In 2004 the National Institute for Health and Care Excellence (NICE) issued guidance on this subject. It was reviewed in 2012 and is available on their website.
We thought we would draw attention to them in the light of the annual crop of cases where the phrase “lack of care” attends the verdict at an inquest.
Neglect causing death - are you ready to attend this inquest?
An inquest is an inquiry to discover who has died and when, where, and how they died. It is convened in cases where the death was violent or unnatural or when a person is in state detention, for example detention under the Mental Health Act, or when the cause of death remains unclear after a post-mortem.
Article 2 of the European Convention on Human Rights, which is enshrined into the law of England & Wales by virtue of the Human Rights Act, requires a more wide ranging inquest to be held in cases where there has been a death in custody/detention. Cases where the deceased has been under the care or responsibility of social services or healthcare professionals are often included in this category of inquest so those providing care for persons with mental illness or severe learning disability, or dementia type illnesses, will at some point come across this type of inquest when a person in their care dies. Insurers of such organisations will, as part and parcel of their underwriting due diligence, have increasing regard to the degree to which the providers of care (in a growing independent health care sector and a public sector that is increasingly interested in the availability of commercial insurance) adhere to and actively use the guidance referred to.
Following R v Coroner for North Humberside and Scunthorpe, Ex p Jamieson (1995), a coroner will consider whether a lack of care has led to the cause of death of the deceased. Coroners will not use the term “neglect” as part of their verdict as to how the deceased came by their death unless a clear and direct causal link is established between the conduct (or omission) which gives rise to the neglect and the death.
"Lack of care" verdicts
Each year a number of cases are reported in the press where the phrase “lack of care” features in the verdict. The press report these cases as damming indictments of a failure to look after the health and well being of people who are often the most vulnerable in society.
Take for example a case reported by the BBC on the 19 March 2014 where a 36-year-old man, James Pollard, took his life while detained under the Mental Health Act at Fromeside Hospital in Bristol.
Mr Pollard had a history of contact with mental health services having previously attempted to kill himself by strangulation/hanging including one incident only six months before his death in May 2013. These attempts had included tying ligatures to basin taps. Known to conceal his symptoms and act impulsively, he was given access to a music player and, importantly, an electrical power cable for the music player (which he was required to hand back at the end of each day). He was subject to ten minute observations by staff when in his room.
Sadly, using the power cable tied to a basin tap, Mr Pollard strangled himself. Once discovered by staff he could not be revived and died.
The subsequent inquest returned a verdict that his death was “…contributed to by neglect” which meant that the jury decided the deceased was in a position of dependency or reliance on others (in this case the staff at Fromeside); and that there was a gross failure to provide basic medical attention that led to or contributed to his death.
There were a number of factors that led to this verdict drawn from the evidence presented to the hearing by the staff and parents of the deceased. That included evidence that only days prior to his death the deceased had seen his parents during a visit and they had reported to the staff their concerns that his presentation was similar to that immediately before his previous suicide attempts. His parents views were especially significant because his father was a retired GP with past experience of working in psychiatric crisis services. Despite these warnings the explanation from the staff was that they felt unable to change the care plan, for example by removing the music player or increasing observations. To do so would involve explaining why a more restrictive plan was being put in place and this would inevitably mean discussing matters with the deceased that were drawn from conversations with the parents about him. The staff felt that that this would cut across the efforts they were making to maintain a trusting relationship that encouraged the deceased to share his feelings and concerns with them.
Of course it is a fundamental tenet of working with persons with mental illness that the staff have to get to know the patients in order to recognise changes in their behaviour that could be a prelude to an episode of self harm or violence. Creating and maintaining a therapeutic relationship is key to the management of such persons. However, it was wrong for the staff to believe they could not breach confidences as both GMC guidance and the Mental Health Act code of practice make clear that the duty of confidence is secondary to, for example, using information with a view to preventing a serious risk of self harm.
Looking at the reports of this inquest, it seems that the views taken by the staff about the issue of confidentiality, and in particular the use they could make of information provided by the parents, coloured their approach to the development or review and application of the care plan. This was a plan that allowed a power cable which could be, and was, used as a ligature to be left with the deceased for periods of up to ten minutes at a time without observation. If, as the jury seemed to appreciate, there was a serious risk of self harm the care plan ought to have been reviewed to remove the potential ligature and/or to reduce the periods within which observations would take place. Medical opinion is generally agreed that brain death will occur within four to five minutes of effective strangulation.
Inquest hearings are not fault finding hearings
This is a fact the coroner will always make clear to the jury and to those giving evidence. This is why no verdict can ever be framed in a way that might suggest an individual is at fault. Inquests are however very useful learning opportunities as are the untoward incident reviews or root cause analyses that take place after such tragic events. That is why this article draws attention to the NICE guidance and raises questions that are as important for care providers and their staff as they are for the insurers of those who provide care. Is the guidance embedded and adopted within the provider organisation? Are the staff trained in its implementation? Is the duty of confidence understood? In particular how effective is communication between patient, carers and relatives where there is an identifiable serious risk of self harm? How effective are risk assessments when viewed against, for example, observation policies within a care plan or the regular audits of the existence of ligature points?
Professor Louis Appleby was National Director for mental health from 2000 - 2010 and offender health from 2010 - 2014, and leads the national suicide prevention strategy. He was asked: "What would it take ... to substantially reduce the risk of suicide for people with mental health problems?" While taking his conclusions slightly out of context, one of them was “trust in families”.