Ombudsman recommends council review triaging procedures for Deprivation of Liberty Safeguards requests

The Local Government and Social Care Ombudsman has found Stockport Metropolitan Borough Council at fault for depriving a woman of her liberty without an authorisation, and failing to involve her attorney in a best interests meeting to decide on a new placement.

Following investigation, the watchdog recommended the council review its triaging procedures for Deprivation of Liberty Safeguards (DoLS) requests, “to ensure they comply with the requirements of Schedule A1 to the Mental Capacity Act 2005”.

The complainant, Mr X, complained in his own right and on behalf of his wife, Mrs X, that the council placed restrictions on their contact with their mother / mother-in-law, Mrs Y, who lives in a care home which the council commissions.

He also complained that the council “cancelled a meeting to discuss the matter”, “delayed investigating their concerns about Mrs Y’s care” and “refused to share evidence”.

Mr X said this caused Mrs Y distress and a restriction on her freedom because she had been denied visits from him, private contact with Mrs X and trips out of the home with both of them.

Outlining the background to the case, the Ombudsman said Mrs Y has dementia. Mrs X and another relative are her attorneys for health and welfare.

The Ombudsman added: “The complaint involves two care homes which I have called the first care home and the second care home. Mrs Y moved into the first care home in 2022. She moved to the second care home in September 2023 at short notice following events summarised in this statement.”

At the start of August 2023, Mr X emailed the council’s generic social care email address asking for a change of placement for Mrs Y and raising specific concerns about her care in the first care home. He also said Mrs Y was being “held in an institution against her will.”

There were two separate incidents in September involving Mr X and Mrs X when they were visiting Mrs Y at the first care home.

The Ombudsman said: “The first care home and Mr and Mrs X dispute what happened, with allegations and counter allegations of inappropriate behaviour on both sides.”

The council received safeguarding concerns from the first care home about:

• Mr and Mrs X moving Mrs Y without using a hoist
• Mrs Y being intoxicated following a visit out of the care home
• Mrs X forcing Mrs Y’s dentures into her mouth
• Mr X being verbally and physically aggressive to staff.

Mr X emailed the council the day after the incident involving him and gave his version of events. He said the first care home’s staff had removed Mrs Y’s wheelchair and he made allegations about senior staff behaving inappropriately on the day.

The council identified a second care home which had a vacancy and could take Mrs Y.

The Ombudsman noted: “The Council told me it conducted a mental capacity assessment and made a best interest decision to move Mrs Y. It has provided me with capacity assessment and best interest decision dated 15 September, but this includes a statement that Mrs Y agreed to the move to the second care home on 18 September but changed her mind.

“The Council told me Mrs X then changed her mind, leaving two voicemail messages saying she had withdrawn her consent. By this time Mrs Y was already on her way to the second care home. The safeguarding record said council officers agreed it was in Mrs Y’s best interests to move to the second care home.”

The council drew up a “contract of expectations” for the second care home placement and asked Mr and Mrs X to sign it. They refused.

In October, the council started the process of authorising Mrs Y’s deprivation of liberty in the second care home. A Best Interests Assessor completed the relevant paperwork noting:

• At first Mrs X consented to the placement at the second care home, but then withdrew her consent;
• Currently, the family were not allowed to visit;
• The family had made some amendments to the contract of expectations. They were not happy about the lack of end dates or resolution.

Senior staff at the second care home said at the start of November that family members could all visit in the communal area and to let staff know on the day.

There was a meeting with council officers, managers, Mrs X and other family members (but not Mr X) to resolve issues about contact. The second care home said it was keen to promote contact. Mr and Mrs X needed to sign the contract of expectations and if they would not, virtual contact was permitted with one day’s notice to allow staffing arrangements, the report noted.

The council issued a standard authorisation for the second care home from 3 November. It expired on 12 February 2024.

The paperwork noted the three-month period of authorisation should allow enough time for the council to apply to the Court of Protection.

The council told the Ombudsman at the start of the investigation that it had not applied to the Court of Protection and was “monitoring the situation”.

It said Mr and Mrs X could visit Mrs Y in communal areas and other family members could visit Mrs Y in her bedroom.

Mr X told the watchdog that he did not think he was allowed to visit Mrs Y in the second care home and so he had not done so.

Looking at whether the council was at fault to place restrictions on Mr and Mrs X’s contact with Mrs Y, the Ombudsman said: “There is no fault in issuing a written agreement which sets out expectations around visitors’ behaviour where there has been a history of disputes and concerns. Guidance from the CQC does not give relatives and residents absolute rights and there is discretion to limit contact where there are concerns raised around behaviour. This is justifiable on the grounds of staff and resident welfare and safety.”

However, the Ombudsman observed that there was some confusion about whether or not Mr X was allowed to visit.

The watchdog noted: “This lack of clarity is fault causing avoidable distress for Mr X and Mrs Y and a missed opportunity for visits.”

Further, the investigation found a failure by the council to act in line with the DOLS and to deliver Mrs Y’s care in line with Regulation 13(5) of the 2014 Regulated Activities Regulations.

The faults identified were as follows:

• The council did not carry out the DOLS assessments in the first care home in response to the first care home’s request in 2022.
• There were no DOLS assessments carried out for earlier placements although the records indicate the council had received requests and triaged them as low risk and placed Mrs Y on a DOLS assessment waiting list. Unauthorised gaps where a person is being deprived of their liberty are not permitted.
• The council did not issue a standard authorisation for the second care home until two weeks after Mrs Y moved in.

The investigation also found a failure to involve Mrs Y’s attorney in a best interests meeting to decide on a new placement, a private contract should not have been issued, and a complaint response lacked detail.

To remedy the injustice caused, the Ombudsman recommended the council to issue:

• a written apology for the avoidable distress, confusion and frustration.
• a payment of £250 to Mr and Mrs X, as a symbolic payment for the distress and confusion caused.
• a payment of £500 to Mrs Y.

Further, the watchdog recommended the council to review its triaging procedures for DOLS requests, “to ensure they comply with the requirements of Schedule A1 to the Mental Capacity Act 2005”.

Cllr Keith Holloway, Cabinet Member for Health & Adult Social Care said: "Stockport Council acknowledges the findings of the Local Government and Social Care Ombudsman. We take such matters seriously and are committed to learning from this outcome to improve our services. Our priority remains the wellbeing and care of our residents, and we have taken steps to ensure similar situations are avoided in the future. We will continue working closely with care providers to uphold high standards of care across Stockport."

Lottie Winson