Not so ‘Fluffy’ – substantial damages for false imprisonment after breach of MCA

Written by: Rebecca de Hoest
Published: 6 February 2019

Dr Esegbona (on behalf of the estate of Christina Esegbona, deceased) v King’s College Hospital NHS Foundation Trust  [2019] EWHC 77 (QB)

Introduction

  1. When Mrs Esegbona fell ill in October 2010, requiring a tracheostomy, there was no question she needed hospital care. However, when she was ready for discharge, the Trust’s staff repeatedly ignored her express wish to have the tracheostomy removed and go home to her family. For over three months, the Trust failed to comply with its duties under the Mental Capacity Act 2005, and instead took a ‘high-handed’ and “oppressive” approach. The Trust deliberately excluded her family from any decisions concerning her future care, moving Mrs Esegbona to a nursing home many miles away from her home and family.
  2. Had the Trust complied with its duties under the MCA, Mrs Esegbona’s wishes and feelings would have been considered: she would have had “a voice”… her frustration and distress would have been significantly reduced”. Instead, just nine days after being moved, Mrs Esegbona died, “frightened, distressed and alone (when she should not have been)…”
  3. In January 2019, HHJ Coe QC delivered judgment. The court found clinical negligence, and awarded significant damages and aggravated damages for Mrs Esegbona’s false imprisonment. Importantly, this case demonstrates that a person can recover substantial awards if they are falsely imprisoned, their wishes ignored, and kept, not just away from home, but from any environment that would be more suitable, in circumstances which cause them considerable distress [234 – 236]. It also serves to strengthen the approach to damages taken in the deprivation of liberty HRA case of Essex County Council v RF & Ors (more commonly known as the “Fluffy” case) [2015] EWCOP 1.


Material facts

  1. In October 2010, Mrs Esegbona, aged 67 years, was admitted to Kings College Hospital with a pulmonary oedema. After treatment, she was admitted into the Intensive Care Unit in a coma. Part of her treatment involved having a tracheostomy, and her ability to communicate with the tracheostomy was limited. It was improved by use of a speaking tube and the support of her family and an interpreter.
  2. In early February 2011, plans were made to discharge Mrs Esegbona, who wanted to go home, and have the tracheostomy removed. In March 2011, whilst still in the Trust’s care, Mrs Esegbona pulled out her tracheostomy resulting in a cardiac arrest call. On a number of occasions, she needed urgent suctioning or replacement of the tracheostomy inner tube.
  3. Despite recommendations from its own psychiatrist, the Trust failed to formally assess Mrs Esegbona’s capacity until June 2011, and never did so in the optimal circumstances outlined above. The June assessment concluded that she lacked the capacity to make decisions about her future residence or about her tracheostomy. In mid-June 2011, the Trust moved Mrs Esegbona to a nursing home two hours away from her family, deliberately without any consultation or discussion with them. Nine days later, Mrs Esegbona was found unresponsive, with her tracheostomy tube removed. Tragically, she died alone at the nursing home, without her family.


