Christiana Esegbona was a 68-year-old who was independent and self-caring when she was admitted to Kings College Hospital on 19 October 2010 with shortness of breath. She was fit for discharge within a week, but before she could leave hospital suffered a hypoglycaemic episode and went rapidly downhill. 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. She had consistently said she wanted to go home, and her family wanted her to go home. But she and they were told by the 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 discharged on 14 June 2011 to a nursing home miles away from her family, and there, 9 days later on 23 June 2011, she died after her tracheostomy tube came 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 in the Mental Capacity Act 2005 (MCA) to undertake a full capacity assessment of Christiana and, if she did not have capacity, a best interests assessment. The hospital also intentionally kept Christiana’s family in the dark about the discharge until the last minute, so that they could not object.
Alasdair Henderson successfully represented Christiana’s family, instructed by Emma Jones of Leigh Day, in a claim against the hospital for false imprisonment and for negligent failures to provide adequate information to the nursing home. The High Court awarded aggravated damages because of the deliberate exclusion of the family from the discharge planning process.
The MCA has been in force for over a decade, and legislation amending it is currently going through Parliament, yet this case is a reminder that further work is needed to embed its principles into day-to-day clinical practice.