How ignorance about the Mental Capacity Act can land councils in trouble

Cambridgeshire County Council was found guilty of maladministration causing injustice by the Local Government Ombudsman, a salutary lesson for managers who do not keep up with the law and put pressure on their staff to operate on a ‘business as usual’ basis. Belinda Schwehr explains.

In a complaint involving the Local Government Ombudsman (LGO), rather than the courts, Cambridgeshire County Council was found to have failed to act in accordance with the Mental Capacity Act, not conducting adequate mental capacity assessments, or properly considering best interests. In addition, the Council did not fulfil its obligations under the Choice of Accommodation Directions.


Mr N was an elderly man, with dementia, and wandering a great deal, to the consternation of the local police.


Officer A had visited Mr and Mrs N at home with his manager, a senior social worker, on a given date. The Council’s notes said the purpose of the visit was to “explore the relationship between (Mr and Mrs N) and assess safety issues”. The Council’s notes said that Mrs N “seemed to accept that she cannot (on her own) look after (Mr N) in an appropriate way and that they will both benefit from a period of respite”. Mrs N said she would want her husband placed in a home close by due to ‘transport issues’.


Best interests

There was no reference on that first assessment or the case notes from that visit, to Mr N lacking capacity or to any best interests decision.


A couple of days later, Officer A telephoned Mrs N to say he had provisionally booked respite at a care home 14 miles away (Sandpiper House). Mrs N said that she did not want to travel that far. She said she wanted her son, Mr P, to be part of the decision making process and asked Officer A to telephone her again later that day.


When Officer A telephoned again as agreed, the notes said that Mrs N ‘flatly refused’ to agree with the respite placement. The notes say Officer A ‘assured’ Mrs N he would try to place Mr N closer to the marital home when a vacancy became available.

Officer A telephoned Mr P, the son, on the evening of 19 June 2013 to “enlist his support in persuading his mother to accept respite for her husband”. Two days later, the manager of Sandpiper House visited Mr N at home to carry out an assessment. Officer B records a telephone call from that manager, who had concluded that Mrs N “did not wish her husband to go there for respite”.


Top ups

Mrs N had reportedly told the manager there was a vacancy at Primrose Lodge, only 100m away from their home, and that she would have preferred her husband to go there. Officer B recorded in the notes that Mrs N was aware Primrose Lodge did not accept the Council’s fees and that “a top-up could not be made for respite, even if (Mrs N) agreed to pay it, which would be unlikely”.


As the ombudsman recorded, this information was simply wrong; top-ups can be made for respite placements. The Council acknowledged this in its response to the enquiries. The Council also acknowledged and apologised for not consulting the family about their ability to pay a top up at this stage.


As far as the ombudsman was concerned, clearly a placement at Primrose Lodge would have been less restrictive, as it was close to the marital home, in Mr N’s local area. It appeared to the LGO that the Council gave no consideration to this option, once it became clear the home did not accept the Council’s benchmark. This was despite the Council viewing the situation with Mr N as ‘urgent’. Furthermore, no action was taken in respect of another home four miles away.


In my view, any LA that thought that this was what was needed, for the management of the situation, in terms of overall suitability, taking the emotional and psychological wellbeing of the person and the enhancement of that from visiting, already owes a duty to pay the full cost, and this is what has been missed by even the Ombudsman.


The manager of the care home had noted “no capacity to make decisions”. The manager had selected options that stated that Mr N appeared to lack capacity; but no two stage mental capacity assessment had been completed; and no best interest care plan had been formulated.



Officer B said the ultimate responsibility for entry to the care home lay with the GP. The ombudsman, however, said this:

– the Council had ‘provisionally booked’ a place for Mr N at Sandpiper House

– Officer A tried to ‘enlist’ Mr and Mrs N’s son’s support for the move

– the Council approached Sandpiper House and arranged for the manager to carry out an assessment, and

– the Council approached the GP about Mr N going to the home.


