Esegbona v King's College NHS Trust

Summary[1]

This case concerned a disastrous failure to follow the principles of the MCA in relation to the discharge from hospital of a seriously ill 68 year old woman.  Mrs Esegbona was admitted to hospital from A&E and required repeated admissions to intensive care due to a range of health problems.  By the time she was able to be discharged, she had a tracheostomy and required a high level of nursing care such that she was deemed eligible for NHS Continuing Healthcare.  She was not compliant with the tracheostomy and there were repeated incidents where she dislodged or removed it. A nursing home placement was found, but fell through due to the unpredictability of her presentation.  Eventually a second nursing home was identified, and Mrs Esegbona was discharged there, around 4 months after being medically fit for discharge, and 8 months after being admitted.  She died around 10 days later, having removed the tracheostomy tube and suffered a cardiac arrest.

The claim[2] was brought by Mrs Esegbona's daughter alleging negligence by failing to pass on information to the nursing home about the risk of the tracheostomy tube falling out or being removed on purpose and difficulties with obstruction of the tube, and false imprisonment for the period after Mrs Esegbona was fit for discharge and wanted to return home but remained in hospital.

In light of expert evidence that had been obtained by both sides, there was no disagreement that a failure to pass on information about the tracheostomy tube to the nursing home would have been negligent.  It was also conceded by the Trust that there had been a period of false imprisonment, when a DOLS authorisation should have been in place.  The issues that were disputed, were these:

Was it a breach of duty not to tell the nursing home that Mrs Esegbona had wanted to go home and did not want to be in the nursing home?  The court decided that it was.

• Did the failure to pass on information about the tracheostomy and Mrs Esegbona's wishes materially increase the risk of her dying in the manner and environment that she did (albeit it could not be said on the balance of probabilities that she would have lived but for these failures)?  The court held that causation was established, relying on findings that she had removed the tracheostomy tube deliberately when in hospital, that this had not been passed on but if it had, she would have been provided with 1:1 care at all times, and that her eventual death was due to a deliberate removal of the tube (contrary to the findings at the inquest into her death).
• The appropriate level of damages for the period of false imprisonment. The court awarded £130 a day (i.e. a total of £15,470), concluding that if the MCA processes had been followed correctly, Mrs Esegbona would either have been discharged home with a package of care or to a nursing home.
• Whether aggravated damages should be awarded in light of the alleged deliberate exclusion of the family in the decision-making process; the fact that the detention occupied the last months of Mrs Esegbona's life; and that the defendant failed to act upon the clear advice of its own psychiatrist about the need for a capacity assessment and a best interests meeting.   The court awarded £5,000 in aggravated damages.

There are a number of surprising findings in this case, including that it is the treating NHS Trust which is responsible for deciding where a patient should be discharged to, rather than the CCG with responsibility for community services pursuant to the NHS Continuing Healthcare Framework, and that it would only have taken a month to fully investigate and decide whether Mrs Esegbona could safely return home with a package of care instead of being admitted to a nursing home.

The case is perhaps best explained by the failure to follow the MCA promptly, even when the need for capacity and best interests assessments were flagged up, and a breakdown in communication with the family which led to entries in the medical records noting that information should be withheld from them and the discharge to the nursing home effected without them being able to have a say in what happened.  The cumulative effects of the failings were clearly such as to lead the Trust to concede that Mrs Esegbona was falsely imprisoned.  They were clearly right to do so in circumstances where the judge said:

The defendant made its decision and was determined to implement it without the family's involvement…I find that that behaviour falls squarely within the definition of "high-handed" and "oppressive". Taken together with the additional features in this case of the defendant's failure to follow the advice of its own psychiatrist on three occasions and their failure to call any evidence in this case to explain the tenor of the notes, I find that it is appropriate to make an award of aggravated damages.

The events complained of took place in 2010 and 2011 – no doubt some 9 years later, we would like to hope the integration of MCA and the DOLS processes with discharge planning is more effectively embedded into hospital Trusts.

We note, finally, that whilst the case is undoubtedly important as a decision where the court has actually assessed damages for itself (rather than endorsing an agreement), the way in which the case unfolded leaves some questions open.  In particular, given that the claim was expressly framed as a common law claim for false imprisonment, rather than an HRA claim for unlawful deprivation of liberty, it will not stand as a direct precedent for the award of damages in such a HRA claim, and we are still reliant in such claims on reading the runes from settlements such as that in the 'Fluffy' case.

[1] Note, Katie Scott having been instructed in this case, she has not been involved in preparing this note.

^[2] Which was not a Human Rights Act claim, possibly because the limitation period had expired.