What price freedom? Counting the cost when DoLS goes wrong.
5 February 2019
Esegbona v Kings College Hospital  EWHC 77 (QB)
Twenty years on from Bournewood, the case that prompted the introduction of DoLS, and as the Mental Capacity Amendment Bill tolls the death knell for DoLS and introduces as their replacement Liberty Protection Safeguards, the High Court (HHJ Coe QC sitting as a High Court Judge) has given a sharp reminder of the human and financial cost of what happens when a hospital fails properly to discharge its obligations under the Mental Capacity Act and as a result, falsely imprisons (in a hospital) a patient.
Briefly (the judgment runs to over 200 paragraphs) Ms Esegbona was a 68-year-old who was initially admitted to hospital with shortness of breath. She was fit for discharge within a week, but before she could leave hospital suffered a hypoglycaemic episode and went rapidly downhill. She ended up staying in hospital for nine months, by which time she was confused, had a tracheostomy and PEG feeding tube, and was incontinent of urine. From around mid-February 2015 and while she was still very unwell, she said she wanted to go home. The hospital, despite the urging of its junior psychiatrist, failed to implement the DoLS procedures, and failed to authorise (what was latterly admitted by the Trust to be) her continued detention in hospital. As a result there was no proper best interests assessment of whether she should be discharged home, no proper capacity assessment, of the deceased, and no proper involvement of the deceased in the discharge decision-making. Although it was apparent from the notes that Ms Esegbona continued to express a desire to leave the hospital, and was supported in this wish by her family (at least two of whom were medically qualified) both she and they were told it was ‘impossible’. Ms Esegbona was eventually discharged to a nursing home a good distance from her family’s home. 9 days after discharge she died after her tracheostomy tube came out.
The claim was brought in negligence and for false imprisonment. The Trust admitted that Ms Esegbona had been falsely imprisoned (at least for some of the period) but denied that she was entitled to anything more than nominal damages because, they said, she would have remained in hospital in any event and had lost nothing by what they sought to describe as a procedural breach. The Trust also denied negligence, particularly that they failed to provide information to the nursing home about the deceased pulling out her tube, and that in any event that was not the cause of her death. A striking feature of the case was that no positive factual evidence was called by the Trust from any of its clinicians or staff. Rather the Trust sought to make its own factual case by cross examination of the deceased’s daughter (the Claimant) and her experts.
Finding for the Claimant on every factual and expert issue, the Judge rejected all the Defendants arguments and held that the Trust was liable in damages in negligence, and false imprisonment and made an award of aggravated damages.
The real interest of the case perhaps lies in the fact that the Court was willing to award aggravated damages – £5000 – for the high handed conduct of the Defendant who deliberately kept the family in the dark about their discharge planning, and also for the award of damages for false imprisonment at the rate of £130 per day for the time the Claimant remained in hospital after evincing a wish to leave which was never properly acted on or considered within the DoLS framework. For the period she was detained that sum added up to a global £15,000. That is a significant sum, particularly in circumstances where the Judge said that she did not find that Ms Esegbona necessarily would have been discharged home, i.e. she may have had to remain in hospital in any event.
There are some who will be surprised at this judgment, both because one does not ordinarily think of a seriously ill patient being treated in hospital as ‘falsely imprisoned’ even if she does want to go home, and also because negligence in and around administrative procedures such as discharge planning is notoriously difficult to prove and rarely causative of any identifiable loss. But the case shows how, when skilfully argued on its particular facts, a claim such as this can result in substantial damages being awarded for failure to follow statutory procedures under the Mental Capacity Act designed at achieving the proper involvement of patients in decision-making.
Jeremy Hyam QC is a barrister at One Crown Office Row.
Alasdair Henderson of One Crown Office Row represented the Claimant in this case. He was not involved in writing this post.