Litigation and inquest forum, February 2017, Birmingham

Litigation and inquest forum
February 2017, Birmingham

Delayed Transfers of Care
Simon Charlton, Partner

Contents
• Overview and context
• Main issues
• Common causes of delays
• Common issues
• Summary
• Case studies

Delayed Transfers of Care – An
overview
• Estimated cost to NHS of £900m per year (Carter
report, Feb. 2016);
• A mixed duty (legislation and common law);
• A joint obligation (health and social care);
• Importance of getting the basics right –
Implementing good practice, knowing your own
policy, and how/when to escalate
• What can we do?

Delayed Transfers of Care – An
overview
• Discharge isn’t an isolated event, but often the
transfer from one care setting to another;
• Often need to think in broader terms than the legal
and policy issues such as the impact on the Trust’s
reputation and staff morale.

DTOC – some context
Reason for delay Year to September 2015 Change from previous year
Awaiting further non-acute NHS care 327,638 +6.7%
Awaiting completion of assessment 306,450 +11.3%
Awaiting care package in own home 264,082 +62.1%
Awaiting nursing home placement 226,863 +21.4%
Patient or family choice 216,844 +2.2%
Awaiting residential home placement 182,944 +12.9%
Awaiting public funding 67,405 -2.7%
Housing 48,642 -10.8%
Awaiting community equipment
and adaptations 42,243 +2.4%
Disputes 19,418 +2.2%

• Traditionally discharge from hospital is seen as either “simple’ or
“complex”, with different care pathways for each. Most discharges are
“simple” and involve basic arrangements for P returning home, usually
where P has no significant post-discharge need for care and attention.
• Although much of the guidance in this area is now quite dated many of the
principles still apply (though be wary of outdated references to old
legislation):
• For “simple” discharges see: “Achieving timely ‘simple’ discharge from
hospital, 2004”
• For “complex” discharges need to consider a range of guidance, policy and
legislation depending on the context.

• For “complex” discharges may need to consider:
- “Discharge from hospital: pathway, process and practice” (DoH, 2003);
- “Definitions – Medical Stability and Safe to Transfer” (DoH, 2003);
- “Ready to go: Planning the discharge and transfer of patients from
hospital and intermediate care” (2010), DoH;
- Schedule 3 to the Care Act 2014 & Care Act 2014 Guidance
- Care and Support (Discharge of Hospital Patients) Regulations 2014 (Acute care)
- “Transition between inpatient hospital settings and community or care home
settings for adults with social care needs”, (NICE ,NG27, December, 2015)
- NHSE Guidance “Template Policy: supporting patients’ choices to avoid long hospital
stays”, 23 March 2016
• And ,of course, Trust’s own hospital discharge policy

Getting the basic right - PHSO Report May 2016
common issues
1) Patients being discharged before they are clinically
ready to leave hospital;
2) Patients not being assessed or consulted properly
before their discharge;
3) Relatives and carers not being told that their loved
one has been discharged
4) Patients being discharged with no home-care plan in
place or being kept in hospital due to poor co-
ordination across services

Issues which can delay hospital discharge
• Law has focused on discharge from acute care (defined as “intensive NHS funded
medical treatment provided by or under the supervision of a consultant which is
for a limited time after which the patient no longer benefits from that
treatment”)
• For example, the delayed transfer of care legislation which sets out certain
assessment and notification requirements, as well as allowing the NHS to recoup
money from Local Authorities, only applies to acute care settings. It does not apply
to maternity, mental health, palliative, or intermediate care settings.
• Regardless of the setting, or whether “simple/complex”, discharge should only
proceed where:
- 1) P is clinically/medically fit for discharge (a clinical decision)
- 2) Discharge will be “safe” (duty of care to P to discharge safely. Breaching this
duty could led to P being able to claim damages against the Trust).

Common delays: NHS
• Delays can be caused by:
- Awaiting CHC assessment (NB Framework and NHSE Guidance suggests CHC
eligibility should not generally be carried out in hospital setting as this
may distort accurate assessment of need – also suggests that CCGs can
fund care in interim pending CHC assessment in appropriate environment);
- CHC panel decisions (particularly if high-costs considerations);
- Not commencing discharge planning early enough;
- Poor communication within the Trust and with key partners in social care
and CCGs;
- Lack of understanding about who is responsible commissioner for post-
discharge (CHC eligible, s.117 MHA 1983 or Joint Funded);
- Misunderstanding the role of best interests under MCA 2005 and hospital
discharge.
- Lack of awareness of Trust policy and possible tools to facilitate
discharge.

Common delays: social care
• Delay in carrying out Care Act 2014 assessments
• Delay in finding suitable accommodation/care if eligible for
services following assessment
• Delays/waiting list for provision of re-ablement services
• Delays in provision of housing aids and adaptations
• Arguments about whether P has no recourse to public funds (NRPF)

Other common delays
• P/Family saying they won't be available on the
proposed discharge date;
• P/Family opposed to discharge to residential care;
• P/Family consider P not fit for discharge;
• P/Family refusing to agree to discharge until refusal of
CHC eligibility is reviewed;
• P lacks capacity to decide where to reside post
discharge.

