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Ombudsman warns of risk of determining mental capacity without proper assessment

Family left believing their father was being ‘held prisoner’ against his wishes

Social workers are being reminded that capacity assessments made under the Mental Capacity Act must be recorded properly, after an investigation by the Local Government Ombudsman (LGO) found a man had been forced to live in a care home against his wishes and without sufficient evidence of going through the proper process.

The investigation was carried out after a family complained to the LGO that social workers at Cambridgeshire County Council compelled their father, who has dementia, to move into a care home.

The elderly man 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 investigation found the council had decided the man had 'no capacity to make decisions' during meetings that were to assess his care needs. They didn't complete the proper assessments, when he was moved to the home. According to the Act if a person lacks the ability to decide where to live, the decision to move them can only be taken lawfully if a proper mental capacity assessment and 'best interests' decision is carried out.

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 that year, but 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 has found that the council failed to consider properly whether the man's placement in the nursing home amounted to a deprivation of liberty. And his family were never given information about how they could appeal the decision with the Court of Protection.

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 has 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 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.

The council should also pay the family £750 in recognition of the distress and time and trouble they have been to in making the complaint.

30/1/15