The Ombudsman's final decision
Summary: We have not found fault in the way the Council assessed Mrs C’s mental capacity, and how the Council involved Mrs C and her son in the decisions about where she wanted to live. However, there was fault in the way the Council organised the Continuing Healthcare Checklist. We cannot say whether this caused any injustice to Mrs C and, in any event, the Council offered a further CHC Checklist which was an appropriate remedy.
The complaint
Mr B complains on behalf of his mother, Mrs C who has sadly passed away. He complains about the Council’s assessments of Mrs C’s mental capacity to make certain decisions, its communications with Mrs C about where she wanted to live and its communications about the Continuing Healthcare (CHC) Checklist.
What I have investigated I have investigated Mr B’s complaints. Paragraph 100 explains why I have not investigated the content or the outcome of CHC Checklist.
The Ombudsman’s role and powers
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) 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)
How I considered this complaint
I have discussed the complaint with Mr B. I have considered the documents that he and the Council have sent, the relevant law, guidance and policies and both sides’ comments on the final decision.
What I found
Law, guidance and policies The Care Act 2014 and the Care and Support Statutory Guidance 2014 (updated 2017) set out the Council’s safeguarding duties. The Council also has its own policies.
Safeguarding duty Section 42 of the Care Act 2014 says a safeguarding duty applies where an adult: has needs for care and support, is experiencing, or at risk of, abuse or neglect and as a result of those care and support needs is unable to protect themselves from either the risk of, or the experience of abuse or neglect.
If the section 42 threshold is met, then the Council must make enquiries or cause others to do so.
Mental Capacity Act 2005 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 is supported by the Mental Capacity Act Code of Practice which provides practical guidance on what action to take.
Mental capacity assessment A person aged 16 or over must be presumed to have capacity to make a decision unless it is established they lack capacity.
The council must assess someone’s ability to make a decision when that person’s capacity is in doubt.
The assessment of capacity is a two-stage test: Does the person have an impairment of the brain or is there a disturbance that affects the way their brain works?
If so, does this mean the person is unable to make the decision in question at the time it need to be made?
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?
If a person lacks the capacity to make a decision, then a decision has to be made in their best interests. The Code of Practice sets out what the decision maker has to take into consideration. This includes the person’s past and present wishes and feelings, beliefs and values as well as the views of people close to them.
If there is a conflict about whether a person has capacity to make a decision, and the disagreement cannot be resolved then the person who is challenging the assessment may apply to the Court of Protection to make a decision.
Independent Mental Capacity Advocates (IMCAs) IMCAs provide safeguards under the Mental Capacity Act 2005 for people who: Lack capacity to make a specified decision.
Are facing a decision on a long-term move or serious medical treatment.
Have nobody else who can represent them.
IMCAs can also be involved in care review and adult protection cases.
Care Act Advocate The Care Act 2014 says councils must appoint an independent advocate if people have difficulty to be involved in the assessment of their care needs and the decision making and if there is no family or friend who can support them.
Deprivation of Liberty Safeguards (DoLS) The Deprivation of Liberty Safeguards (DoLS) provide legal protection for individuals who lack mental capacity to consent to care or treatment and live in a care home.
The managing authority (care home or hospital) should inform the relevant person’s family, friends and cares that an application has been made and the people interested in a person’s welfare should be given the opportunity to give their views on the application.
Lasting Power of Attorney A Lasting Power of Attorney (LPA) is a legal document, which allows a person to choose one or more persons to make decisions for them, when they become unable to do so themselves.
Property and Finance LPA – this gives the attorney the power to make decisions about the person's financial and property matters.
Health and Welfare LPA – this gives the attorney the power to make decisions about the person's health and personal welfare. This LPA can only be used when a person lacks capacity to make their own decisions.
NHS Continuing Healthcare The National Framework for NHS Continuing Healthcare provides the guidance.
NHS Continuing Healthcare (CHC) is a package of ongoing care that is arranged and funded by the NHS where a person has been assessed as having a ‘primary health need’.
