needs. He used a walking stick to move around.
27. A best interests assessor carried out an assessment in January 2022. They noted they had read the previous DoLS forms and Mr Y’s care plans, had spoken to care home B and Mr Y’s family. Mr Y was very hard of hearing, so a manager of care home B also attended to write down the questions for Mr Y. The assessor concluded Mr Y understood the relevant information provided to him regarding his care and accommodation, was able to recall information relevant to the decision for the duration of the assessment process, could weigh up the information provided to him to make an informed decision regarding his care arrangements and could communicate the risks and his decision. They concluded Mr Y had capacity to make decisions regarding his accommodation and overall care arrangements.
28. The DoLS assessor noted staff reported Mr Y appeared content at the care home, however he did ask to leave. The assessor noted Mr Y said he felt like he was in prison and he wanted to leave and return to his home. They noted they informed Mrs X that the care home could send another referral to the Council if they felt Mr Y was not able to make a decision around his care arrangements and accommodation at the care home.
29. Mrs X wrote to the DoLS team detailing the family’s concerns. She referred to the previous DoLS assessment. She did not consider Mr Y had an understanding of the level of care he required. She considered he had good and bad days and did not consider it was in his or anyone else’s best interests for him to go home. The DoLS team passed Mrs X’s concerns to the social work team.
30. The Council allocated a social worker to conduct a review of Mr Y’s placement. Mrs X contacted the social worker and raised concerns that Mr Y would not be able to look after himself at home and would need support. The social worker advised they would visit and reassess Mr Y’s care needs and would look at his capacity before making a final decision.
31. The social worker visited Mr Y to review his capacity and the placement. They noted they agreed from the discussion that Mr Y had capacity. Mr Y agreed to a lifeline call alarm and suggested a trial period at home. Mr Y reported he needed support with shopping and meal preparation and agreed to a package of care. The care home manager reported they thought Mr Y had capacity to some level, but they were not fully sure he understood the risks as he thought he could do everything for himself. The care home manager reported Mr Y was quite independent with his personal care, toileting and dressing and had no night time needs.
32. Following this the care home told the social worker Mr Y was saying he no longer wished to go home. The social worker visited Mr Y who said he would prefer to go home but was worried how he would cope and he could not make his mind up. The social worker agreed to revisit in a week or two to give Mr Y time to discuss it with his family.
33. The social worker revisited Mr Y in late February 2022. At the visit Mr Y reported he wanted to go home. The social worker asked Mr Y some questions to reassess his capacity and found Mr Y was able to say what he could do for himself and what he needed help with. He agreed to have carers coming in and for an occupational therapy (OT) assessment.
34. The social worker arranged a home visit with an OT, Mr Y and his daughters in March 2022. The OT recommended downstairs living as Mr Y would rush on the stairs and was unsteady. Mrs X agreed to bring a bed downstairs and to arrange three visits a day plus a lunchtime hot meal delivery. The OT agreed to supply a commode and other minor adaptations.
35. Following the visit Mr Y refused to return to the care home, despite encouragement from the social worker and his daughters. Staff from care home B visited Mr Y at home that day and the next day and persuaded him to return to care home B for lunch. They managed to persuade Mr Y to stay but Mr Y was insistent he wanted to return home. The social worker advised the care home to consider applying for an urgent DoLS if Mr Y tried to leave as they did not consider it wise for him to return without a care package and adaptations.
36. Mrs X contacted the Council as she was unhappy at the situation they were left when Mr Y refused to leave his home and there was no care in place. She asked to speak with a manager. The manager decided not to contact Mrs X as they noted they could not add to what the social worker had done already.
37. The social worker completed a care needs assessment. They noted Mr Y required three care visits a day to encourage personal care, for support with meals and medication and maintaining the home environment. They noted Mr Y wished to return to his home with a package of care.
38. The following day care home B raised a safeguarding concern. Mr Y had rushed out of the home and laid on the floor refusing to get up and shouting that he was being kept against his will. The care home managed to get Mr Y back inside and they managed to settle him.
39. Planning for Mr Y’s return home continued. Mrs X advised the social worker Mr Y’s home was now set up for downstairs living and she had sourced a care provider to visit three times a day with meals on wheels at lunchtime. Mrs X reported she had concerns about him returning home as she did not believe he had capacity to understand his care needs. She said she wanted the care home placement kept open so Mr Y could return there if he no longer wanted to live at home.
40. The social worker visited Mr Y. They considered he had capacity and still wanted to return home. Mr Y agreed this would be on a trial basis and if it was assessed he was not safe at home he might need to return to care home B.