In these circumstances, it was clear that the Council was responsible for arranging the placement.


A few days later, the daughter said she was going to remove Mr N from Sandpiper House. Officer B recorded that she told Mrs O “she was free to do this if she assured me that she was going to remain at her parent’s house and that she would ensure that she provided 24 hour care and supervision to her father”.


This smacks of gross professional incompetence but it would not have simply been one member of staff who decided to lay this particular burden on the wife, we are sure.


Mr N’s brother had asked to take Mr N out with him and Mrs N “but the home manager informed them that this would not be possible and should they try to remove him, they were requested to call the police”.


This is the kind of intimidation of the unaware, through veiled and unconscionable threats, that got Surrey into trouble 4 years ago, with a man in a care home….


Focus on record keeping

The MCA Record in use in this case required the person completing it to record:

• when and where the ‘supportive meeting’ took place and how long it lasted

• in detail how the person was supported to understand the nature of the decision

• the options that could be offered

• the likely consequences of those options, and

• where possible, the person’s own words or response.


The completed record addressed only the first of these requirements. The Council maintained that the visits constituted informal mental capacity assessments and ‘best interests’ decisions, despite no record of any issues or concerns at that visit. The Council also maintained that the decision record completed two weeks later was sufficient to discharge its duties under the Act.


The ombudsman disagreed. The Code says “Anyone who believes that a person lacks capacity should be able to prove their case”; that “Professionals, who are qualified in their particular field, are normally expected to undertake a fuller assessment, reflecting their higher degree of knowledge and experience”; and “An assessment of a person’s capacity to consent or agree to the provision of services will be part of the care planning processes for health and social care need, and should be recorded in the relevant documentation”.


The Code also says that “Any staff involved in the care of a person who lacks capacity should make sure a record is kept of the process of working out the best interests of that person for each relevant decision, setting out:

• how the decision about the person’s best interests was reached

• what the reasons for reaching the decision were

• who was consulted to help work out best interests, and

• what particular factors were taken into account.


Good practice

Finally, the Code outlines that “It is also good practice for healthcare and social care staff to record at the end of the process why they think a specific decision is in the person’s best interests. This is particularly important if healthcare and social care staff go against the views of somebody who has been consulted while working out the person’s best interests.


The LGO recommended that the Council should:

• Apologise to Mrs N who had had to struggle to ensure that her husband was accommodated in a respite home near enough to their home for her to travel to see him. That apology should accept responsibility for the faults, and acknowledge the impact these had on Mrs N. It should also include an assurance that the same faults will not happen again, and explain what steps have been taken to ensure this.

• Set a timetable for 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 the public on their rights.

• Pay Mrs N £750 in recognition of the distress caused by the failings identified and the time and trouble she has expended in making her complaint.


As we enter into the final stage of workforce development for the Care Act, sagas like this only serve to prove that the development of the law may make little difference to staff if they have workloads that make them too busy to keep up to date with legal issues, or too weak to stand up to managerial pressures, and attempting to operate on a ‘business as usual’ basis.



What could have been done


• If the Council had told Mrs N about the place at another home four miles away, she would have had the option of agreeing to this and therefore saved herself significant expense and inconvenience in travelling 14 miles on two buses each day to Sandpiper House.


• If the Council had told Mrs N and her children Mr N could move to Primrose Lodge (100m away) if they could pay a top up, they would have had the option to make such arrangements. They did finally agree to pay a top up at another home, Carlton Court.


• A formal best interests meeting with appropriate attendees may have provided an opportunity to consider all the relevant information and helped to reach a decision more acceptable to all parties. Mr N may have suffered the injustice of being unlawfully deprived of his liberty, as no consideration was given to this.


• The Council did not give Mrs N any information about how to formally challenge the decisions of the Council. This might have helped resolve matters earlier. The Council did not consider referring the case to the Court of Protection.




Belinda Schwehr

Care and Health Law