The NHS Checklist is the NHS Continuing Healthcare screening tool to decide whether a person may need a full assessment of eligibility for NHS Continuing Healthcare.
The individual should be given reasonable notice of the intention to undertake the Checklist, and should normally be given the opportunity to be present at the completion of the Checklist, together with any representative they may have.
There should be a person-centred approach which includes: Ensuring that the individual and/or their representative is fully and directly involved in the process.
Obtaining consent to any physical intervention/examination as part of the assessment process and to the sharing of personal data with third parties.
A person should be provided with the relevant information to make an informed decision regarding their participation in the assessment process and the consequences of refusing to participate.
The Checklist can be completed by a variety of health and social care practitioners, who have been trained in its use. This includes registered nurses employed by the NHS, GPs, local authority staff such as social workers, care managers or social care assistants.
If the outcome of the Checklist is not to carry out a full assessment, a person has the right to ask the Clinical Commissioning Group (CCG) to reconsider it. If they disagree with the outcome once the CCG has reconsidered the decision, they can complain to the CCG. There is no further right of appeal.
What happened Mrs C was an elderly woman who had physical disabilities and needed care and support. Her husband, Mr C, had been her carer for many years. Mrs C moved into the Home in November 2020 when Mr C had an emergency hospital stay. Sadly, Mr C was diagnosed with a terminal illness, and he passed away in May 2021. Mrs C continued to live at the Home and her care package was funded by the Council.
Mental capacity assessments – 1 June 2021 The social worker carried out two mental capacity assessments of Mrs C on 1 June 2021. The assessments took place during a video call because of COVID-19 pandemic restrictions. The social worker said: Mrs C lacked the mental capacity to act as executrix of her late husband’s will.
Mrs C lacked the mental capacity to decide where she wanted to live.
Email regarding CHC Checklist – 15 June 2021 Mr B asked whether a CHC Checklist had been carried out. The social worker explained that a CHC Checklist had not been done as Mrs C did not have health needs which would make her eligible. However, she offered to carry out a CHC Checklist if Mr B wanted this.
The social worker spoke to the Home’s manager on 29 June 2021 and asked whether the Home had applied for a DoLS authorisation as Mrs C had been assessed as lacking the capacity to decide where she wanted to live. The manager said that, in her view, Mrs C had capacity to decide where she wanted to live.
The social worker sent an email to Mr B on 29 June 2021 and said she had arranged the CHC Checklist on 30 June 2021 with the Home’s manager. Mr B says he did not receive the email.
CHC Checklist– 30 June 2021 The social worker completed the CHC Checklist with the Home’s manager on 30 June 2021. The outcome of the Checklist was negative.
The social worker agreed to re-assess Mrs C’s capacity to decide where she wanted to live as there were different opinions on her capacity.
Mr B emailed the social worker as he said Mrs C wanted to move out of the Home and move closer to where he lived which was in another part of the country.
Mental capacity assessment - 1 July 2021 The social worker visited Mrs C in the Home’s garden to assess her mental capacity about where she wanted to live. She concluded that Mrs C had capacity to make that decision. Mrs C told the social worker she wanted to stay at the Home and did not want to move to another part of the country, nearer Mr B.
The social worker contacted the Home on 2 July 2021 and asked the Home to ‘complete a consent form for CHC with [Mrs C]. I will send this over.’
The social worker told Mr B on 5 July 2021 that the outcome of the CHC Checklist was negative. She was waiting for the Home to complete a consent form with Mrs C and would then send the Checklist to the CCG. She could send a copy of the Checklist to Mr B if Mrs C consented to this. She explained that, if Mr B wanted to dispute the outcome of the Checklist, he should address this to the CCG.
Another social worker informed Mr B of the outcome of the mental capacity assessment on 9 July 2021. She said Mrs C had the mental capacity to decide where she wanted to live and Mrs C wanted to stay at the Home. If Mr B tried to move Mrs C against her wishes then this would become a safeguarding issue which would be ‘escalated accordingly.’
Mr B replied and said he had spoken to Mrs C on 9 July 2021 and she told him she wanted to move closer to Mr B. Mr B did not accept the outcome of the mental capacity assessment. He was in ‘total agreement’ that this was a safeguarding issue and he wanted the social worker to escalate this so that it would be investigated accordingly.
