A few weeks ago a comment on the blog raised the possibility that in some situations it might be more beneficial for those who had been subject to unlawful detention as a result of a breach of the deprivation of liberty safeguards (DoLS) to seek relief from the Local Government Ombudsman (LGO) than the Court of Protection. The commenter highlighted that:
‘If you are lucky enough to get legal aid, you won’t get to keep your damages unless you also get your costs paid by the wrongdoer, and that rarely happens in the COP because of the general rule and the fact that a DOLS breach is usually only one of various issues looked at in proceedings. And, even if you have got legal aid and it is worth pursuing, the courts can be very dismissive about asking for damages – often because it is said that there is no ‘causation’ – the person would have been in the care home even if the proper procedures had been followed – and because of the immense difficulty in showing that an earlier best interests decision was wrong, given how subjective such decisions are.’
We’ve actually seen relatively few published judgments relating to breaches of the DoLS (Neary v London Borough of Hillingdon, 2011, of course being the most prominent example), but those cases are definitely out there. The interesting question is whether the Court of Protection is the only way to address these breaches of the DoLS, or whether the LGO could also offer some relief.
Following this comment I contacted the LGO to ask if they had investigated any complaints relating to the DoLS (I couldn’t see any published reports on their website), and indeed they had. They have very kindly given their permission for me to reproduce some of the investigation reports on this blog, which I will do below. When is the Court of Protection or the LGO the most appropriate route? To a certain extent, it would seem, this is still being worked out. The LGO stated that:
‘The LGO cannot generally pursue a complaint where a remedy exists by way of an alternative remedy. Someone arguing that they are being unlawfully deprived of their liberty would have a right to approach the Court of Protection and the availability of that “legal remedy” would take the matter outside the jurisdiction of the Ombudsman. The Ombudsman cannot direct that a Deprivation of Liberty authorisation is flawed and should be terminated, only the Court can do this. If the Court makes such a determination, but awards no compensation… it would not be right for someone to ask the Ombudsman to address the alleged shortcomings in the Court of Protection procedures.
‘That said, deprivation of liberty issues do fall within the jurisdiction of the Ombudsmen and while the Ombudsmen is not able to bring a deprivation of liberty to an end they are able to consider complaints about how deprivation of liberty has been handled and there is no reason why recommendations should not include payments of compensation although any such recommendations are unlikely to be at the kind of levels courts would operate to.’ (emphasis mine)
Another situation where it seems to me that a complaint to the LGO could be useful, is in those situations that fall outside the scope of the DoLS and where detention should have been authorised by an application to the Court of Protection. The Mental Health Alliance’s latest report suggested that unauthorised detention in settings like supported living was not uncommon. Unless a detention is authorised under the DoLS, a detainee and their family will have no automatic entitlement to legal aid (an oversight which, it strikes me, may be in breach of Article 14 ECHR in contrast with the situation for the MHA and the DOLS). In such cases, where a person cannot afford to make an application to the Court of Protection, the LGO may be a possibility, and a finding of maladministration could even prompt an application to the Court by the supervisory body if it is found they should have done so in the first place.
It is also worth noting that the LGO’s remit covers both the supervisory body (where it is a local authority, which all will be shortly) and any adult social care service, even if privately funded. This enables them to look at the behaviour of both the supervisory body and the managing authority in tandem. Historically the LGO was unable to examine care that was privately arranged, and complaints about care services used to be heard by the Commission for Social Care Inspection (CSCI). However, in around 2008 the CSCI decided apropos of no legal change that it had no power to investigate such complaints and stopped hearing them (sources who were involved in setting up the CSCI said that no such powers were written into the legislation because it was ‘obviously implied’ by their remit). So the LGO became the destination for such complaints, but as these figures which were kindly shared with me by the LGO and the CQC indicate, the volume of complaints received by the LGO is far lower than those previously received by the CSCI:
This is related to the relatively low profile of the LGO, so please do spread the word that they can investigate complaints about publicly and privately funded care providers. And, it would seem, they can also investigate complaints relating to the DoLS. From the reports they have sent me, it seems they investigate them in considerable detail and have a good understanding of the administrative requirements of the schedules. Information about how to make a complaint is available on the LGO’s website.
DOLS related complaints investigated by the LGO
Case 1 – 10 013 715: A case where a DoL application was not made promptly and the care home’s/council’s approach to restrictions placed on the complainant and her mother was flawed.
In June 2008, Melinda’s visits to her mother were restricted. This was because the home felt Melinda’s behaviour distressed staff and residents and was detrimental to her mother’s wellbeing. A variety of conditions were imposed at different times (Deprivation of Liberty Safeguards did not come into effect until April 2009).
In April 2009, Melinda raised more complaints with the council about her mother’s care. Another safeguarding investigation ensued which was inconclusive. It was clear the relationship between the staff and Melinda had broken down. In June 2009, Melinda’s solicitors wrote to the council and asked on what basis, in light of the new DOLS legislation and associated Code of Practice, the Council believed it had the authority to prevent Dorothy from moving to a new care home. No response was received. In July 2009, a safeguarding meeting was held in the home and, following that meeting, Melinda said she was prevented from leaving the home by the home manager who was threatening and harassing her. No safeguarding investigation was launched as Melinda was not a vulnerable adult.
