Summary: Ms X complains Park View Care Centre overcharged her aunt, Ms Y, for her care, prevented her from returning to her own home and made false allegations against Ms X. Ms Y was not overcharged for her care. However, Park View raised baseless safeguarding concerns which caused avoidable distress. It needs to apologise for that distress.

The complaint

1. The complainant, Ms X, complains Park View Care Centre (“Park View”) overcharged her aunt, Ms Y, for her care, prevented her from returning to her own home and made false allegations against Ms X.

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The Ombudsman’s role and powers

2. We investigate complaints about adult social care providers and decide whether their actions have caused an injustice, or could have caused injustice, to the person making the complaint. I have used the term fault to describe such actions. If they have caused an injustice we may suggest a remedy. (Local Government Act 1974, sections 34 B, 34C and 34 H(3 and 4) as amended)
3. This complaint involves events that occurred during the COVID-19 pandemic. The Government introduced a range of new and frequently updated rules and guidance during this time. We can consider whether the care provider followed the relevant legislation, guidance and our published “Good Administrative Practice during the response to COVID-19”.

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How I considered this complaint

4. I have:
• considered the complaint and the documents provided by Ms X;
• discussed the complaint with Ms X;
• considered the comments and documents the care provider has provided in response to my enquiries;
• considered the Ombudsman’s guidance on remedies; and
• shared a draft of this statement with Ms X and the care provider, and taken account of the comments received.

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What I found

5. 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.
6. A key principle of the Mental Capacity Act 2005 is that any act done for, or any decision made on behalf of a person who lacks capacity must be in that person’s best interests. The decision-maker also has to consider if there is a less restrictive choice available that can achieve the same outcome. Section 4 of the Act provides a checklist of steps decision-makers must follow to determine what is in a person’s best interests. This includes ascertaining the person’s past and present wishes and feelings.