The Council made a referral for a Care Act advocate for Mrs C on 15 July 2021. The Council decided the matter did not meet the threshold for a safeguarding enquiry and did not start an enquiry.
The social worker emailed the Home on 20 July 2021 as she had not received the CHC consent form from Mrs C yet. She said she had to send this to the CCG by 28 July 2021.
Mental capacity assessment – 22 July 2021 and 3 August 2021 Mr B had made a request to access Mrs C’s records. The social worker assessed Mrs C’s capacity to give consent to share her care records on 22 July 2021 and 3 August 2021. She concluded that Mrs C had capacity to do so and was happy to share her records with Mr B.
The social worker said an advocate would speak to Mrs C to help her express her decision about where she wanted to live.
The note of the visit on 22 July 2021 said the social worker visited Mrs C ‘to discuss consenting to a CHC Checklist.’ The note said: ‘[Mrs C] was able to understand the basic CHC Checklist application, however she was unable to retain this information or weigh it up in order to make a decision. [Mrs C] was able to communicate that she is happy for the application to go ahead.’ The actions noted were for the social worker to write up the two capacity assessments. However, she only wrote the assessment regarding sharing the records, not the assessment regarding the CHC Checklist.
A Care Act advocate was appointed on 22 July 2021.
The social worker wrote to Mr B on 23 July 2021 and asked him to sign the consent form for the CHC Checklist as he held the LPA for health and welfare for Mrs C.
Mr B’s letter and email – 25 and 26 July 2021 Mr B said: He visited Mrs C on 23 July 202. Mrs C told him she wanted to move closer to him. He acknowledged Mrs C ‘will appease whoever is asking the questions and the way they are framed with a sympathetic favourable response.’ He suggested therefore that Mrs C needed an independent assessment to find out where she wanted to move.
Mr B’s complaints – 19 and 26 July 2021 Mr B made two complaints to the Council and said: Mental capacity and decision making He had been excluded from the decision-making process despite holding an LPA for Mrs C.
The social worker said Mrs C did not have the mental capacity to make decisions regarding her husband’s will, but said she had capacity to make decisions about where she wanted to live.
The Council said Mrs C told them that she did not want to move from the Home. The Council had not provided any evidence of when this conversation took place.
CHC Checklist The Council had failed to provide him with the capacity assessment which said Mrs C lacked capacity to make decisions regarding the CHC Checklist.
The Council should have asked for his consent for the CHC Checklist to take place, as Mrs C lacked the capacity to consent, but failed to do so.
He had not been given notice of the CHC Checklist assessment.
The Council then asked him to give retrospective consent to the CHC Checklist and authorise for it to be shared with the NHS. He refused to give consent as the Council had failed to follow the correct process.
Advocate’s visit - 11 August 2021.
The advocate visited Mrs C and discussed the advantages and disadvantages of a move. Mrs C said she did not want to move and hoped that people would acknowledge this and not pursue the move anymore. The Council sent a copy of the advocate’s report to Mr B.
Mr B emailed the Council on 17 August 2021. He said the advocate’s report was ‘another evidential example of failure to communicate’ and the Council was ‘blatantly ignoring’ Mrs C’s requests to move.
On the same day, the social worker agreed to carry out another CHC Checklist and invited Mr B to attend.
Mr B emailed the Council on 19 August 2021. He said he had spoken to Mrs C and she denied making the statements mentioned in the advocate’s report.
The social worker told Mr B on 23 August 2021 that she would complete a further CHC Checklist or Mr B could ask Mrs C’s GP to do so. The social worker said the Council would close its file as Mrs C was no longer eligible for Council funding (because of the inheritance). The Council told the Home that, if Mr B tried to move Mrs C out of the Home against her will, the Home could make a safeguarding referral to the Council and informed Mr B of this.
Later correspondence shows the Council agreed to remain involved so that it could carry out another CHC Checklist and because of the continuing issue whether Mrs C should move to another care home or not.
