Ex-miner “deprived of his liberty” when prevented from dying at home

A 77-year-old former miner was deprived of his liberty - without proper account of the law being taken - when he was prevented from going home to die beside his brother, a joint report from two Ombudsmen has found.

The Parliamentary and Health Service Ombudsman (PHSO) and the Local Government Ombudsman (LGO) said there had been “a string of errors” by the five organisations tasked with looking after the man (RK), who had lived with his brother (TK) his whole life.

RK was unable to walk and suffered from diabetes and Alzheimer’s. He had told carers he did not want to die in hospital but instead wanted to return to his home in Sheffield. He died in December 2009.

The Ombudsmen examined the role played by:

  • The Moss Valley Medical Practice (the GP’s practice in Derbyshire where the man was registered);
  • Chesterfield Royal Hospital NHS Foundation Trust, which managed Calow Hospital. Staff there were involved in decisions about the location of the ex-miner’s care after he was discharged from hospital;
  • The social services department at Derbyshire County Council, which contributed to key decisions about the location of the man’s care in February and May 2009;
  • Sheffield City Council’s social services department, which funded and arranged the man’s accommodation and social care until 15 October 2009; and
  • NHS Derbyshire County (the primary care trust), which funded and arranged all of the man’s health and personal care and accommodation from 15 October 2009. The PCT was abolished on 31 March 2013.

In their report the PHSO and the LGO said: “We have found that all five organisations involved in RK’s care shared responsibility for taking proper account of the law, in particular of the Deprivation of Liberty Safeguards that were designed to prevent people without capacity from being deprived of their liberty unfairly. They failed to do so. That was service failure.

“As a result, RK remained deprived of his liberty in a manner that did not take proper account of the law. This situation caused his brother a great deal of distress. That injustice arose from the service failure we found. We uphold TK’s complaint about all five organisations.”

According to the report, carers feared that the 77-year-old lacked the capacity to decide for himself where he wanted to die. But they failed to carry out a mental capacity assessment, as required under the Mental Capacity Act 2005.

The report recommended that all five organisations apologise to the brother and each pay him £200.

The PHSO and the LGO also expressed concern that the organisations did not, more than three years later, identify what went wrong with the case.

“That suggests that there may be an ongoing lack of understanding of the Mental Capacity Act 2005 and the safeguards,” the report said. “We recommend that the Practice, the Trust and both councils review their practices to establish whether the safeguards are embedded and routinely applied by staff in these circumstances. They should share the results of this review with us and with TK.”

Should any of these reviews suggest that the safeguards are not embedded and routinely applied then the organisation in question should draw up an action plan.

The report concluded: “This is a sad tale about a man who was dying, and who wanted to move back into his own home, who was ultimately denied that opportunity. That denial was the result of a failure by several public organisations to properly consider RK’s circumstances in the light of new law and evolving practice.”

The Parliamentary and Health Service Ombudsman, Julie Mellor, said the case could have been prevented if the proper procedures had been followed and a more joined up approach taken to care.

“A series of delays meant that a dying man’s wishes were ignored and caused unnecessary distress to his brother,” she said.

“The trust should have reacted urgently to this distressed man’s letter to the care home pleading for them to let his sick brother go home to die, within hours or days at the most. But instead they postponed a meeting for a month, in which time his brother died, away from home.”

Local Government Ombudsman Dr Jane Martin said she welcomed the steps that the two councils involved had subsequently taken to improve their services.

She added that she hoped that the case would serve as a reminder to other authorities “of the paramount importance of listening to patients and involving them and their families in the care planning process”.

A Sheffield City Council spokeswoman told the BBC: "We are sorry for our part in Mr RK being denied the opportunity to return home and for the effect it had on him.

"The service has moved on significantly since 2009 in the practical application of the safeguards and a detailed review of our practices has been given the highest priority."