View source for Transcript of LGO decision: Dorothy 10 013 715 (2011) MHLO 190

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.

Dorothy was admitted to a care home in February 2005. Her daughter Melinda kept in touch with her regularly. In May 2008, Melinda raised concerns about Dorothy’s care and a safeguarding investigation resulted. The allegations Melinda made centred around poor manual handling, poor care and bullying by staff. The safeguarding investigation took into account all of the issues around Dorothy’s care which included concerns the care home had about Melinda’s disruptive behaviour when visiting – she would often shout and get angry.

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.