Ombudsman: capacity assessments must be recorded

The Local Government Ombudsman has warned social workers that they must ensure they properly record assessments of a person’s ‘capacity’.

Capacity refers to a person’s ability to make their own decisions regarding their welfare or best interests, without being compromised by learning difficulties or illness. Assessments of capacity are governed by the Mental Capacity Act 2005 (MCA).

The Ombudsman investigated the case of a man taken into a care home against their wishes, as well as his own, by Cambridgeshire County Council after his family complained. The care home was 14 miles away from his family home, compelling his wife to take two buses to go and visit him.

Social workers had not carried out a full assessment of the man’s capacity or best interests, the Ombudsman’s investigation found. Such assessments are required by the MCA when a decision is made to move a person lacking capacity. The Council also failed to consider the Deprivation of Liberty guidelines, which should be used to assess the human rights of people whose freedom of movement is restricted in their apparent best interests.

Instead, the man’s family were threatened with the police if they tried to remove him from the home and also not informed of their right to appeal to the Court of Protection. The latter is the branch of the High Court which makes rulings on behalf of people who lack capacity.

Ombudsman Dr Jane Martin said:

“Cambridgeshire County Council still does not acknowledge its failure to comply with the Act and maintains that the informal and unrecorded assessments and ‘best interest’ decisions that were carried out prior to the move were sufficient to discharge its duties. I cannot agree.”

She continued:

“As a result this family were left believing that their father was being ‘held prisoner’ against his and their wishes.”

The Ombudsman has told the council to apologise to the man’s family, acknowledging the impact of the decision to remove him. They are also required to pay them £750 in compensation. In addition, they need to provide refresher training to social workers on the relevant law.