LGO urges proper recording of capacity assessments under Mental Capacity Act

Capacity assessments made under the Mental Capacity Act must be recorded properly, the Local Government Ombudsman has said after investigating a case where man was forced to live in a care home against his wishes.

The LGO found that there was insufficient evidence that Cambridgeshire County Council had gone through the proper process.

It recommended that the authority 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 the public on their rights.

However, the local authority rejected the Ombudsman’s finding that it had failed to comply with the Act.

The background to the case was a complaint from Mrs N that Cambridgeshire had moved her husband, who has dementia, into a residential home against both their wishes. She said she had been forced to accept this course of action and the authority failed to properly consider her preference of care home.

The man had been moved to a nursing home 14 miles away from his marital home after his needs increased considerably in June 2013, requiring Mrs N to take two buses to visit. Both Mr N and his family wanted him to be located closer to home.

The LGO said its investigation found the council had decided the man had ‘no capacity to make decisions’ during meetings that were to assess his care needs. However, the council did not complete the proper assessments, it concluded.

According to the Ombudsman, 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,” the LGO said.

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

The LGO concluded that Cambridgeshire:

• failed to act in accordance with the Mental Capacity Act. It did not conduct adequate mental capacity assessments or properly consider best interests.
• did not fulfil its obligations under the Choice of Accommodation Directions.

Finding fault causing injustice, the Ombudsman said Mrs N had been excluded from a proper decision making process that was her right under the Act.

Mrs N and the family had also never been given information about how to appeal decisions to the Court of Protection.

The report added that Mr N “may have suffered the injustice of being unlawfully deprived of his liberty, as no consideration was given to this”.

The LGO recommended that within three months of the issue of the report, the council should:

1. Apologise to Mrs N for the failures outlined in the report. “That apology should accept responsibility for the faults, and acknowledge the impact these had on her. It should also include an assurance that the same faults will not happen again, and explain what steps have been taken to ensure this.”
2. Set a timetable for 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 the public on their rights. “This may involve the council reviewing the current status of residents who may be deprived of their liberty without proper authorisation.”
3. Pay Mrs N £750 in recognition of the distress caused by the failings identified and the time and trouble she had expended in making her complaint.

The Ombudsman’s report reveals that Cambridgeshire accepted that the speed of the decision-making process to move to Mr N to respite care might have caused Mrs N distress.

However, the authority did not acknowledge it failed to comply with the Act and maintained that visits on 10 and 18 June 2013 constituted informal mental capacity assessments and ‘best interests’ decisions.

The council also maintained that a decision record completed two weeks later was sufficient to discharge its duties under the Act.

The LGO countered that the record keeping to support Cambridgeshire’s decision and actions in the case did not comply with relevant principles set out in the 2007 Code of Practice.

Dr Jane Martin, Local Government Ombudsman said: “While I appreciate the difficult choices social workers have to make on behalf of other people, when people’s family life and liberty are at stake it is incredibly important that they get those decisions right, conduct the proper assessments and back those decisions up with clear evidence of their reasoning. The Mental Capacity Act Code of Practice is clear on this.

“Cambridgeshire County Council still does not acknowledge its failure to comply with the Act and maintains that the informal and unrecorded assessments and ‘best interest’ decisions that were carried out prior to the move were sufficient to discharge its duties. I cannot agree.

“As a result this family were left believing that their father was being ‘held prisoner’ against his and their wishes, told they could not remove him from the home, and were not made aware of how they could challenge the situation.”

The LGO’s report can be viewed here.