5th February 2019

High Court awards damages for wrongful detention of an incapable patient after several breaches of the Mental Capacity Act by an NHS Trust

Christiana Esegbona was a 68-year-old lady who was independent and self-caring when she was admitted to Kings College Hospital with shortness of breath on 19 October 2010. She was fit for discharge within a week, but before she could leave hospital suffered a hypoglycaemic episode and her condition deteriorated. She ended up staying in hospital for nine months and by the time she was eventually discharged she was confused, had a tracheostomy and PEG feeding tube, and was incontinent of urine.

During her stay in hospital she had consistently said she wanted to go home, and her family wanted her to go home. Christiana and her family were told by hospital staff that this was impossible because there was too much of a risk that her tracheostomy tube would become blocked, or come out, and she could die.

She was eventually discharged from hospital to a nursing home on 14 June 2011 and 9 days later, she died after pulling her tracheostomy tube out, the exact risk that the hospital said it was trying to avoid.

There was a failure on the part of the hospital to follow the deprivation of liberty safeguards (DoLS) requirements as outlined in the Mental Capacity Act 2005 (MCA). The hospital had duties under the MCA to take reasonable steps to establish whether Christiana lacked capacity before doing any act in connection with her care or treatment. If the hospital reasonably believed Christiana lacked capacity, it had a duty to complete a best interests assessment, and further should have taken steps to obtain a court order or the relevant authorisation under the MCA before depriving her of her liberty.

The hospital also intentionally kept Christiana’s family in the dark about the discharge until the last minute, so that the family could not object.

Christiana’s family pursued a claim for compensation against the hospital for false imprisonment and for negligent failures to provide adequate information to the nursing home. The High Court awarded aggravated damages in addition to general damages because of the deliberate exclusion of Christiana’s family from the discharge planning process.

The Deprivation of Liberty Safeguards (DoLS) are part of the Mental Capacity Act 2005. The safeguards aim to make sure that people in care homes and hospitals are looked after in a way that does not inappropriately restrict their freedom.

If you, or a family member have concerns about a period of detention in a hospital or care home and believe you may have been affected by a failure to follow the deprivation of liberty safeguards (DoLS) please do not hesitate to contact our Solicitors Richard Hardy or Katy Stephenson to discuss further.

Blog by Katy Stephenson, Solicitor