DTOC - Key points
• Need to ensure that good practice discharge guidance is
followed, both in terms of clinical practice and process;
• Ensure P and/or P’s family properly consulted;
• Try to begin discharge planning as soon as possible;
• Ensure discharge planning is done via MDT where possible
• Ensure timely communication with care home/LA/CCG that
will be responsible for P post-discharge
• In difficult cases seek support as early as possible.

Discharge from acute beds
• Care Act 2014 schedule 3
• Care and Support (Discharge of Hospital Patients)
Regulations 2014
• Process no longer mandatory
• Assessment Notices from NHS to LA (s.1 Sch.3)
• Discharge Notices (s.2(1) Sch. 3)
• LA needs assessment (s.3(1) Sch.3)
• Delay: LA must pay NHS daily “specified amount” (s.4
Sch.3)
• Doesn’t apply to non-acute settings, MH, Maternity or
Palliative care

DTOC: Difficult Areas
• Mental Capacity Act and best interests
• Social care delays
• S.117 aftercare
• Responsible commissioner disputes
• No recourse to public funds
• CHC issues

Delays due to P lacking capacity
• Very important that robust assessment of P’s capacity is carried out as
early in discharge planning as possible and written record kept;
• P lacking capacity or questions about where it is in P’s best interests
to reside post-discharge should not prevent discharge as clinical
decision that does not depend on whether P has capacity or not;
• Where P should go post-discharge is a BI decision, but Trust can
discharge duty to P by ensuring that any discharge is safe and
appropriate;
• In most cases it should be possible for P to be discharged to interim
placement whilst dispute about long term BI is resolved – exception
may be where P would be too frail or ill to move twice in a relatively
short period of time.
• Consider application to CoP in appropriate cases for one off hearing
authorising P’s move to specific care home where P or family are
objecting

Common Issues: Delay in social
care
• LA under duty to assess under Care Act;
• Duty to cooperate with NHS under Care Act 2014;
• Wider “wellbeing” duties around housing etc.
• Key is early effective communication, and
appropriate local arrangements for escalation in
event of delay;
• Important that all involved are aware of respective
obligations on health and local authority

Common Issues: S.117 MHA Aftercare
• S.117 places joint obligation on CCG and LA to provide aftercare services
to P if under qualifying detention (usually s.3 MHA);
• Aftercare now defined by s.117(6) means (a) meeting a need arising from
or related to the person's mental disorder; and (b) reducing the risk of a
deterioration of the person's mental condition (and, accordingly, reducing
the risk of the person requiring admission to a hospital again for
treatment for mental disorder
• LA may say that not required to provide aftercare (as often appears local
arrangement between CCG and LA that LA would provide accommodation,
and CCG health services)
• Can resist this as s.117 can include accommodation if both a) & b) above
satisfied, and it is for CCG and LA to decide how to meet those aftercare
needs

• Where P may be eligible for s.117 aftercare, and CHC, then CHC
Framework says s.117 takes precedence (so LA cannot insist that
only CCG has responsibility for P post-discharge as it remains joint
under s.117);
• Obviously, only applies to needs related to mental disorder – P
could be eligible for CHC (and so only CCG responsibility) if
physical needs are “primary health need”.
• When planning discharge it is important to ascertain as soon as
possible which statutory bodies will be responsible for P’s care
post discharge

• Working out the relevant LA/CCG means applying s.117 and the
Care Act 2014 Guidance for LAs and responsible commissioner
guidance for CCGs
• Basic position is that for LAs the relevant test is where P was
resident when they were detained.
• In respect of P discharged after 1 April 2016 this is also the test for
determining which CCG is responsible for s.117 aftercare
• For P discharged between 1 April 2013 and 31 March 2016 the RC
for s.117 is to be determined by wherever P’s GP is located (or
where P is resident if no GP)

Common Issues: NRPF
• Delays often caused by statutory bodies saying that they are not
responsible for post-discharge care as P has “no recourse to public
funds”.
• Usually this means that P’s immigration status prevents them from
being able to access services such as social services support,
housing and benefits.
• These exclusions don’t apply to s.117 MHA to which P is entitled if
they meet the criteria irrespective of immigration status.

Common Issues: NRPF
• Social services still required to carry out assessment of someone who has
NRPF;
• Even if NRPF social services may still have an obligation to provide post-
discharge services (including accommodation) to P if failure to do so
would breach their human rights.
• Children are excluded from the general prohibition on accessing services
so children’s services may need to consider providing services including
accommodation to child or family of child in need
• Entitlement to health services (other than non emergency hospital
treatment) is currently not affected by P’s immigration status – it is no bar
to someone receiving CHC for instance;
• If P is NRPF then home office may have obligation to support them
(including the provision of accommodation) under ss.4 or 95 so called
“NASS Support”