In August 2009, the council’s safeguarding advocate raised the possibility that a deprivation of liberty might be occurring in respect of Dorothy. He advised that the council should carry out a mental capacity assessment. A further meeting was held in September 2009 where it was again suggested that a DoL authorisation was required. In October 2009, the home sought a standard DoL authorisation and granted themselves an urgent authorisation. A standard authorisation was granted in November 2009.
The LGO decided that the original restrictions should have been managed by a suitable risk assessment demonstrating the need for controls and the reasons why. This risk assessment should have been periodically reviewed to ensure the actions were both required and justified as time passed. The home was also criticised for not issuing a formal warning to Melinda before curtailing her visits.
In June 2009, Melinda‘s solicitors wrote to the supervisory body (the local authority) raising the issue of DoLS but they should have written to the managing authority – the care home – who was responsible for seeking the authorisation. It was a further four months before the local authority advised the manager to seek an authorisation and a further five months before the appropriate request was made.
We concluded the approach taken between June 2008 and October 2009 was flawed. We found fault with both the care home and the council. The council has ultimate responsibility for the care provided to Dorothy as it was funding the placement. It was decided that it should have done more to ensure its own staff and the staff in its contracted services were better trained in such matters. We went on to criticise how the DoL assessments were conducted in this case. This criticism included the best interests assessor determining who would be the most appropriate person to act as the ‘relevant persons representative’. However, DoL guidance states that the best interests assessor should first establish whether the relevant person (ie Dorothy) has the capacity to select a representative and, if so, ask her to do so. If the relevant person selects an eligible person, the best interests assessor must recommend that person to the supervisory body for appointment.
It was concluded that certain actions would follow to ensure a robust assessment and proper periodic monitoring of the arrangements in place.
Case 2 – 10 010 739: A case where the DoL decision taken was not the ‘least restrictive’ option.
Mrs Jones complained to the LGO about the fact that her sister, Mrs Davies, was not allowed to return home after an admission to hospital. Additionally the council prevented her from moving her sister to another care home of her choosing.
Mrs Davies has a degenerative and congenital condition called Huntingdon’s Disease. She was living with and being cared for by her sister until October 2006 when she was admitted to hospital. The admission was triggered by the district nurse finding her on the floor. She was covered in bruises from other falls and had an infection. Mrs Davies told staff on the hospital ward she did not want to return to the care of her sister Mrs Jones. She told others, however, that she did want to return. A multidisciplinary discharge meeting was held. Mrs Davies’ other sister Mrs Weston was asked to attend the meeting as she has power of attorney. It was decided that the flat Mrs Jones lived in was unsuitable and that she was unable to give the level of care required. The option of Mrs Davies returning to the flat with a care package was explored but thought to not be viable. Mrs Davies was admitted to a nursing home.
In early 2007 Mrs Jones was also diagnosed as having Huntingdon’s Disease. She was suffering from common complications such as poor grip, reduced mobility, slurred speech and memory difficulties. Doctors also had concerns about impulsivity and lack of judgement. Mrs Jones never accepted that she could not care for her sister Mrs Davies. She was unhappy with the care Mrs Davies received in the nursing home at times. Mrs Jones continued to deteriorate and had problems swallowing. She was reluctant to accept help from social services. The records show that Mrs Davies and Mrs Jones missed each other’s company a lot. In 2009 the care home placed restrictions on Mrs Jones visiting following some difficulties between her and the carers. After this she was told she could not visit unaccompanied. Some meetings were held at which Mrs Jones stated that she wanted to live in a care home with her sister.
Mrs Jones moved from her small flat to sheltered accommodation and Mrs Davies was able to visit her there. At this time Mrs Davies began asking to go back and live with Mrs Jones. This resulted in an application for a Deprivation of Liberty authorisation. It was granted as Mrs Davies lacked capacity and Mrs Jones was not up to the challenge of providing the level of care required. In addition, Mrs Davies’ needs could not have been met in sheltered and supported living accommodation. Both sisters were upset about the authorisation. An IMCA and People’s Voice advocacy group was involved.
Eventually Mrs Jones made a formal complaint to the council about the detention. In its response the council said Mrs Davies needed expert care and Mrs Jones would not be able to provide that. The council also said Mrs Davies was settled now and her consultant’s view was that her needs were best met at the care home. The authorisation expired after six months and another was made and granted. In the second authorisation it is noted that both sisters voiced a preference for being together. It was however deemed in Mrs Davies’s best interests to remain where she was. The council said it would support the sisters spending as much time together as possible. Mrs Jones condition continued to deteriorate and records indicate that she may need residential care very soon.
The LGO decided that we would have expected the council to assess whether the sisters could live together in a home that could cater for the needs of both. In not exploring that option the arrangements may not be the least restrictive. The council agreed to a multi-stakeholder meeting to begin the process of dealing with the sisters’ assessments and begin planning to accommodate them together for as long as they wish.