Key facts

7. Ms X has power of attorney for Ms Y’s health and welfare, and property and affairs.
8. Ms Y moved to Park View, which is run by RCH Care Homes Limited (“the care provider”) from hospital in November 2021, where she had been treated for a wound to her leg following a fall. Ms Y experienced visual hallucinations linked to sight loss. The hospital’s discharge summary said Ms Y’s discharge destination was her “usual place of residence”. It later said: “assessed by therapy team and she is discharged to D2A bed” (discharge to assess bed, which means a care home). The transfer of care form said Ms Y needed help from one person when transferred to a chair and to a commode. Park View pre-admission form refers to Ms Y’s placement as “permanent”.
9. Park View’s admission record for Ms Y said she was bedbound following a fall. An internal e-mail said she was “not eligible for funding and is self-funding”. It also referred to her as “not very mobile at all”. Although experiencing short-term memory loss, Ms Y had the capacity to make decisions for herself. However, she said she wanted Ms X to be involved in decisions relating to her care.
10. Park View did risk assessments for Ms Y and produced care plans.
11. The November overview of Ms Y’s care said she was bedbound. However, another overview from around the same time said she liked to sit in an armchair each day. Two staff used a full hoist to get her up and a slide sheet to reposition her in her bed.
12. In February 2022 Ms X told Park View Ms Y would be leaving to return to her own home. She said she did not know when this would be, but she was working to arrange a package of care with her local authority. Park View told the local authority Ms Y wanted to return home. It said, although a doctor had assessed her as having the mental capacity to make that decision, Ms X disputed it and said she would “wash her hands” of her aunt if she was supported to go back home. It asked the local authority to look into the situation. Ms X had said she did not want to be a party to what was happening, but would support Ms Y’s decisions, attend meetings to support her and would not seek to influence her one way or another.
13. When the local authority visited Ms Y in March, it found her disorientated and unable to say where she was or why. Park View agreed Ms Y may no longer have the capacity to decide where her care needs should be met. The local authority noted Ms Y was no longer asking to return home. They agreed Ms Y may need a deprivation of liberty safeguard. Ms X told the local authority she was thinking about moving Ms Y to another care home. She also said she disputed a GP’s view that Ms X had the capacity to decide where she should live. She said she had asked for a second opinion from the Community Mental Health team, but it had declined.
14. Park View’s April 2022 overview of Ms Y’s care said she sat out in an armchair during the day. It said two staff used a sling hoist for transfers and a slide sheet when in bed.
15. On 5 April Park View applied to the local authority for a deprivation of liberty safeguard for Ms Y. This was on the basis her cognition had declined and she could no longer make complex decisions for herself. It said it had been agreed she should remain at Park View and she no longer wanted to go home and appeared happy to remain at Park View. The application said:
• Ms Y lacked the capacity to decide where she should live;
• It was in her best interests to remain at Park View;
• Returning home was not an option because Ms Y would be at risk of self‑neglect and harm.
16. On 5 April Ms X called NHS 111 for guidance, as Ms Y was not responding when she spoke to her. She was concerned she may have had a stroke. Ms Y’s observations were within the normal range. After assessing Ms Y, a paramedic referred her to the Frailty Team with a view to producing a treatment escalation plan for her. The paramedic said to get in contact if there were any further concerns.
17. On 6 April Park View told the local authority Ms X was obstructing Ms Y’s care and not acting in her best interests. It suggested she had been misusing resources by calling for an ambulance. It said Ms X wanted to move Ms Y but this was not what she needed. It said Ms X was trying to get another GP for Ms Y (Ms X says this was because she wanted a second opinion on Ms Y’s mental capacity) and was talking about employing care workers to support Ms Y at Park View (Ms X says this was not correct). Park View reported its concerns to the local authority as safeguarding concerns.
18. On 13 April Ms X told Park View she accepted there was nothing mentally wrong with Ms Y and supported her decision to go home. She said her confusion had probably been caused by an untreated urinary tract infection. The records show Ms Y was treated for a suspected urinary tract infection, but it is not clear whether she had one or not. Park View said decisions would now have to be made with the local authority in Ms Y’s best interests.
19. On 14 April Park View told the local authority the Frailty Team said Ms Y did not have an infection but was “generally frail”. It agreed Ms Y lacked the capacity to decide where she should live, but said she was happy at Park View. Park View said it would be detrimental to Ms Y’s health to move her.
20. Ms X started to make the arrangements for her aunt to return home and contacted a care provider about supporting her in her own home.
21. Ther local authority found Ms Y lacked the capacity to decide where she should live, but said she wanted to return home. Park View told the local authority it had assessed Ms Y as lacking mental capacity to decide where she should live, along with her GP, the Frailty Team, and the paramedics. Park View said it would raise further safeguarding concerns.
22. On 15 July Park View reported safeguarding concerns to the local authority, on the basis Ms X was not acting in her aunt’s best interests. It said she was making arrangements to remove her aunt from Park View. It said a best interests meeting was being arranged and an Independent Mental Capacity Advocate had been appointed to support Ms Y.
23. The local authority decided not to make enquiries into the safeguarding concerns raised by Park View, but to manage them by holding a best interests meeting to decide where Ms Y should live. The local authority held the best interests meeting on 26 July. Ms X decided it was in Ms Y’s best interests to have her needs met in her own home (the least restrictive option). No one disagreed with that decision.
24. Ms Y returned home in September 2022 with a privately arranged package of care.
25. When the care provider responded to Ms X’s complaint in August 2023, it said:
• Ms Y was admitted under the discharge to assess (D2A) pathway, which was funded for six weeks by the local authority (the local authority has confirmed this was not correct).
• There was no evidence the hospital referred Ms Y for physiotherapy in the community. Its care homes did not provide therapy services.
• Ms Y had been prescribed antibiotics in May 2022 because she presented as very confused.
• It had no evidence that staff carried out Ms Y’s four-and six-week reviews.
26. In November 2023 we found the care provider had delayed by around six months in responding to Ms X’s complaint. We recommended a payment of £300 to recognise the frustration caused by the delay and the time and trouble she had been put to in pursuing the complaint. But Ms X decided not to accept the payment.
27. When the care provider replied to Ms X’s complaint in December 2023, it said:
• Neither the NHS nor a local authority had ever commissioned it to provide a discharge to assess bed;
• It denied providing false information to other professionals to prevent Ms Y from returning to her own home;
• Ms X would have to elaborate on her claim that Ms Y’s care plan was inadequate before it could comment on it. However, it denied the claim that the care plan was below the standard required to provide care meeting Ms Y’s needs.

