MCA Breaches: Paying the Price?
Published 6 February 2019
Not following Mental Capacity Act (MCA) requirements can amount to false imprisonment giving rise to significant damages payouts.
So found the High Court in a recent case involving an inpatient who did not want to be discharged to a nursing home, but found themselves without ‘a voice’ due to MCA breaches.
Unlike the ‘technical breach’ line of cases where failure to follow legal requirements around mental health detention have tended to attract only nominal damages, the court found in this case that failing to properly assess the patient’s capacity, hold best interests meetings or to ensure any independent assessment of disputed issues meant the patient had suffered loss which should be compensated.
What was this case about?
In brief, the case of Esegbona v King’s College Hospital NHS Foundation Trust related to an inpatient (Mrs E) with a tracheostomy and fluctuating/deteriorating capacity who wanted to be discharged home but who ended up being discharged to a nursing home without - the court found - any proper best interests assessment or proper involvement of either her or her family. The patient died shortly after discharge to the nursing home and a claim in negligence and false imprisonment was then brought on behalf of her estate against the Trust.
The facts go back to 2010/2011. Prior to these events, Mrs E was living at home but, in October 2010, she was admitted to hospital with shortness of breath. Her condition improved but, just before discharge, she suffered a hypoglycaemic episode leading to a seizure, resulting in her being intubated and admitted to ICU, where she would spend approximately the next 2 months.
Mrs E ended up having to have a tracheostomy, which she really did not like, and which limited her ability to communicate. Following her stay on ICU, Mrs E went on to spend another 6 months on a ward, during which time both she and her family expressed a wish for her to be looked after at home following discharge. This idea was, however, deemed to be too risky in light of her tracheostomy (which had a tendency to become obstructed and, on one occasion - the judge found - was pulled out by Mrs E). She was assessed as eligible for NHS Continuing Healthcare and discharge to a nursing home was planned, despite this not being what Mrs E or her family wanted.
Mrs E ended up being discharged to a nursing home in June 2011, with only a day’s notice to her family. She died only a week or so later having again, so the judge found, removed her tracheostomy tube.
What did the court decide?
The Trust was found to have been negligent in not relaying certain information to the nursing home in relation to Mrs E’s tracheostomy - particularly that she had expressed a wish to remove her tracheostomy tube herself once discharged. Had this information been shared as it should have been, there would have been closer monitoring of Mrs E in the nursing home, which is likely to have prevented her removing the tube. The judge awarded damages of £3,500 for her pain and suffering in terms of the manner of her death.
The judge decided that - from the time Mrs E started saying she wanted to go home in February 2011 until her discharge from hospital in mid-June 2011 - she was being falsely imprisoned because of failure to take the steps needed under the MCA to make her care arrangements lawful.
Specifically, there should have been an urgent, comprehensive assessment of capacity (which should have involved optimising her communication with the tracheostomy speaking valve, presence of family members to aid communication and a clear statement of what was being offered in terms of future placement), followed by her either taking her own discharge (if she was found to have capacity) or a best interests meeting (if not). If she was found to lack capacity (which the judge thought would have been the case from around February onwards), the difference of views as to future placement meant there should have been an application to the Court of Protection. The family had not been properly consulted and the patient’s wishes and feelings not properly taken into account.
The judge then went on to consider what level of compensation - if any - should he award for this period of false imprisonment?
Although the Trust had admitted false imprisonment (albeit for a shorter period than that claimed), it argued that any damages should only be nominal because Mrs E would not have been able to go home in any event, meaning that her situation would have been no different even if MCA requirements had been met.
The judge disagreed and found that nominal damages would not be appropriate because Mrs E had suffered loss which should be compensated.
In particular, the judge said - although he could not second-guess what an independent assessor would have found to be in Mrs E’s best interests - a care package at home might potentially have been the outcome (especially given she had six children who may have been available to help with care at different times, two of whom were medically qualified). Plus - whilst there would not have been an ‘initial shock’ of detention - she would have been less distressed and frustrated had the Trust complied with its MCA duties because matters would have been explained to her and her family more fully and their wishes and feelings listened to.
The bottom line was that - had the MCA been complied with - “Her voice would have been heard”.
A reasonable level of compensation for this on the particular facts of this case was decided by the judge to be £130 per day (amounting to £15,470 for 119 days).
That was not the end of the story, because there was also a claim for ‘aggravated damages’ which can be awarded if a defendant’s behaviour is found to be ‘high-handed’ or ‘oppressive’. In particular, it was argued on behalf of the family that aggravated damages should be awarded to reflect them having been deliberately excluded from the decision-making process about what would happen on discharge. The judge agreed and decided to award aggravated damages of £5,000 to reflect his finding (based on entries made in Mrs E’s records at the time) that the family had indeed been deliberately excluded, with them not having been told anything about the chosen nursing home until the last possible moment before discharge.
This case further underlines the importance of ensuring that MCA requirements relating to capacity assessments, best interests decision-making and safeguards against unlawful deprivation of liberty are fully and thoroughly complied with.
Otherwise, health and social care providers could find themselves faced with a false imprisonment claim which could carry significant financial implications where patients find themselves denied the ‘voice’ which the MCA is designed to give them.
While any determination of loss or damages will be necessarily case specific, the clear finding that nominal damages are insufficient where there is a failure to hear the voice of the patient and their family is a significant finding. If damages are to be assessed on a daily rate, with additional aggravated damages in circumstances where the family are deliberately excluded, the financial exposure of decision makers appears to have increased significantly.
How we can help
Our national team of Mental Capacity Act and Court of Protection specialists can provide responsive, practical advice to commissioners and providers across the health and social care sector on all aspects of the law in this area, including:
- Specialist training for staff involved in the assessment of capacity and implementation of the MCA and DoLS framework;
- Guidance on whether a DoLS application is necessary and the evidence required to support any application made;
- Section 21A challenges to DoLS authorisations;
- Court of Protection welfare applications relating to care and/or accommodation.