Mr Y’s return home

41. Mr Y returned home in late April 2022. Mrs X reported the transition went well and Mr Y was happy to be going home.
42. The social worker visited Mr Y the following week. They noted he looked happy and relaxed. He reported he had no issues and was happy at home. Mrs X and her sister reported concerns including Mr Y ringing them several times, going upstairs and not eating well. The social worker advised that after the three week trial if there was no significant risk to Mr Y his bed at care home B would end. If there was a significant risk another mental capacity assessment and best interests decision may be needed.
43. The social worker completed a risk assessment. They noted the following risks:
• Risk of falls, especially at the stairs. To address the risk they noted family had purchased a falls alarm, carers were to remind Mr Y to limit stair use unsupervised and he had been set up for downstairs living to limit stair use.
• Risk Mr Y would not allow carers to enter the property. The family were advised to remove items Mr Y might use to barricade the door and a key safe was installed.
• Risk of social isolation. Carers would visit three times a day and Mr Y to be encouraged to attend day care if he wished.
• Risk of malnutrition. Mr Y was to have a hot meal delivered each day, carers and family were to encourage eating and drinking and Mr Y’s weight would be regularly monitored.
44. Mrs X emailed the social worker a couple of days later to report Mr Y had a fall the previous night but had not hurt himself. He had also tried to remove the front door lock and requested a screwdriver from a neighbour as he wanted to access the loft (which was locked).
45. The social worker met with Mr Y, Mrs X and her sister the next day. Mr Y reported he was well and happy to be home. He did not know what had caused his fall, but he did not sustain an injury. He reported the falls alarm company had called to check he was okay. Mr Y could not recall trying to remove the door lock and he was happy with carers coming in. Mrs X and her sister reported Mr Y was calling several times a day and was blocking the door with a hoover as he believed people were trying to break in. The social worker advised Mr Y was happy being at home so they should do their best to support him unless there was evidence of a significant risk why he shouldn’t. Mrs X and her sister consented to a referral for a carers’ assessment and the social worker agreed to contact the GP to refer Mr Y to mental health regarding his paranoid beliefs. The social worker agreed to visit again the following week.
46. Mrs X’s sister called the social worker the following week to report Mr Y had a fall. The falls alarm company had alerted the family who had called an ambulance. Mr Y struggled to stand but refused to go to hospital. The social worker advised they could take Mr Y to care home B as the bed remained open, which Mr Y agreed to. Mr Y returned to care home B.
47. The social worker met with Mr Y and his daughters at care home B the following day. Mr Y could not remember where he fell. He was in a wheelchair and tried to stand but could not. Mr Y agreed to go to hospital. The social worker noted Mr Y continued to believe he could cope at home and just needed support with meals. Mrs X was concerned Mr Y would have a significant injury if he returned home. The social worker believed Mr Y was at risk of harm from falls because he could not remember falling or what caused the fall so it was difficult to mitigate the risks. The social worker advised they would visit again to reassess Mr Y’s capacity.
48. Mr Y returned to the care home from hospital the next day. The hospital advised Mr Y had bruising and the GP provided pain relief.
49. Several days later, in late May 2022 Mr Y had an unwitnessed fall at the care home resulting in a hospital admission. He was found to have a fractured hip. The hospital decided not to operate and Mr Y was discharged back to the care home in early June 2022. Mr Y returned to hospital two days later as he was very unwell. The hospital operated on Mr Y’s hip and further tests found Mr Y had also fractured his other hip, possibly as a result of the fall at home in May.
50. Mr Y was discharged back to the care home in late June and died in early July 2022.

