The Mental Capacity Act 2005 provides protection and safeguards for those who are unable to make decisions for themselves. A person will be assumed to have capacity to make the decision in question, unless it is shown that they are unable to understand and retain the information relevant to the decision, to use or weigh that information as part of the decision making process and to communicate their decision. It is important to note that the issue of capacity is based upon the individuals understanding and making unwise decisions does not mean the person lacks capacity.
Capacity needs to be properly assessed and a capacity assessment is usually carried out by a suitably qualified healthcare professional or social worker. If it is decided that the person is unable to make the decision in question, a decision can be made on their behalf. This decision must be made in their ‘best interests’.
In recent weeks, social workers have been reminded by the Local Government Ombudsman that capacity assessments made under the Mental Capacity Act 2005 must be recorded properly. The LGO recently considered a case where they held that a man was failed by his social worker and had been forced to live in a care home against his wishes. The decision to move the man had been made without sufficient evidence of the man’s lack of capacity and without social workers going through the proper process.
The complaint was brought by the family of the elderly man, who had dementia. He was moved to a nursing home 14 miles away from his marital home, after his needs had increased considerably. Both the man and his family wanted him to live closer to his marital home, as the home that had been chosen for him required his wife to take two buses to get there and back, to visit him. The Council, on making their decision to place the man in the home, had decided that he had no capacity to make the decision to move. The social workers did complete a mental capacity and best interests assessment, and a decision was recorded. However, on later consideration the record was considered incomplete, as it failed to include formal requirements and lacked detail to explain the reasoning behind the decision taken by the social workers and the council.
The LGO noted that social workers have to make difficult choices on behalf of other people, when family and liberty are at stake, but made it clear that it is incredibly important that they get those decisions right, undertake and conduct proper assessments, and back those decisions up with clear evidence for their reasoning.
The LGO also highlighted the fact that the Council had failed to consider properly whether the man’s placement in the nursing home amounted to a deprivation of his liberty. The Council should have referred the matter to their Deprivation of Liberty Safeguarding team because the man and his family had made repeated requests for him to return home. The family should also have been given information about the possibility of appealing the decision with the Court of Protection.
The Council received a fine, to be paid to the family, in the sum of £750 in recognition of the distress, and the time and trouble that had gone in to making the complaint. It is important that Local Authorities learn from this case to ensure that proper safeguards are implemented and such errors are not made again.
If you are of the view that a relative of yours requires an assessment as to their mental capacity, or you are concerned that an assessment has not been conducted properly, then we are here to help you. We can also assist if you have concerns that someone is being deprived of their liberty.