When informality is inappropriate

The Court of Protection team at 39 Essex Chambers examine a hard-hitting Ombudsman report into a council's treatment of a man with dementia and his family.

The Local Government Ombudsman report into the case of Mr N, a complaint against Cambridgeshire County Council makes, yet again, depressing reading. We take what follows from the summary on the LGO website, but the report should be read in full, and indeed used as a case study for training.

An elderly man, Mr N, who had been diagnosed with dementia in 2011, lived with his wife at home until April 2013, attending a day centre one day a week. His needs began to increase substantially at the start of 2013, and by June 2013 his case was a high priority. The LGO’s report sets out in admirable detail the entirely inadequate process of assessment as regards whether he should be placed in a nursing home (and if, so which) that ensued thereafter.

In consequence of this, Mr N was moved to a nursing home some 14 miles away from his marital home after his needs increased considerably in June 2013, against both the man and his family’s wishes, who wanted him closer to home. This meant that his wife had to take two buses there and back to visit him. The man’s wife, daughter and brother were told the police would be called if they tried to move him from the home. Because the man and his family made repeated requests for him to return home, the council’s Deprivation of Liberty Safeguarding (DoLs) team should have been contacted, but never were.

Social workers completed a Mental Capacity and Best Interest Decision Record in July 2013, but the LGO found that the record was incomplete, failed to include some formal requirements and did not go into adequate detail to explain the reasoning behind the decision.

Following the investigation, the LGO found that the council failed to consider properly whether the man’s placement in the nursing home amounted to a deprivation of liberty. The LGO also noted that Mr N’s family were never given information about how they could appeal [sic] the decision to the Court of Protection.

The LGO asked Cambridgeshire County Council to apologise to the family to acknowledge the impact the faults have had on them and assure them that the situation will not happen again. The LGO also recommended that the council should also provide refresher training for social care staff on mental capacity assessments, best interest decisions, deprivation of liberty, and the role of the Court of Protection and how to advise people of their rights. This may involve the council reviewing the current status of residents who may be deprived of their liberty without proper authorisation. It finally recommended that the council should pay the family £750 in recognition of the distress and time and trouble they had been put to in making the complaint.

Comment

Reading this report alongside the judgment in Essex County Council v RF, it is difficult not to have the impression that Cambridgeshire County Council escaped very lightly, at least in financial terms. This was undoubtedly a Neary case, and the lawfulness of the deprivation of Mr N liberty is – at best – highly questionable (as was the lawfulness of the undoubted interference with his Article 8 rights, and those of his wife).

For present purposes, we want to pick out the following points of particular wider importance:

1. The LGO was highly critical of the informality of the decision-making process (both as to capacity and best interests) an informality that the council continued to defend even during the course of the LGO investigation. The LGO emphasised the importance of complying not merely with the principles of the MCA 2005 but also the provisions of the Code of Practice in undertaking a structured approach to these vital questions;
2. The LGO rejected the council’s contention that it was the care home’s responsibility to notify their DOL team of the potential deprivation of liberty (which the council considered only arose where the person continued to express a desire to return home). The LGO noted that “under s25(7) of the Local Government Act 1974 [relating to authorities under investigation by the LGO], any action taken by the home is considered to be taken on behalf of the Council and in the exercise of its functions. Furthermore, the DoL Code is clear that ’if a healthcare or social care professional thinks that an authorisation is needed, they should inform the managing authority.’ In this case, the Council was acutely aware of the circumstances of and objections to the placement.”
3. The LGO was highly critical of the council’s – acknowledged – failure to give information to Mrs N about her options in terms of taking matters to the Court of Protection;
4. The LGO was also at pains to point out the importance of the Choice of Accommodation Directions even in a case said to be of urgency, and criticised the council by reference to these Directions for its failure both to given sufficient consideration to closer options and to give written reasons for rejecting them.

In part because we are getting somewhat depressed ourselves by reporting upon cases such as these (especially ones where the excuse of the novelty of the MCA 2005 cannot properly be given), we would like to invite our readers to submit examples of good practice* in circumstances such as these that we can highight. They can, of course, be anonymous.

This article was written by the Court of Protection team at 39 Essex Chambers.

* Contact Alex Ruck Keene This email address is being protected from spambots. You need JavaScript enabled to view it..