Legal Issues arising

  1. The Claimant’s claim in negligence was simple. The Claimant argued that the Trust had negligently failed to inform the nursing home that Mrs Esegbona: (i) had wanted to go home and not to a nursing home; (ii) had wanted her tracheostomy tube removed on discharge; (iii) had previously pulled out her tracheostomy tube; and (iv) frequently required urgent suctioning and replacement of the tracheostomy inner tube.
  2. The court had little difficulty determining that the failure to pass on this information amounted to a breach of duty. Had the Trust informed the nursing home of Mrs Esegbona’s tracheostomy care needs, Mrs Esegbona would have been constantly supervised and never left alone. Accordingly, the Trust was found to be “negligent and causatively negligent” [203].
  3. The second line of argument was slightly more complex. There was no dispute between the parties that Mrs Esegbona had been falsely imprisoned. However, the court had to determine (i) the period of that false imprisonment, and (ii) whether the Claimant was entitled to nominal and aggravated damages.
  4. The court found Mrs Esegbona had been falsely imprisoned at the Trust hospital for 119 days. Her period of unlawful imprisonment began when she and her family expressed the clear wish for her to go home, at which point HHJ Coe accepted that “there should have been an urgent, comprehensive and optimal assessment of her capacity followed by either her taking her own discharge or a best interests meeting.” [224]
  5. When assessing damages for false imprisonment, HHJ Coe QC soundly rejected the Trusts argument that this was analogous to Bostridge v Oxleas NHS Foundation Trust [2015] EWCA Civ 79. In Bostridge, had the Defendant complied with its duties, the Appellant would have been lawfully imprisoned in exactly the same place. Accordingly, the Appellant had suffered no actual loss, and was awarded nominal damages of £1.
  6. By contrast, had the Trust complied with its duties under the Mental Capacity Act 2005, Mrs Esegbona would on the balance of probabilities not have remained an inpatient on an acute ward [236]. The Trust ought to have fully identified Mrs Esegbona’s needs and feelings [236], and involved her family, such that “her frustration and distress would have been significantly reduced” [228]. This would have given rise to various care options including interim placement at a care home, and the potentially a return to her own home even on a trial basis, but critically: “following a full assessment whether by an independent assessor or the defendant the true state and nature of Mrs Esegbona’s needs would have been explored fully and wherever she had been discharged to, she would have been better looked after.” [226]. On this basis, the £1 Bostridge award was inappropriate: instead HHJ Coe QC awarded damages of £130 per day, a total of £15,470.
  7. In addition, the Judge awarded aggravated damages of £5,000. The Trust had taken the “high-handed” and “oppressive” approach of deliberately excluding Mrs Esegbona’s family from decisions about her onward care [239]. Moreover, the Trust had consistently failed to follow the advice of its own psychiatrist to carry out an assessment of Mrs Esegbona, with her family present, possibly with an interpreter, and when Mrs Esegbona was not agitated [99].
  8. For pain, suffering and loss of amenity caused by the Trust’s negligence, the court awarded £3,500. It was held that Mrs Esegbona pulled her tracheostomy tube out either because she was unable to breathe or because she wanted to go home. Whichever way, she would “clearly have been very frightened, distressed and alone (when she should not have been) at the time of her death”.


Conclusion

  1. This is an important case for quantifying false imprisonment. First it makes a claim for false imprisonment all the more attractive compared to claiming Article 5 ECHR deprivation of liberty. Breaches of Article 5 ECHR have, in the past, been markedly more generous than damages for false imprisonment. However, Esegbona suggests the court’s willingness to match and raise that by awarding approximately £4,000 per month for false imprisonment. Coupled with the longer limitation period in tort, a claim for false imprisonment may now be a more attractive claim to pursue.
  2. Second, it strengthens the large awards given under HRA claims. HHJ Coe QC’s reasoning echoes that of DJ Mort in ‘Fluffy’ (above). Essex County Council’s wholesale breach of the MCA resulted in an unlawful deprivation of liberty, after it removed a 91-year old man from his home and his pet cat, Fluffy, in distressing and undignified circumstances and placed him in a locked dementia ward. DJ Mort considered that on the basis of the case law to which he was referred, “the level of damages for the unlawful deprivation of an incapacitated person’s liberty is between £3000 and £4000 per month” [77]. He approved a settlement of £60,000, which he said was between £3500 and £4600 per month on the basis that the local authority had also agreed (i) a declaration that it had unlawfully deprived P of his liberty for a period of approximately 13 months; (ii) to waive any fees payable by P to the care home in which he was detained for the period of his detention (around £23,000 to £25,000); (iii) to exclude P’s damages award from means testing, to ensure that the award would not mean that P would be required to pay a greater contribution to his community care costs as a result of the award; and (iv) to pay all P’s costs.
  3. Here, HHJ Coe QC awarded the same for Mrs Esegbona’s false imprisonment, even though it was not certain that Mrs Esegbona would have spent her final days at home. Although there has been some criticism of Fluffy, the decision in Esegbona strengthens DJ Mort’s decision.
  4. Third, under Bostridge, claimants who would have been in the same situation notwithstanding the false imprisonment are limited to nominal damages. Following Esegbona, it will still be important for claimants to demonstrate that, but for the false imprisonment, they would have been in a better situation, but they do not have to prove exactly what better situation that would be. In this way they may recover substantial damages rather than just £1.
  5. Nonetheless it remains to be seen whether Esegbona is a unique assessment of tortious damages reflecting very tragic circumstances, or sets a new bar for falsely imprisoning incapacitous patients.