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DoLS Enforcement - Supervisory Bodies and BIAs Have a Long Way to Go

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The recently published Parliamentary and Health Service Ombudsman decision following the complaint of Mrs. X against the City of York Council serves as a useful reminder for BIAs and Supervisory Bodies on the importance of properly enforcing DoLS when carrying out their functions.

The facts

Mrs. X’s mother, Mrs. Y had a fall at home in or around April 2020. This necessitated a stay in hospital as the fall resulted in a bleed on the brain.

Both Mrs. X and her siblings jointly held LPAs for Mrs. Y, both for property and financial affairs and, crucially, health and welfare decisions.

Following successful treatment in hospital, Mrs. Y was, according to the Ombudsman, “assessed as lacking the capacity to make decisions about where her care needs should be met”. York City Council decided that it would be in Mrs. Y’s best interests if she was moved to a care home. So, on 7th May 2020 she was moved to Care Home A under the Covid -19 Hospital Discharge Service Requirements, pending a more long-term solution to her needs being found.

Once there, Care Home A carried out a risk assessment and, on 8th May 2020, applied for a Standard DoLS authorisation, as well as granting themselves an Urgent Authorisation in accordance with the provisions of Paragraphs 24 and 74-76, Schedule A1, MCA (2005).

On 3rd June some members of Mrs. Y’s family (it is unclear if Mrs. X is amongst them) tell the council that they think Mrs. Y should move to a sheltered accommodation. Care Home A oppose this as they feel she needs 24-hour care.

On 12th June, representatives from Mrs. Y’s family tell the council that they want her to move to Care Home B (which was the preferred care home at the outset but had no beds at the time). It seems a vacancy at Care Home B had recently come up.

On 25th June, Mrs. Y is moved to Care Home B.

On 15th July, Mrs. X, unhappy with both the move and not having been consulted by the Council, makes a complaint. It seems that different family members were exploring different options for Mrs. Y and were disagreeing as to the best way forward. Other donees of the LPA had been consulted and seem to have been treated, incorrectly, as representing the views of the entire family. Mrs. X, however, had not been consulted and felt, correctly, that she should have been, and her views considered. She should also have been informed of her rights and what actions she could take to stop the DoLS process.

On 24th August 2020, the Council told Mrs. X they had granted a 12-month Standard Authorisation until 19th August 2021, without apparently consulting Mrs. X or giving any consideration to the provisions of Paragraph 20, Schedule A1, MCA (2005). This makes it very clear that if the proposed deprivation of liberty is ‘in conflict with a valid decision of a donee or deputy’ then this will count as a refusal and the DoLS process cannot continue.

The Outcome

The Council accept that there had been three core failings on the BIA’s part:

  • They should have consulted Mrs. X.
  • They didn’t explain why it was found that Mrs. Y met the DoLS requirements.
  • They didn’t tell Mrs. X her rights.

The Ombudsman found that Care Home A was not at fault for their part in the process and that the Council had remedied the injustice they had caused to Mrs. X, although it is not explained in the finding how they did this.

Failings and Ramifications

As mentioned above, paragraph 20, Schedule A1, Mental Capacity Act (2005) states, “there is a refusal [of DoLS] if it would conflict with a valid decision of a donee or deputy for the relevant person to be accommodated in the relevant hospital or care home…”

Therefore, it follows that if Mrs. X, as a donee, objected to the accommodation, that would be a refusal, even if the other donees agreed with the proposals. Whilst it is unclear from the findings exactly what Mrs. X’s views were, she was undoubtedly unhappy about not being consulted. It’s also unclear as to how the injustice to Mrs. X was remedied - the Council could have apologised for the oversight, or they could have ceased the Standard Authorisation if Mrs. X was refusing.

What is clear though is that Mrs. X was initially shut out of the DoLS process, in contravention of both her and her mother’s rights to a private and family life under Article 8 ECHR. The case has distinct echoes of L B Hillingdon v Neary (2011) EWHC 1377 and even the high-handed actions of the specialist registrar in Elaine Winspear v City Hospital Sunderland NHS Foundation Trust (2015) EWHC 3250 (QB) in placing a DNACPR on Mrs. Winspear’s son’s file in the middle of the might, without consultation with the family.

This suggests that many BIAs and, through them, Supervisory Bodies and, even, Managing Authorities have a long way to go before they can properly claim to be fulfilling their duties and meeting the expectations placed on them by the DoLS, which are anything but a tick-box exercise.

Summary

In summary, the two, critical lessons to be learned from this case are that:

  • All interested parties (identified in Paragraph 185, Schedule A1, MCA (2005)) must be consulted to ensure that the wishes, feelings, values and beliefs of those whom the DoLS are intended to protect are ascertained.
  • All donees of LPAs and Court Appointed Deputies for Health and Welfare must be consulted as part of the “no refusals” assessment and if one of them does refuse, that should bring an end to the DoLS application.

If you or members of your team require training or a refresh of the DoLS, Bond Solon offer a number of different training options depending on your role:

For a full list of our course please visit the course page or contact a member of the team at info@bondsolon.com or 020 7549 2549. 

Author: Max Duddles

This article was first published on 10 October 2022