Mrs X’s complaint

51. Mrs X complained to the Council in late August 2022. She complained the decision to refuse a DoLS was wrong, about the decision to allow Mr Y to return home and about the level of support provided to Mr Y and the family whilst he was at home.
52. The Council responded in October 2022. It explained the DoLS assessor found Mr Y had capacity to make decisions about his care and support so he could not lawfully be deprived of his liberty. It found no fault in the decision. It accepted the DoLS team had not directly responded to the concerns Mrs X raised in January 2022 and that it should have done so to give the family assurance about the implications of the assessment.
53. It found no fault in the decision for Mr Y to return home or in the support provided to Mr Y and his family. It noted Mr Y was determined to go home and was able to repeatedly articulate this. However, it accepted the Council’s response to Mrs X’s email in mid March raising concerns and asking to speak to a manager was not responded to adequately. It accepted a manager should have contacted the family as requested which would have given them the opportunity to discuss their concerns and then raise a formal complaint if necessary.
54. Mrs X was unhappy with the outcome and provided the family’s comments on the complaint response and associated documents. A Council officer met with the family and provided a further formal response in March 2023.
55. It remained of the view there was no fault in the DoLS assessment or in the process followed regarding Mr Y’s return home. In the response it apologised that Mrs X was not contacted by a manager after her email in mid-March and that they were not contacted by the DoLS team after emailing their concerns in January 2022. It also found support to the family should have been more timely and a referral for a carers’ assessment should have been made sooner. As a result it said it would:
• Share with the Principal social worker the need to review practice in the operational teams to encourage early carer referrals.
• Develop a step by step overview of the DoLS process to be shared with families, carers and relatives of those subject to assessment.
• Remind senior managers to have conversations with families and carers who have concerns where matters are escalated to them.
56. Mrs X remained unhappy and complained to us.

Findings

57. It is not the Ombudsman’s role to consider whether Mr Y had capacity to make his own decisions, or to assess the risks to his wellbeing and health. The Ombudsman’s role is to consider whether the Council followed the correct process in determining Mr Y’s capacity to make such decisions. If it did, then I cannot question or criticise the decisions the Council made.
58. The Council properly assessed Mr Y’s ability to understand his care and support needs and his decision making in relation to this and I found no evidence of fault. The records show the DoLS assessor followed the requirements of the Mental Capacity Act 2005 in reaching their decision and took account of information from the previous DoLS, the care home, the psychiatrist and family before reaching their decision and they gave reasons for their decision. The DoLS assessment found Mr Y had capacity and so he could not be deprived of his liberty. It was therefore for Mr Y to decide where he wanted to live.
59. The records show the social worker gave due regard to Mrs X’s views but as Mr Y had capacity, they could not overrule his decision to return home. They also reviewed Mr Y’s capacity shortly before his return home and were satisfied he still had a capacity to make the decision. They acted in line with the Mental Capacity Act 2005 and I have seen no evidence of fault.
60. The Council assessed the risks and took action to mitigate the risks. Even so, there was an element of risk to Mr Y returning home which Mr Y was willing to take. The social worker visited regularly to review the trial period.
61. Mr Y had a fall and then agreed to return to the care home, following which he had a further fall which resulted in a hospital admission. Although this led to a deterioration in Mr Y’s health and Mr Y later died, this was not the result of fault by the Council.
62. The Council properly investigated Mrs X’s complaint. It found no fault in the DoLS assessment or decision to return Mr Y home. It did find:
• the DoLS team had failed to respond to the concerns she raised in January 2022,
• a manager failed to respond to Mrs X in March 2022 when she requested to speak to them and
• there was a delay in referring Mrs X and her sister for a carer’s assessment.
63. The Council apologised to Mrs X which is an appropriate remedy for the frustration caused by these faults.
64. The Council also said it would learn lessons from the complaint and said it would take action, as set out in paragraph 55. This is an appropriate way to improve service and prevent a recurrence of the faults identified.

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Agreed action

65. Within one month of the final decision, the Council should provide us with evidence it has undertaken the actions it agreed to do within the lessons learned section of its response to Mrs X’s complaint.

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Final decision

66. I have completed my investigation. There was no fault in the way the Council reached decisions about Mr Y’s capacity or in his return home. There were faults in communication with Mrs X and for the delay in referring her and her sister for a carers’ assessment which the Council has already apologised for. It has also agreed to make service improvements as part of its complaint response to Mrs X.

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Investigator's decision on behalf of the Ombudsman