The Council decided to organise a meeting between the Council’s officers, Mr B, Mrs C and Mrs C’s advocate to review the plan for Mrs C.
Mr B told the Council that he wanted to be involved in the CHC Checklist but could not attend a meeting until 13 September 2021 at the earliest.
Mental capacity assessment – 13 September 2021 Mr B instructed an independent psychologist to carry out an assessment of Mrs C’s mental capacity to act as executrix of her late husband’s will. The psychologist also assessed Mrs C’s capacity to make decisions about where she should live. The psychologist concluded that Mrs C lacked the mental capacity in both areas.
The psychologist also said: ‘Mrs C was consistent and clear in her opinion that she wished to stay living in her current care home, and I believe this is an expression of her wishes and feelings as opposed to a capacitous decision.’
Meeting – 27 September 2021 The social worker, the Home’s manager, Mrs C and Mr B had the meeting to discuss where Mrs C would live.
The minutes of the meeting say: ‘[Mrs C] said she wants to stay at [the Home]… she would not like to leave. [Mrs C] said this several times during the meeting and was very clear about her wishes, thoughts and feelings.’
Mr B showed Mrs C photos of the care home he had chosen for her. He said it was in a very nice area and only five minutes from his house so he could visit every day. Mrs C said she wanted to stay at the Home.
Mr B said to Mrs C that, although he had listened to her views on the situation, ultimately the decision was his to take.
On 28 September 2021, the Council said it would carry out a DoLS assessment as a DoLS application had been made.
Complaint – 5 October 2021 Mr B made a further complaint after he obtained Mrs C’s records. He said: The social worker said Mrs C had mental capacity yet she authorised the Home to obtain a DoLS order. (My understanding is that this refers to the conversation on 29 June 2021 between the social worker and the care home manager).
Mr B contacted the social worker on 8 October 2021. He said a best interest assessor had contacted him about the recent application for a DoLS authorisation for Mrs C. He had not been given any prior notice of this application.
The Council noted that the Home should have given notice to Mr B of its application so it contacted the Home. The Home said that it had told Mr B that they were applying for a DoLS authorisation. The social worker wrote back to Mr B and explained the DoLS process to him.
DoLS assessments – 25 October 2021 A psychiatrist assessed Mrs C and said she lacked capacity to make decisions about where she should live.
A best interest assessor visited Mrs C twice on 25 October 2021. Mr B was present during the second visit.
The assessor said that ‘… when [Mrs C] speaks with her family, she does wish to live closer to them and when speaking with the care home staff, she does enjoy her stay at [the Home]’. The assessor felt that Mrs C may feel pressure from either party to make a decision. She may also try to please who she was speaking to which may explain why she had expressed different views on the matter. However, during the two conversations the assessor had with Mrs C, she said ‘frequently and consistently’ that she wanted to move closer to Mr B.
The assessor said she had taken Mr B’s view into consideration and said Mr B had presented her with a folder of documents which included a 10-page document which explained why it would be in Mrs C’s best interests to move closer to him.
The social worker rang Mr B the next day and informed him that the outcome of the assessment was that Mrs C said she wanted to move closer to Mr B. They discussed the practicalities of the move which was now planned to go ahead.
The DoLS approval was granted on 5 November 2021 with a recommendation that Mrs C should be given the opportunity to move closer to Mr B. The Council closed the case as there was no longer any need for its involvement.
Sadly, Mrs C passed away on 6 December 2021.
Council’s response to the complaint – 24 December 2021 The Council responded to Mr B’s three complaints and said: Mr B was informed on 29 June 2021 that the CHC Checklist would be carried out on 30 June 2021 and agreed for it to go ahead without his involvement. The Council then offered Mrs C a further CHC Checklist which Mr B could attend.
Mrs C was deemed to have capacity to make decisions about where she wanted to live so she was not entitled to an independent mental capacity advocate.
Mr B was involved in the decision making and there was frequent communication with him. However, Mr B was involved as a relative, not as Mrs C’s attorney. Mr B could not use the LPA for health and welfare while Mrs C had capacity to make the decisions.
