London Borough of Croydon not at fault for its decision to keep a couple in their current care home, as it followed the Code of Practice set out in the Mental Capacity Act 2015 properly.

Decision Date: 27/03/2020

What Happened

Mr X complained on behalf of his parents in law, Mr and Mrs Y. 

Mr and Mrs Y lived together at a care home (care home A), assuming from the report that it was council funded. 

In June 2019 Mr X expressed to the Council that he and his family wanted to move them to a different care home, as they were concerned about the care they were receiving. The report did not elaborate on the concerns or wider circumstances of the care. 

Mr X identified a suitable alternative placement. The Council initially agreed to the move, but stated it would need to contact Mr and Mrs Y for their opinion. 

Mr and Mrs Y were allocated a social worker to review the care at care home A. It is not known whether the social worker considered the need for Mr and Mrs Y to be supported at the review. This review highlighted that Mr Y said, “I don’t mind staying here I feel ok in myself”, and that he had no complaints. There was no concern about Mr Y’s capacity to make this decision.

The report stated that Mrs Y seemed to be confused about where she was, and that she appeared unwell. While the report does not states whether the planned review went ahead, it identifies that the social worker visited again with someone from the Council’s safeguarding team two weeks later, in mid-July, to complete a mental capacity assessment. 

This assessment concluded that Mrs Y did not have capacity to make a decision about where she lived. It stated that Mrs Y was “unable to make the specific decision because she appeared unable to recall what the options were and was unable to recall the conversation when asked”.

A Best Interest Meeting was held in August, but Mrs Y was too unwell to attend. Mr Y was there, along with two social workers, and Mr and Mrs X. The LGO stated that after examining the minutes of the meeting, he was satisfied that all parties were consulted and offered the chance to present their views. 

Mr Y read out a prepared statement outlining how he was unhappy with care home A, and that he did indeed want to move. 

When questioned further during the meeting, Mr Y said he could “not really say if he wanted to move to another care home because he needed to discuss this with his wife and agree together what they wanted to do”. This change of view appears to underpin the Council’s decision to carry out a best interest decision process for both parties, rather than solely for Mrs Y. 

The ‘Chair’ concluded that other family members should be consulted before a final decision was made. This included discussion with Mr and Mrs X. The council did explore their preferred home and alternative options but the issue here was about whether it would be in Mr and Mrs Y’s best interests to move at all. 

Copies of emails between family members and the Council highlighted Mr & Mrs X’s dissatisfaction with the way the Council was dealing with the request to move Mr & Mrs Y. 

The Council completed the actions agreed at the Best Interest Meeting, and it was determined that it was not in Mr & Mrs Y’s best interests to move.

What was found 

Overall, the LGO found no fault in the way the Council acted in deciding it was not in Mr and Mrs Y’s best interests to move care homes.

The Mental Capacity Act 2005 gives clear guidance of the process a Council should follow where a person’s capacity to make decisions is in doubt, and where there is a difference of opinion between family members and the Council.

When Mr X first contacted the Council to request a move, a social worker visited Mr and Mrs Y to ascertain their wishes, and confirm their capacity to make the decision. The Council acted correctly in doing so. 

It was initially determined that Mr Y had capacity to decide whether he wanted to move. However, when he was questioned about his opinion during the best interests meeting, he appeared confused and unsure, which cast doubt on his reasons for changing his opinion. The Council took account of this in its decision making which it was entitled to do so.

The LGO stated that there was no fault in the way the Council initially assessed Mrs Y’s capacity. 

Furthermore, there was no fault in the way the Council conducted the Best Interests Meeting. The LGO found that all parties were offered sufficient opportunity to present their views, and these views were appropriately considered.

There was no evidence of delay from the Council in completing the capacity assessment and best interest process. 

The LGO concluded that the Council adhered to the code of practice set out in the Mental Capacity Act 2005 correctly

Points for the public, service users, family and peer supporters, advocates, and councils etc

The LGSCO found no fault with the way in which the Council carried out the assessment of capacity and subsequent decision-making in respect of Mr and Mrs Y. This has enabled clarity for  their family members who were unhappy with the decision by the Council but has enabled them to exhaust the routes of complaint in this regard. 

This reflects the importance for Councils to respond in line with law and guidance when faced with conflicting views of family members. Where there is conflict this does not negate the decision-maker’s responsibility, nor does it allow him to ignore views of concerned family members. The Mental Capacity Act 2005 (s.4(7)) requires the following:

He must take into account, if it is practicable and appropriate to consult them, the views of—

  1. anyone named by the person as someone to be consulted on the matter in question or on matters of that kind,
  2. anyone engaged in caring for the person or interested in his welfare,
  3. any donee of a lasting power of attorney granted by the person, and
  4. any deputy appointed for the person by the court,

as to what would be in the person’s best interests .

The Mental Capacity Act 2005 Code of Practice offers further guidance for decision-makers when faced with a situation of conflicting views. It states that  decision-makers must always ensure that the interests of those consulted do not overly influence the process of working out a person’s best interests (paragraph 5.67). The relatives of Mr and Mrs Y were concerned about the quality of care within the home and wanted Mr and Mrs Y to move. The council have correctly used the guidance to take into account these views in determining what really was in the best interests of this couple. 

If you want help, please consider seeking advice from CASCAIDr via our referral form on the top bar menu of the site.

The full Local Government Ombudsman report of Croydon Council’s actions can be found here

https://www.lgo.org.uk/decisions/adult-care-services/residential-care/19-007-129

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