Ignored the complainant’s status as the Lasting Power of Attorney (LPA) holder for their mother and did not communicate with him
15. We carefully considered this complaint component and any impact it may have caused Mr R. We saw an indication of a failing in the Trust’s communication with him, which may have led to some anxiety and anger. We have decided, in the circumstances, the Trust has done enough to put this right.
16. The Mental Capacity Act 2005 Code of Practice (the COP) Chapter 7, paragraph 7.57 says ‘It is good practice for decision-makers to consult attorneys about any decision or action whether or not it is covered by the LPA. This is because an attorney is likely to have known the donor for some time and may have important information about their wishes and feelings.’
17. This means that it would have been good practice for the Trust to have contacted Mr R and update him with any actions it took, and include him in decision making, related to his mother’s care.
18. Mr R complains the Trust did not involve him, nor include him, in any decision making about her care. He says the Trust also discharged her from hospital without informing him or her family. We will consider the discharge aspect if this complaint later.
19. The Trust has acknowledged there was a breakdown in communication and there was no record of an LPA in the admission papers. It said it now has an electronic admissions process which prompts clinicians to enquire about, and upload, the details of any LPA which would prevent this happening in the future. The Trust has apologised for the breakdown in communication and for the oversight in recording details of the LPA.
20. In considering this complaint component we spoke to our adviser who confirmed there is relevant guidance a clinician should rely upon when providing care around a patient who has an LPA appointed for them.
21. Our advisor has referred to the Mental Capacity Act 2005 which has guidance on what should happen with LPA’s whilst in hospital. The Mental Capacity Act 2005 states that LPA means that Mrs R (the donor) has named her son (the attorney) as holding the LPA for health and welfare. This means Mr R would be responsible for, and make, decisions for any routine medical care that Mrs R would receive, including when and where this should happen.
22. The Trust has acknowledged it did not do this. As we have mentioned, the Trust should have consulted and updated Mr R as the LPA for his mother. In the circumstances we consider Mr R would have wanted to know what was happening with his mother’s care and to be consulted on decisions around it.
23. We consider this impact to fall into level one of our severity of injustice scale, which says: ‘A case will generally be level one if we consider the person affected has experienced a low impact injustice such as annoyance, frustration, worry or inconvenience. This would typically arise from a single (one-off) incidence of maladministration or service failure, where the effect on the person complaining is of short duration, and where there are no other adverse effects or ongoing wider impact. We will usually consider an apology to be an appropriate remedy for these cases.’
24. We next considered what the Trust has done to put this right. The Ombudsman’s Principles for Remedy says:
‘It can benefit the public body as well as the complainant, by showing its willingness to: • acknowledge when things have gone wrong • accept responsibility • learn from its maladministration or poor service…
An appropriate range of remedies will include: • an apology, explanation, and acknowledgement of responsibility • remedial action, which may include reviewing or changing a decision on the service given to an individual complainant; revising published material; revising procedures to prevent the same thing happening again; training or supervising staff; or any combination of these…’
25. As the Trust has acknowledged not involving Mr R, it has apologised, and implemented changes in attempt to prevent similar incidents happening again, we consider this enough to put things right, in the circumstances.
A deprivation of liberty safeguard (DoLS) was not put in place, as he says she was unable to give her consent to being there or to be given any of the treatment.
26. We have considered this aspect of the complaint and we have seen an indication of a failing. We think the Trust should have considered a DoLS in Mrs R’s case but we have seen no evidence it did this. We considered it would have led to Mr R feeling some frustration and worry, but we consider the Trust has done enough to put this right.
27. ‘Deprivation of Liberty Safeguards (DoLS) at a glance’ explains, under the Mental Capacity Act 2005, an organisation like the Trust must first determine if a patient lacks capacity to make decisions. If the patient is deemed to lack capacity, then any decision, including applying a DoLS, must be considered in their best interest.
28. We next considered whether it would have been appropriate in Mrs R’s case. Our adviser helped us understand this. They explained that records show Mrs R had dementia and fluctuating capacity so she would not have been deemed safe to leave the hospital even if she wanted to. We can also see she had been placed on a DoLS on a previous hospital admission a couple of months earlier, on 19 April. This strongly indicates the Trust should have considered a DoLS again on this admission.
29. Mr R says the Trust did not put a DoLS in place which it should have done because his mother was unable to give her consent to being there or to be given any of the treatment. Mr R says this caused him and their family upset and stress.
30. Within the response from the Trust, it acknowledges Mrs R should have been placed under a DoLS and not doing so was an oversight.
31. When considering the evidence available to us, we can see it would have been appropriate to consider a DoLS here. We cannot see evidence the Trust considered a DoLS in Mrs R’s case when it should have.
32. This is an indication of a failing. We are pleased to see however, the Trust has acknowledged it fell short of what is expected, it has apologised, and taken steps to avoid this happening again.
33. We recognise this would have caused Mr R and his family stress and worry. In line with our scale of justice we consider this too to falls in level one of our scale. The Trust has apologised and implemented service improvements. This includes reviewing the training it has and providing further training to staff about the MCA and DoLS.
34. In the circumstances we would not ask the Trust to do anything further and we have decided this is enough to put things right.
Discharged their mother without informing the family.
35. We have considered this aspect of the complaint and seen there is an indication of a failing. The Trust did not contact Mr R or his family when it discharged Mrs R. This led to Mr R feeling stressed and worried. We have seen the Trust apologised for this and implemented service improvements to avoid it happening in the future. In our view this is enough to put things right.
36. As we have mentioned previously, the MCA states the person holding the attorney is responsible for making routine decisions about the donor’s healthcare. This also includes decisions about discharge from hospital. Like with the other issues, the Trust should have contacted Mr R to involve him in decision making about his mother’s discharge from hospital as this would be best practice.
37. Mr R says, on June 26 2022, he called Ward 11 and was informed that it discharged his mother the previous night without contacting him or the family.
38. The Trust acknowledged it did not contact Mr R. It says this was because the discharge assistant works closely with the social work, therapists, and nursing team to coordinate a safe discharge.
39. As with other aspects of this complaint the Trust has acknowledged it did not contact Mr R in the circumstances when it should have done so. This is not in line with the MCA relating to LPA holders.
40. We can see how this would have caused Mr R stress and worry. Particularly as he found out after the fact his mother had been discharged from hospital. This level of injustice would fall into level one of our scale. Next, we considered what the Trust has done to put this right.
41. Including the electronic admission process which prompts staff to enquire about and upload LPA details which we mentioned earlier, the Trust has sincerely apologised for the oversight of not contacting Mr R about his mother’s discharge.
42. We can refer again to our Principles for Remedy and we can see the Trust has made efforts to avoid the same mistakes happening again, as well as apologising for what happened. In the circumstances we consider this enough to put things right.
43. We will therefore take no further action on Mr R’s complaint. We do not wish to downplay the impact these events had on him or his family. We hope we have clearly explained out decision.