There was a meeting between all concerned on 27 September 2021 and Mrs C told everyone that she wanted to stay at the Home.
Mrs C then changed her mind and said she wanted to move. Mr B was supporting her with the move.
Council’s response to the Ombudsman The Council made the following comments to the Ombudsman and said: Mrs C was assessed as having capacity to decide where she wanted to live between July and September 2021.
The social worker had been advised that the Home should raise a safeguarding referral if Mr B tried to move Mrs C against her will. At the time, Mrs C had been assessed as having capacity to make that decision so a move would have been unlawful and the Council would have had to investigate the matter under section 42 of the Care Act 2014.
Mr B emailed the worker to say the CHC Checklist could go ahead on 30 June 2021. I asked the Council to send me Mr B’s email but the Council said it could not find it.
The social worker assessed Mrs C on 1 July 2021 and said she lacked the capacity to sign the CHC Checklist document. The social worker therefore sent the document to Mr B to sign as he held an LPA for health and welfare. I asked the Council to send me a copy of the mental capacity assessment dated 1 July 2021. The Council said the assessment was not written up but it referred to the file note of the meeting on 1 July 2021. This file note made no reference to a mental capacity assessment in relation to the CHC Checklist.
Analysis Mental capacity and decision making I have grouped these complaints together because they are linked.
It is not for the Ombudsman to decide whether Mrs C had the mental capacity or not to make certain decisions. I can only consider whether there was any fault in the way the Council assessed Mrs C’s mental capacity.
I have not found fault in the four capacity assessments the Council has sent me. The social worker carried out the assessments in line with the Mental Capacity Act and Code of Practice. She applied the two-stage test and considered the four questions which the Code of Practice recommends. She asked relevant questions and set out the reasons why she came to her conclusions.
I appreciate that Mr B disagreed with the assessment dated 1 July 2020 which said Mrs C had the capacity to decide where she wanted to live, but the Ombudsman cannot question the merit of a decision if there is no fault in the way the decision was made.
Mr B also said there was a contradiction in the Council’s position that Mrs C had capacity to decide where she wanted to live, but not to be an executrix of her husband’s will. However, that does not mean there was fault. The assessments were time and decision specific therefore the conclusions could be different.
The disagreement between the Council and Mr B about Mrs C’s capacity led to the disagreement about Mr B’s decision-making powers. Mr B wanted to rely on the LPA for health and welfare to make decisions whereas the Council said he could not do so.
The problem was made worse by the fact that, between June and September 2021 Mrs C gave different views of where she wanted to live to Mr B and the Home and the Council. Mr B and the Council were trying to help Mrs C in achieving what she wanted, but as Mrs C told Mr B that she wanted to leave, but told the Council she wanted to stay, it meant that both sides were in conflict. However, I cannot say there was fault in the Council’s actions in acting on what Mrs C told them what she wanted to do.
I note that on 13 September 2021, Mrs C told the psychologist instructed by Mr B that she wanted to stay at the Home. She told Mr B and the Council the same at the meeting on 27 September 2021. Therefore, at this stage Mrs C was telling both sides in the conflict that she wanted to stay at the Home.
Mrs C then told the best interest assessor on 25 October 2021 that she wanted to move to be nearer Mr B. I note the Council changed its position which was the appropriate action to take.
Appointment of an advocate I agree with the Council that the appointment of an Independent Mental Capacity Advocate was not appropriate in this case as Mrs C had been assessed as having capacity during the time there was the dispute about where she should live (July to September) and, in any event, Mrs C had Mr B to represent her, if she lacked capacity.
However, as there was a disagreement about Mrs C’s mental capacity and where she should live, I agree that the appointment of a Care Act advocate was useful to get an independent view on what Mrs C really wanted. I note the Council appointed a Care Act advocate in July 2021 which was the appropriate action to take.
Safeguarding Mr B said he wanted a safeguarding enquiry in his initial correspondence. Mr B later clarified that he wanted a safeguarding into the Council. He then later complained about the Council raising a safeguarding referral, about his involvement.
