A council that moved a man into a care home against his and his family’s wishes, and without an adequate mental capacity assessment, has been strongly criticised by the Local Government Ombudsman.
Cambridgeshire council multiply breached the Mental Capacity Act when it moved the man, Mr N, to a respite placement after needs arising from his dementia increased.
‘No formal assessment’
The move, on 22 June 2013, from the home he shared with his wife was made without social workers having made a formal assessment of Mr N’s capacity to decide on his care and residence, or properly considering his best interests.
In evidence to the ombudsman, the council claimed staff had carried out “informal mental capacity assessments and best interests decisions” in two visits to Mr N in the fortnight before the move.
But the ombudsman, Jane Martin, said there was no proper record of the assessments, and because the first of these visits was designed to see if he needed more day care, she rejected this defense.
Before the move, Mr N had been recorded as saying that he wanted to stay at home, while his wife had objected to the residential placement in Sandpiper House care home, 14 miles and two bus journeys from their home.
Despite case law, including James Munby’s judgement in A Local Authority v A (2010) which states that in the event of objections to such a move, councils should seek the authority of the Court of Protection, the council did not consider doing this.
Social workers recorded carrying out a capacity assessment and best interests decision on 2 July 2013, almost two weeks after the move, which the council claimed was sufficient to justify its decision making.
‘Incomplete and inadequate’
However, the ombudsman pointed out that capacity assessments needed to be made at the time of the decision to move someone against their wishes, under the Mental Capacity Act. She said that the 2 July record was incomplete and the evidence for their reasoning behind the decision was inadequate.
The man and his family wanted him to return home but a council social worker told his daughter that the police would be called if they tried to remove him from the nursing home.
Despite this, the council did not ensure the care home refer the matter to its own Deprivation of Liberty Safeguards team for possible authorisation. This meant that Mr N may have been unlawfully deprived of his liberty, found the ombudsman.
In July 2013, Mr N moved to a nursing home closer to his and Mrs N’s home, with council funding and a top-up paid by the family.
Martin 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.
“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.”
She added that informal and unrecorded assessments and decisions were not sufficient for the council to discharge its duties. She asked the council to apologise to the family and pay them £750.
‘Practice under scrutiny’
Cambridgeshire County Council said it had accepted the finding and apologised for the impact of its actions.
A spokesperson said: “The council is developing a programme of refresher training for staff to ensure that appropriate consideration is given to the Mental Capacity Act, best interest decisions and deprivation of liberty and that staff are able to explain the processes and individual rights to the people they are working with and their families.”
The report comes with social workers’ practice under the MCA under scrutiny. A House of Lords select committee inquiry into the act’s implementation in March last year found it was being widely misused. Among criticisms, it said that capacity assessments were either not undertaken when they should have been or conducted poorly, and the proper process for conducting best interests decisions was often being ignored.
Earlier this month, Essex Council agreed to pay a 91-year-old man £60,000 in compensation for unlawfully depriving him of his liberty for at least 13 months as a result of multiple Mental Capacity Act failings.