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Services ‘too often’ failing to apply Mental Capacity Act properly

Local Government Ombudsman issues warning after finding one in five social care complaints concerned the MCA or DoLS

Vulnerable adults are too often being let down by social workers and care providers failing to follow the Mental Capacity Act properly, a report has warned.

The Local Government and Social Care Ombudsman’s review found one in five social care complaints made to the service last year concerned mental capacity or deprivation of liberty cases. More than two-thirds of these complaints were upheld, compared to 53% of all complaints across social care.

The watchdog published details of seven cases it said highlighted common issues in the way the MCA and DoLS are applied. These included delays carrying out assessments, poor best interests decision-making, and a failure of services to involve family in the process.

In one case flagged by the ombudsman, a stroke victim was placed in a care home against his will after social workers made assumptions about his capacity without properly assessing it. He was later found to have the capacity to decide where to live.

‘Delays in authorisations’

The report also highlighted significant problems with the DoLS, which included delays in councils and care providers applying for a DoLS authorisation.

In one case, a care home took six months to apply for a DoLS order for one of its residents who had dementia. The council involved also failed to inform the man’s wife of the order.

The report acknowledged that councils had struggled to keep up with the rise in DoLS applications following the landmark Cheshire West ruling, which effectively lowered the threshold for cases requiring an authorisation, leading to a ten-fold increase.

However, it said that the ombudsman’s investigations showed some councils and care providers did not properly understand the decision-making process.

Michael King, the local government and social care ombudsman, said the people these measures were designed to protect were “all too often” let down by poor practice.

“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,” he said.

‘Singled out’

Rob Mitchell and Mark Harvey, co-chairs of the adults’ principal social worker network, said: “We have not seen the report in detail so we are unsure whether the 69% of upheld complaints are wholly in response to the actions of social workers, or whether they are concerns relating to the actions of other agencies, including the NHS and care providers.

“However, it is wrong to single out social workers as they are not the only profession who assess capacity. While we know nationally social workers are leading the response in ensuring that mental capacity is embedded, others are taking an increasing role. This is especially true in places such as hospitals, where the lack of knowledge and application of the MCA and Code of Practice is particularly concerning.”

They added: “For those who need or look to social work for a professional, person-centred and high quality response in relation to Mental Capacity Act practice, we are confident that in the majority of cases that is exactly what they will receive. Despite the worrying evidence in this report it is key to remember these are small numbers compared to those undertaken by social workers everyday across the county.

“It is also important to understand the level of pressure and expectations being placed on adult social work today. Expectations to deal with system failures, poor local commissioning arrangements and lack of available care, on top of increasing referrals, are often diverting social workers from these core practice areas. Social workers themselves though need to ensure they prioritise their response to citizens and ensure good practice in these areas remain a key focus and area of pride in our roles.”

‘Unprecedented levels’

The report also included two examples of good practice, which showed where councils and care providers had followed the correct procedures.

Margaret Willcox, president of the Association of Directors of Adult Social Services, said: “We are always disappointed to hear of poor practice and one instance is one too many. We are not complacent but are aware there is also good practice, as evidenced in the report.

“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.”

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