Did the care provider’s actions cause injustice?

28. There is conflicting information in the hospital discharge form, which said Ms Y returned to her usual home but also said she went to a discharge to assess bed. The care provider also made conflicting statements about the funding for her placement, initially saying she moved to a discharge to assess bed funded by the local authority for six weeks, but later denying it had accepted such placements. Its other records say Ms Y moved to Park View as a permanent self-funding resident. The local authority has confirmed that it did not fund Ms Y’s placement. When considering complaints, we make findings based on the balance of probabilities. This means that we look at the available relevant evidence and decide what was more likely to have happened. On balance, there is not enough evidence to say the care provider overcharged Ms Y for her care.
29. The evidence shows there was a significant change in Ms Y’s mental capacity in the early part of 2022. When Ms X started questioning her aunt’s capacity to decide where she should live, it appears to have triggered a breakdown in her relationship with Park View. Initially Park View supported Ms Y returning to her own home but then questioned whether this was in her best interests, when it became clear she had lost the capacity to make that decision.
30. It is unclear why Park View felt the need to make a safeguarding referral in April 2022 after Ms X called NHS 111. There was no risk of harm to Ms Y from this. Park View assumed Ms Y would be at risk of harm if she returned home and that it was in her best interests to remain where she was. But that was not the case and Park View did not give proper consideration to what was in Ms Y’s best interests. It made sweeping assumptions when saying what was in her best interest and ignored the fact Ms Y had been asking to go home, before she lost the capacity to make that decision. A key principle under the Mental Capacity Act is the need to take account of someone’s past and present wishes and feelings, including any views they may have expressed before losing capacity. If Park View wanted to question Ms X’s decision, there were less confrontational ways of doing that, for instance asking the local authority to arrange a best interests decision meeting.
31. The local authority recognised the safeguarding process was not the right way to address the concerns and arranged a best interests meeting, once it was established Ms Y lacked the capacity to decide where her care needs should be met, so everyone had an opportunity to express their views.
32. Park View raised further safeguarding concerns in July, despite the fact the local authority was already arranging a best interests meeting. Ms X needed to satisfy herself that arrangements could be made for her aunt’s care at home. Taking steps to establish that was not a threat to Ms Y.
33. While the safeguarding concerns contributed to a further decline in the relationship between Ms X and Park View, they were not responsible for the delay in Ms Y’s return home. Many other parties were involved in ensuring all the arrangements were in place for Ms Y to return home safely. However, the safeguarding concerns caused avoidable distress to Ms X, for which an apology is required. The poor approach to what was in Ms Y’s best interest, shows the management of Park View need reminding of the principles of the Mental Capacity Act.

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Recommended action

34. I recommend the care provider:
• within four weeks provides Ms X with a written apology for the needless distress it caused, which complies with our guidance on making an effective apology; and
• within eight weeks, ensures the management of Park View receive refresher training in the principles of the Mental Capacity Act.
35. The care provider has sent Ms X an apology and has agreed to ensure the managers at Park View receive refresher training in the principles of the Mental Capacity Act. It should provide us with evidence when it has done this.
36. Under the terms of our Memorandum of Understanding and Information Sharing Agreement with the Care Quality Commission, I will send it a copy of my final decision statement.

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Final decision

37. I have completed my investigation on the basis the care provider’s actions have caused injustice which requires a remedy.

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Investigator's decision on behalf of the Ombudsman