Damages awarded for unlawful detention following breach of Mental Capacity Act 2005
15th February, 2019
Esegbona v King’s College Hospital NHS Foundation Trust  EWHC 77 (QB)
This claim involves an award of substantial damages arising out of a failure to follow Deprivation of Liberty requirements. The Trust’s approach to the management of the care of the deceased was described as “oppressive” and “high handed”.
This case demonstrates the importance of adhering to the requirements of the Mental Capacity Act 2005, listening to the patient, taking into account their wishes and avoiding placing them into circumstances which are likely to cause distress.
The Claimant, Gloria Esegbona, brought the claim as administrator of the estate of her mother, Christiana Esegbona.
Christiana Esegbona was born on 1st January, 1943. She had a very complex physical and mental health history, and English was not her first language. Despite her health needs, she had lived independently and was self-caring, prior to her admission to the Defendant Trust.
On 19 October, 2010, Mrs Esegbona attended the Accident and Emergency Department of King’s College Hospital due to complaints of breathlessness. She was diagnosed as suffering from pulmonary oedema and unfortunately went on to suffer a rapid and catastrophic deterioration in her condition, culminating in her admission to ITU in a coma. A tracheostomy was required and Mrs Esegbona developed cognitive impairment and paralysis of the right arm.
Mrs Esegbona expressed a wish to go home and have the tracheostomy removed. The issue of capacity was raised and she was reviewed by the Psychiatry team on 15 February 2011. Unfortunately, the Trust’s staff repeatedly ignored her express wish to have the tracheostomy removed and go home to her family.
Mrs Esegbona was transferred to a number of different wards and facilities, and capacity assessments were noted to have deemed her to lack capacity to make certain healthcare related decisions. It is of note that Mrs Esegbona struggled to communicate at this point, due to the tracheostomy, and the paralysis of the right arm. Her arm difficulties meant that access to the speaking valve was limited. Further, English was not her first language and this added to the perceived difficulties in undertaking a capacity assessment. As such, it does not appear that a meaningful capacity assessment was undertaken, nor was any assessment made of her best interests.
Mrs Esegbona was eventually discharged to a care home on 14 June 2011. The discharge was opposed by her family and the home was many miles from her home. Sadly, on 23 June 2011 Mrs Esegbona died alone when she was found by staff, unresponsive and with her tracheostomy removed. She was aged 68 at the time of her death.
It was alleged that there was a negligent failure to provide sufficient information to the care home about the deceased’s tracheostomy needs. It was further alleged that the deceased was falsely imprisoned and that the Defendant Trust failed to comply with its obligations under the Mental Capacity Act 2005 when a Deprivation of Liberty authorisation should have been in place. The Claimant, Mrs Esegbona’s daughter, claimed damages for pain, suffering and loss of amenity as well as damages for false imprisonment.
The Court determined that the failure to pass on information to the care home about Mrs Esegbona’s tracheostomy history and care needs amounted to breach of duty. Further, this breach was causative as had the home been aware of these needs, she would not have been left alone, would not have removed the tracheostomy and would not have suffered a cardiac arrest.
There was no dispute between the parties that the deceased had been unlawfully detained. What was in dispute was the length of the unlawful element of the detention. HHJ Coe QC held that Mrs Esegbona was unlawfully imprisoned from the date of the psychiatric review on 15th February until her discharge to the care home on 14th June, a total of 119 days. There had been preliminary plans on 9th February to discharge Mrs Esegbona home and it was clear that she and her family wanted her to go home. A member of the clinical team set out what was required for a capacity assessment to be made, but this assessment was not done. Despite this, on the same day the defendant decided Mrs Esegbona could not go home.
The Court rejected the Trust’s reference to the case of Bostridge v Oxleas NHS Foundation Trust in respect of quantification of damages. The Court set out that in Bostridge, the patient would have been held in the same place, even if the detention had been lawful. On the contrary, had the defendant in Mrs Esegbona’s case complied with its obligations, she may not have been detained and may have been discharged home as requested.
The stark contrast in circumstances between the two cases is apparent when looking at the levels of damages awarded, as in Bostridge the Court awarded nominal damages of £1, but in the case of Mrs Esegbona, the unlawful detention element of her claim attracted damages of £15,470.
This case stresses the importance of compliance with the statutory requirements for a deprivation of liberty and specifically, the importance of undertaking proper and meaningful capacity and best interest assessments which include an assessment of the patient’s wishes. It also emphasises that if compliance with the requirements might have resulted in a different outcome for the patient, then the damages awarded for false imprisonment will likely be substantially more than the “nominal” award in Bostridge.
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