The Ombudsmen and DOLS
This investigation, relating to the use of the DOLS regime, made a joint finding of maladministration by Kirklees Metropolitan Borough Council (the ‘Council’) and the South West Yorkshire Partnership NHS Foundation Trust (the ‘Trust’). This concerned their arrangement of care packages for two dementia sufferers (Mr and Mrs X).
The focus of the Ombudsmen’s investigation related to a complaint about the assessment and arrangement of care by the Council and the Trust for Dr X’s parents (Mr and Mrs X). The investigation focused on the Trust’s and Council’s failure to communicate properly with Dr X when preparing a care package for his parents, and the subsequent injustice felt by him and his parents as a result of this. The investigation identified four key incidents.
The first ‘communication failure’ occurred when Mr X was admitted to hospital with acute glaucoma. Despite Dr X informing the relevant authorities that he believed Mr X’s injuries had been caused by a blow administered by Mrs X, this was ignored. A report was not followed, and a safeguarding alert was never raised. Mr X was then hastily discharged from hospital and returned home, living with an inadequate care package for some months. Mrs X’s impaired capacity, and the allegations of physical abuse, should have instead triggered a safeguarding investigation in order to ensure that Mr X’s discharge from hospital was handled appropriately.
The second incident occurred following a deterioration in Mrs X’s condition. After her needs began to increase, she was admitted to hospital for a period of 6 weeks whilst Mr X was taken into respite care. During this time, Dr X arranged a care package which involved providing care through a ‘registered general nurse’ once Mr X returned home. But this was rejected by the Council and the Trust, who declared that this fell short of Mr and Mrs X’s requirements. Instead, a package was arranged that ordered Mr X to stay in a respite placement, after a DOLS authorisation was granted for this. However, when coming to this decision, Dr X was neither involved nor consulted. This is only acceptable if a council does not think it is practicable and appropriate to consult a best interests consultee; and the Code recommends that reasons for that conclusion should be recorded.
The third occasion of maladministration was when the Trust informed Dr X of the recommendations to place his parents in separate homes. When Dr X was told of the arrangements via written correspondence, a copy of the letter was sent to Mrs X, who was very distressed to read the recommendations. The investigation concluded that the letter should never have been sent to her, and that the Trust were insensitive in communicating the news in this way. This applied the law in AB v Tameside and Glossop Health Authority which found that a person could be liable for communicating untrue news or insensitively communicating true news.
And the final incident referred to in the investigation concerned the failure of the Trust to reassess Mr X’s prescription for a dementia drug (Aricept), in accordance with the NICE guidance.
Ultimately, the Ombudsmen’s investigations declared a joint finding of maladministration by Kirklees Metropolitan Borough Council and the South West Yorkshire Partnership NHS Foundation Trust, relating to their use of the DOLS regime. The Council and the Trust were ordered to apologise to Dr X, and Mr and Mrs X. They also agreed to review the way in which they involve family members in the process of arranging care packages for relatives with dementia, and review their arrangements for responding to complaints. Regarding the problems concerning Mr X’s prescription, the Trust agreed to review the way that it reassesses prescriptions for such drugs, in accordance with the NICE guidance. In compensation, the Council and the Trust agreed to pay £1000 to Mr and Mrs X for the distress caused, and further compensation for the personal distress that they specifically caused Dr X (£500), and Mrs X (£250) when opening the letter regarding the separation arrangements.
Whilst this investigation did not establish anything new, by simply drawing upon the decision in London Borough of Hillingdon v Neary & Anor which highlighted the need for clear communication and involvement of families and carers in care planning decisions, the case is nonetheless a recognition of the useful function that Ombudsmen can play within the DOLS regime. In this case, the Ombudsmen provided a useful and free means of reviewing inappropriate use of DOLS. Given their jurisdiction to consider past conduct, they therefore provide a useful alternative to the Court of Protection whose primary focus would always be forward-looking. Also, Ombudsmen have a wider remit than the Courts, given that their task is to examine maladministration, rather than to make findings of illegality. Potential complainants thinking of going down this route, must remember, however, that they have to persuade the Ombudsmen to exercise their discretion to take on a complaint, wherever there is an alternative legal remedy; this they will usually do if it is unaffordable or complex.