Hospital trust ordered to pay substantial damages for MCA breaches which led to the false imprisonment of a patient


Gloria Esegbona (on behalf of the estate of Christine Esegbona dec’d) v King’s College Hospital NHS Foundation Trust [2019] EWHC 77 (QB): in a claim brought on behalf of the deceased’s estate, a Hospital Trust was ordered to pay substantial damages for false imprisonment and pain & suffering for ignoring a patient’s express wish for removal of her tracheostomy tube and discharge home to the care of her family. In breach of its MCA duties the Trust failed to properly assess Mrs Esegbona’s  capacity, hold a best interests meeting or consult with family before discharging her to a nursing home a two hour drive from her family where she died a few days later ‘frightened, distressed and alone’. In a scathing judgment the approach of the Trust was described as ‘high handed’ and ‘oppressive’.

Background

Mrs Esegbona (Mrs E), aged 67, was admitted to King’s College Hospital in October 2010 having developed pulmonary oedema due to an underlying heart condition. Prior to that, she had lived independently at home. While in hospital she was fitted with a tracheostomy due to breathing difficulties. Her ability to communicate was limited both by her tracheostomy (she required a speaking valve) and the fact that English was not her first language.

By February 2011 plans were being made to discharge her home. Mrs E wanted to go home to the care of her family and requested removal of the tracheostomy. The Trust’s psychiatrist attempted to assess her capacity but had difficulty doing so due to communication problems. On 8th March, Mrs E pulled out her tracheostomy resulting in a cardiac arrest from which she was resuscitated. On a number of occasions she required urgent suctioning or replacement of the tracheostomy tube.

Despite the express wish of Mrs E and her family that she be discharged home, the Trust’s discharge coordinator set about finding a nursing home placement. On 26th May the Trust’s psychiatrist recommended assessment of Mrs E’s capacity to decline discharge to a nursing home. He advised of the need to optimise communication by using a speaking valve and to have her family present to aid interpretation. He also advised that Mrs E be given a clear statement about her future placement options. Despite this advice, the capacity assessment was not undertaken until 6th June – two weeks before discharge. Mrs E was assessed as lacking capacity to decide about her tracheostomy and future care planning. The family were not present at the time of the assessment.  Contrary to the requirements of the MCA there was no evidence of any best interests meetings taking place, in fact it is clear from Mrs E’s medical records that the family were intentionally kept in the dark about the plan to discharge Mrs E to a care home – the inference being that the family may try and obstruct the plan.

The family were therefore unaware of the planned discharge date or the discharge destination until the afternoon before discharge. They were, understandably, very upset, particularly when they were told that the nursing home was located a two hour drive away from them, which would make it difficult for them to visit.

Mrs E sadly died at the nursing home nine days post discharge – she was found by nursing home staff unresponsive and with her tracheostomy tube removed. Tragically she died alone at the nursing home without her family.

The Legal Issues

An action was brought against the Trust by Mrs E’s estate in negligence and false imprisonment seeking damages for pain, suffering and loss of amenity as well as damages for false imprisonment, and aggravated damages.

The claimant alleged that the Trust had negligently failed to inform the nursing home that Mrs E had wanted to be discharged home rather than to a nursing home; had wanted the tracheostomy tube removed prior to discharge; had previously pulled out her tracheostomy tube and frequently required urgent suctioning and replacement of the tracheostomy inner tube.

The court found that the Trust had been negligent in the above regard and was satisfied that had this information been passed to the nursing home Mrs E would have been constantly supervised and the staff would have been better able to respond to an acute incident involving Mrs E’s tracheostomy tube and the risk of death would have been much lower. The court found that Mrs E would ‘clearly have been very frightened, distressed and alone (when she should not have been) at the time of her death.’ The court made a point of stating that it found no negligence on the part of the nursing home.

The claimant also alleged that Mrs E had been falsely imprisoned by the Trust from when she and her family first expressed the clear wish for her to go home to the date when she was eventually discharged. The Trust conceded that it had falsely imprisoned Mrs E (there was no DoLS authorisation I place during her admission) but disputed the period of that false imprisonment. The Trust also alleged that Mrs E was only entitled to nominal damages under this head of claim as even had the MCA been followed she would have been detained in hospital or discharged to a nursing home in any event – she would not have been discharged home.

The court found that Mrs E and her family had repeatedly been saying that she wanted to go home from no later than 11th February. The judge therefore concluded that Mrs E had been falsely imprisoned for 119 days from the 15th February, the date when the psychiatrist set out what was required for the capacity assessment to be conducted – recommendations which were not followed. The court held that from this point the Trust were in breach of their duties pursuant to the MCA – there should have been an ‘urgent, comprehensive and optimal assessment of her capacity followed by either taking her own discharge or a best interests meeting.’ The court found that the Trust ‘not only failed to comply with its duties but specifically overrode the statutory process’ and that ‘the notes from about May onwards show an “appalling” disregard for Mrs Esegbona’s and her family’s rights, let alone their wishes and feelings.’

When assessing damages for false imprisonment the court was not persuaded by the Trust’s submission that Mrs E’s case was analogous with the case of Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79 – a case in which nominal damages for false imprisonment of £1 were ordered for a procedural error which led to the unlawful detention of a patient who would have been detained in any event had the error not occurred. Damages for the tort of false imprisonment are intended to put the claimant in the position they would have been in had the tort not been committed. In the case of Bosridge it was found that the claimant had sustained no loss as it was ‘obvious’ that he would have been detained anyway had proper procedures been followed.

The Court found that  Mrs E’s case was not analogous with  Bosridge as it was not ‘obvious’ that, had the Trust complied with its MCA duties, Mrs E would have been detained in any event. On the contrary the court found that, had the breaches not occurred, on a balance of probabilities she would not have remained an inpatient on an acute ward as long as she did – ‘she may have gone home on a trial basis or permanently. She may have been moved to a nursing home on a temporary basis, but in any event her needs, wishes and feelings would have been fully an accurately identified.’  Crucially, her voice would have been heard and her distress and frustration reduced.

By reference to the principles summarised at para 22 of AXD v The Home Office [2016] EWHC 1617 (QB), the court was satisfied that the claimant was entitled to aggravated damages due to the ‘high handed’ and ‘oppressive’ behaviour of the Trust in deliberately excluding Mrs E’s family from decisions about her placement post discharge and failing to follow the advice of its own psychiatrist on three occasions.

Damages were ordered as follows:-

  1. Pain, suffering & loss of amenity – £3500
  2. False imprisonment (119 days @ £130 per day) – £15,470
  3. Aggravated damages – £5000

Comment

This case highlights the importance of Hospital Trusts and other health and social care providers ensuring prompt compliance with the requirements of the MCA when the issue of capacity is raised. It also underlines the importance of not excluding family members from best interests decisions. The cumulative effect of the MCA breaches in Mrs E’s case and the cavalier attitude shown by the Trust towards MCA compliance led to a finding of false imprisonment and a significant award for aggravated damages against the Trust.

KATHRYN RIDDELL

Partner in Sintons Healthcare Team

If you have any questions or require any advice on the issues discussed in this article please contact Kathryn Riddell on: (0191) 2267829 or kathryn.riddell@sintons.co.uk


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