Esegbona -v- King's College Hospital NHS Foundation Trust [2019] EWHC 77 (QB)

Facts of the case

Mrs Christiana Esegbona (CE) had a history of diabetes, diabetic retinopathy, hypertension, atrial fibrillation and glaucoma, depression, arthritis and schizophrenia. She was admitted to King’s College Hospital on the 19 October 2010 with pulmonary oedema caused by acute left sided heart failure. On the 27 October, she suffered a hypoglycaemic episode. During a further hypoglycaemic episode, she suffered a seizure and aspirated, following which she was intubated and admitted to ICU.

After unsuccessful attempts at extubation, a percutaneous tracheostomy was inserted and she was transferred to a ward on 30 November 2011. She deteriorated and a CT scan showed left sided cerebellar and pons infarcts and her right arm had become paralysed. She developed cognitive impairment and communication difficulties. CE wanted to go home and wanted to have the tracheostomy removed.

On the 9 February 2011, the notes indicate that there were discharge plans with the family being trained in how to give basic and emergency tracheostomy care. A continuing healthcare funding (CHC) assessment was undertaken and funding was confirmed on the 28 March 2011.

On the 8 and 9 March 2011, CE pulled out her tracheostomy tube obstructing her airway; both incidents required a return to ICU. The family was then informed that she would not be able to go home. The plan was to discharge CE to a nursing home but the nursing home decided not to accept CE as she was medically ‘too unpredictable’.

On the 7 April 2011, psychiatric review concluded that CE did not have capacity to make the decision to have a CT angiogram. There was a plan to identify a nursing home without consultation with the family. A further psychiatric assessment on the 6 June concluded that CE did not have capacity to make decisions about residency or her medical treatment. At no point was a deprivation of liberty authorisation put in place. She was discharged to a nursing home on the 14 June 2011 where nine days later, she was found unresponsive with her tracheostomy tube removed. Cause of death was given as 1a sudden cardiac arrest and 1b lymphocytic myocarditis and self- extubation of tracheostomy tube.

Judgment

Clinical negligence

The judge concluded that the Trust failed to inform the nursing home that CE had previously pulled out her tracheostomy tube, that it had obstructed and that it required extensive suctioning. Had the nursing home been informed of these facts, CE would have been the subject of constant supervision. In light of those findings, the judge found that the Trust was negligent and causatively negligent. The judge decided that

‘but for the defendant’s breaches of duty Mrs Esegbona would not have pulled out her tracheostomy at Wilsmere House because she would have been monitored more closely so that the occlusion or the removal of the tube would have been identified and prevented. Had she not pulled the tube out she would not have had the cardiac arrest’.

False imprisonment

The Trust was found not to have complied with its duties pursuant to the Mental Capacity Act 2005. The Defendant admitted that CE was falsely imprisoned due to their failings. The judge found that CE and her family expressed their wishes for her to go home from 11 February 2011. From this date, there was no proper consideration of her capacity and her needs. A best interests meeting did not take place and she was not referred to the Court of Protection. The Trust’s argument that it was not the ‘decision maker’ was not accepted. The Trust had a clear direction from the psychiatrist. It was found that the Trust was deliberately excluding the family from the decision to discharge her to the Wilsmere House nursing home and from May 2011 onwards, there was an ‘appalling’ disregard for CE and her family’s rights, wishes and feelings.

Damages

For general damages the judge assessed that she would have been ‘very frightened, distressed and alone’ and that she would have died ‘very quickly’. £3,500 was awarded for general damages. It was held that CE was unlawfully imprisoned from the 15 February until the 14 June (119 days) and awarded £130 per day making a total of £15,470.00. The judge found that the family was deliberately excluded from decision making, which led to an award of aggravated damages of £5,000 being made.

Comment

  • This case reinforces the importance of trusts and others identifying when a best interests meeting should be triggered and a possible referral to the Court of Protection if needed
  • No claim was made under article 5 of the European Convention on Human Rights, which carries a time limit of one year whereas false imprisonment is a strict liability offence and has a limitation period of six years
  • It was accepted that the case of Bostridge did not apply because in that case, it related to a technical procedural flaw and the claimant had sustained no loss, as he would have been lawfully detained had the error been known (and so only received nominal damages of £1). In the present case, the correct procedure under Mental Capacity Act 2005 had not been followed and it was not clear what would have subsequently happened