Ombudsman slams failures on decision-making for those lacking mental capacity

Some councils and care providers do not properly understand the processes for making decisions on behalf of people who lack mental capacity, the Local Government and Social Care Ombudsman (LGO) has said in a report.

The Ombudsman said vulnerable people were being forced into situations against their will because care providers were not going through the proper processes.

According to the LGO, problems include not carrying out – or delaying – assessments to determine whether someone has the capacity to make decisions for themselves, poor decision making when deciding on someone’s best interests, and not involving friends and families in the decision process.

The report also highlighted problems with the Deprivation of Liberty Safeguards System (DoLS). This included cases where people had been left in care homes, having not had the proper assessments carried out – and potentially being deprived of their freedom – for many years, the LGO said.

It added that in 2016-17 it had investigated more than 1,200 adult social care complaints in detail. Up to one in five of those complaints involved concerns about mental capacity or DoLS.

The Ombudsman upheld 69% of those investigations, which was higher than the average figure of 53%.

The report offers advice and guidance to social care professionals on how to get things right when working with people who may lack mental capacity. It also provides questions councillors can use for scrutinising their own authorities to ensure people in their area are treated properly.

Michael King, Local Government and Social Care Ombudsman said: “The people who these measures are designed to protect are all too often being let down by poor practice. And, while I appreciate the complex emotional and practical decisions social workers need to make, the people they look after are still entitled to be treated fairly, and have their assessments undertaken correctly and in a timely manner.

“People should have the right to make choices for themselves unless they have been assessed as not having capacity. We have issued this report to highlight where things are going wrong, so we can help authorities get things right and improve services for people.”

Commenting on the LGO’s report, Margaret Willcox, President of the Association of Directors of Adult Social Services (ADASS), said: “This welcome report highlights the importance of good assessment and planning in relation to people who may lack capacity to make key decisions themselves.

“ADASS and our members are always disappointed to hear of poor practice and one instance is one too many. We are not complacent but are aware that there is also good practice, as evidenced in the report.

Willcox added: “We have long supported the Mental Capacity Act and have developed a range of advice to support.

“The report recognises that DoLS applications in England have soared to unprecedented levels in the past two years, leading to huge delays in processing.

“We hope the Law Commission’s plans to introduce new, more efficient DoLS legislation helps to address this and alleviate any further concerns and anxiety for families and individuals involved.”

READ OUR ADULT SOCIAL CARE 2017 SUPPLEMENT – in addition to the findings from our survey and a report on a roundtable discussion of senior lawyers, the publication looks at the impact of the Care Act 2014, the Law Commission’s proposed replacement of the Deprivation of Liberty Safeguards, the challenges of health and social care integration, how to tackle bed blocking and much more.