I note the Council did not start a safeguarding enquiry at the time as it was of the view that the threshold for a safeguarding enquiry was not met. I cannot say there was fault in its decision to raise a safeguarding referral. However, ultimately this was a case where there was a disagreement about Mrs C’s mental capacity and a disagreement about where she should live. If no agreement had been reached, then either side could have made an application to the Court of Protection.
CHC Checklist There was fault in the Council’s actions in organising the CHC Checklist assessment. The Council did not follow the correct process in terms of assessing Mrs C’s capacity to engage in the process or give her the opportunity to have a representative at the assessment.
The Council emailed Mr B on 29 June 2021 that it would carry out the assessment on the next day. The Council says Mr B replied by email agreeing the assessment could go ahead. Mr B says he never received the email from the Council and never sent an email to the Council in reply. As the Council has not been able to send me a copy of Mr B’s email, I conclude that he never sent the email. I also question whether a day’s notice was sufficient.
I cannot find any evidence that the Council explained the Checklist process to Mrs C or offered her an opportunity to be involved.
The Council says the social worker assessed Mrs C’s capacity on 1 July 2021 and concluded that she lacked capacity to consent to the CHC Checklist. However, the Council has not been able to provide any evidence of this assessment.
There is however evidence to the contrary. The social worker sent an email to the Home on 2 July 2021 asking the staff to obtain Mrs C’s signature on the CHC Checklist consent document. She sent a further email on 20 July 2021 chasing the Home as she had not received the signed consent document yet. This showed the social worker was working on the assumption that Mrs C had capacity in relation to the CHC Checklist.
The social worker visited Mrs C on 22 July 2021 and assessed Mrs C’s capacity in relation to the CHC Checklist. The note of the visit was unclear but it is my understanding that the social worker concluded that Mrs C lacked capacity to sign the CHC Checklist document.
The social worker then tried to obtain Mr B’s retrospective approval. If there were concerns about Mrs C’s capacity in this respect, the capacity assessment should have been carried out before the Checklist was completed, not after.
I cannot say whether Mrs C suffered an injustice because of the fault. I cannot speculate whether it would have made any difference to the outcome of the CHC Checklist. As I explain in paragraph 100, the CHC Checklist itself is outside of the Ombudsman’s jurisdiction.
I also note that the Council offered to carry out a further CHC Checklist to Mrs C once Mr B made his complaint, so this offer remedied the injustice to a large extent.
DoLS I do not uphold Mr B’s complaint that the social worker said Mrs C had the capacity to make decisions about where she wanted to live, but then advised the Home to make a DoLS application. The social worker assessed Mrs C to lack capacity to make the decision on 1 June 2021 so she asked the Home’s manager on 29 June 2021 whether the Home had made a DoLS application. The manager said she had not as she was of the view that Mrs C had the capacity to make that decision. This then prompted the social worker to carry out a further assessment on 1 July 2021 where she concluded that Mrs C had capacity and therefore a DoLS was no longer necessary.
Once the Home had made its application for a DoLS authorisation, it had a duty to tell Mr B that it had done so. The Home says it told Mr B although Mr B says he did not find out about the application until the best interest assessor contacted him in October. It is difficult for me to comment, but in any event, Mr B did not suffer a significant injustice. The documents showed that he was consulted as part of the process and the best interest decision that was made was the decision that Mr B wanted.
Final decision
I have closed the investigation. There was no fault in the way the Council assessed Mrs C’s mental capacity and its communications about the decision making. There was some fault in organising the CHC Checklist but I cannot say if this caused any injustice and, in any event, any possible injustice was remedied by the offer of a further Checklist.
Parts of the complaint that I did not investigate I have not investigated the content or conclusions of the CHC Checklist. The CHC Checklist forms part of the decision-making tools under the framework of NHS funding. Mr B could have asked the CCG to reconsider the decision if he was not in agreement with the outcome of the CHC Checklist. Complaints about the NHS are outside of the Ombudsman’s jurisdiction. The Parliamentary and Health Service Ombudsman investigates complaints about the NHS.
Investigator's decision on behalf of the Ombudsman