Common issues: entitlement to CHC
• Framework says that hospital not usually the best place to assess CHC
eligibility, and that CCGs have power to commission services to facilitate
discharge and carry out CHC assessment in non-hospital environment.
• CHC determined by MDT considering whether P has primary health need
• If eligible for CHC, relevant CCG to be determined by where P’s GP is
registered (or where P resident if no GP);
• Note that if P already entitled to CHC, responsibility remain with
originating CCG even if P is admitted to hospital and reregisters with GP
elsewhere
• CHC assessment process has specified time limits (28 days from receipt of
checklist or other notification)
• Appeal can take 6 months – not appropriate for P to remain hospital
pending this

Summary - what can be done
1. Have a robust discharge policy that staff are aware of and can regularly refer
to.
2. Identify as early as possible if P will likely require support post-discharge.
3. If so, ensure that MDT considers what type of support may be required.
4. MDT should include social services and a representative of the CCG or CSU;
5. As early as possible, seek to ascertain which organisation(s) will be responsible
for commissioning P’s post-discharge care. This will depend on whether P will
be entitled to s.117 aftercare, CHC, joint packages between health and social
care or social care funding only. Discuss proposed discharge arrangements with
the patient and their family (if P consents) as early as possible (unless such
discussion would cause clear and demonstrable harm to P);
6. If there is a dispute or disagreement see if an acceptable resolution can be
reached informally. Ensure patients are made aware of the options available
to them and how to access these. If P vulnerable consider whether the LA
should be requested to provide a Care Act advocate to assist P.

7. In cases of delay/potential delay, agree a timetable for specific actions to
be taken by the patient (or those advocating for the patient) after which
the matter may be escalated.
8. Ensure such timeframes take into account the needs and circumstances of
the individual concerned, including any support or assistance they may
require.
9. Where delays is in an acute setting are being caused by Local Authority
inaction, Trust can consider triggering the delayed discharge mechanisms
under Sch. 3 Care Act 2014.
10.Where a patient is unreasonably refusing to engage in the discharge
process, and efforts at resolution have failed, consider if it is appropriate
to exercise the powers under the Criminal Justice and Immigration Act
2008. This makes it a criminal offence for a person to refuse to leave NHS
property when requested to do so if the person has caused a nuisance or
disturbance and is not there to obtain medical treatment (s.119). There is
a power permitting the removal of such a person, using reasonable force if
need be (s.120).

11. Guidance in this area suggests that refusing to leave hospital when
medically fit could constitute a nuisance, but this is untested, and the courts
may not accept that a passive and otherwise compliant P who is refusing to
leave hospital is committing the criminal offence.
12. Can’t use the powers where P still requires treatment, or there is a risk of
harm to P if the powers are used.
13.Where the refusal of a clinically fit P is accompanied by P being
verbally/physically abusive, or disruptive to the attempts to provide care to
others, the scope for using CJA powers in greater.
14.Before exercising such powers a Trust should write to the patient to put
them notice that it is considering this course of action and offering the
patient a further opportunity to engage with the discharge process.
15. Often the threat of using enforcement powers is sufficient to get P
and/or family to relent.

16. If the patient lacks capacity around post-discharge care and residence
ensure the MCA is followed, but note that the decision to discharge is not
itself a best interests decision.
17. An application to the Court of Protection seeking a declaration that it is
in their P interests to be discharged to an alternative location pending
resolution of their long-term care may assist in resolving the issue.
18. The Trust should invite the relevant statutory body/bodies with
responsibility for P’s post-discharge care to make this application, but where
met with refusal/delay the Trust could make the application itself and ask
that the relevant body be added as applicant at the first hearing and the
Trust removed as a party.

19. As last resort can consider serving formal notice revoking the licence
under which the patient occupies a bed, and ultimately seeking a court
order permitting that person’s removal from the hospital under the law
of trespass (Sussex Community NHS FT v Price (2016) and Barnet PCT v X
[2006].
20. Before taking this step the Trust should write to the patient putting
them on notice that it is considering this course of action.
21. In all discharge cases the Trust can only discharge P from hospital
premises where P is clinically fit, and it is safe to do so.
22. If the Trust is proposing to discharge P to somewhere else the Trust
(or whichever body will carry put the transfer) needs to have lawful
authority for this.

23. In most cases this will be lawful because P has capacity and
has consented to be discharged home, or to a care home;
24. Where P lacks capacity, this will only be lawful where a
best interests decision has been made on P’s behalf
25. In neither case, unless they hold a valid welfare power of
attorney or deputyship, will the agreement of P’s family
provide authority to transfer P to somewhere else post-
discharge.
26. In all discharge cases, must consider the reputational risk
to the Trust

Sussex community NHS Foundation Trust
v Price (October 2016)
• Action for repossesion of room in health funded
intermediate care facility where “normal” stay is
14 – 28 days;
• P admitted in August 2015 and no medical needs
from November 2015
• Self-caring and refusing all attempts to engage her
in discharge planning
• Possession ordered “forthwith” as P was able to go
home, and ordered to pay £8,000 legal costs

Case studies – X & Y
• X & Y were married and had lived together in their home for over 50
years. There was some indication that X had a cognitive impairment and Y
was bedbound.
• