Trust fined for false imprisonment of patient

The High Court’s decision in R (Esegbona) v King's College Hospital NHS Foundation Trust [2019] EWHC 77

Executive summary

For the first time, the High Court has found that an NHS trust's failure to follow the Deprivation of Liberty Safeguards regime (“DoLS”) under the Mental Capacity Act 2005 (“MCA”) caused a patient to be falsely imprisoned as well as being negligent in respect of her treatment and discharge. Due to the particular facts, aggravated damages were awarded in addition to those for pain and suffering, as well as a separate head for false imprisonment, totalling nearly £25,000.

Background

The claimant, the daughter of the deceased patient, brought a claim against the defendant NHS trust. The deceased had a complex medical history of various conditions but, prior to her admission to the trust's intensive care unit in October 2010 suffering from shortness of breath, had been living alone at home and caring for herself.

As part of her treatment, a tracheostomy tube was inserted. The deceased remained in hospital for eight months but in February 2011, wanted to have the tracheostomy removed and go home. The trust intended to discharge her and train her family (two of whom were medically-qualified) in basic and emergency tracheostomy care. Her capacity was assessed and a "continuing healthcare funding" assessment undertaken. During March 2011, while still in hospital, there were two incidents in which the deceased removed and/or obstructed her tracheostomy tube, both resulting in cardiac arrest calls and brief admissions to intensive care.

The trust told the family that it was not possible for the deceased to go home and that she required nursing care because of the risk of death. Their plan to move her to a nursing home was abandoned because the home considered her too medically unpredictable. In May 2011, a psychiatric assessment found that she did not have capacity to make decisions about her future residence and tracheostomy and in June 2011, the trust discharged her to a nursing home two hours away from her own home, which it had identified without consultation with the family and where she died a week later, having been found with her tracheostomy tube removed. The cause of death was a heart attack, owing either to an underlying heart condition or to self-removal of the tracheostomy tube. The court had to determine which of these were more likely to have occurred.

The decision

The court found that removal of her tracheostomy tube, both at hospital and in the nursing home, was "very unlikely" to have been accidental. Both times, the deceased had removed it either because it was blocked and she could not breathe properly (there was evidence that without regular suctioning and cleaning, the tracheostomy could become occluded and lead to complete airways obstruction) or because she saw it as the reason why she was not able to return home.

The court also found the trust negligent for failing to inform the nursing home that the deceased had previously been found with her tracheostomy out or obstructed, and failing to provide sufficient information about suctioning and maintenance. Generic references to the need for suctioning did not address those risks. The court therefore held that, on the balance of probabilities, it was removal of the tube in the nursing home that had triggered the cardiac arrest which caused her death. She should have been constantly supervised so that the tube did not become blocked and she was not able to pull it out.

On the issue of false imprisonment, the court found that the trust had not complied with its duties under the MCA and had in fact specifically overridden the statutory process, the deceased having been falsely imprisoned as a result. From 15 February 2011, when she said that she wanted to go home, until her discharge on 14 June 2011, there had been no proper and ongoing capacity assessment, best interest meetings or referral to the Court of Protection. The trust's notes also showed what the court referred to as an appalling disregard for the rights of the deceased and her family, and their wishes and feelings.

Damages

In view of the deceased’s health issues and the underlying heart condition which could have caused her sudden death at any point, the general damages claim for pain, suffering and loss of amenity was limited to damages for the circumstances and location of the deceased's death being more traumatic and frightening that it would otherwise have been. She would have died very quickly, so the appropriate sum here was £3,500.

In respect of her unlawful detention, the trust had been in breach of its duties under the MCA for 119 days. The court rejected the trust’s arguments based on the decision in Bostridge v Oxleas Foundation Trust [2015] EWCA Civ 79 on the basis that, in that case, the patient would have been held in the same place, even if the detention had been lawful. If the trust had complied with its obligations in this case, however, the deceased may not have been detained at all and instead allowed home. This was not, therefore, a case where nominal damages were appropriate, as in Bostridge, and the correct award was £130 per day, totalling £15,470. The court also found it appropriate to award aggravated damages of £5,000, as the trust had deliberately excluded the deceased's family from the decision-making process and failed to follow the DoLS, which fell within the definition of "high-handed" and "oppressive" in AXD v Home Office [2016] EWHC 1617.

Comment

The circumstances of this case speak for themselves and it was evidently deeply distressing not just for the deceased patient but also for her family. Aside from the obvious salutary warnings around the need to comply with statutory and other obligations around a deprivation of liberty, including substantive capacity and best interests assessments, the risks of failing to heed the wishes of the patient and their family are also abundantly clear. Moreover, the damages awarded in this case are clear evidence that the court is not afraid to impose financial penalties where non-compliance may have resulted in a different outcome for the patient: the limits of the Bostridge decision have been unequivocally demonstrated.

***Stop Press***

The Mental Capacity (Amendment) Act 2019 received royal assent on 16 May 2019. The Act introduces a new regime, replacing DoLS, for authorising care arrangements that amount to a deprivation of an incapacitated person’s liberty. A date has yet to be appointed for when the new Liberty Protection Safeguards come into force.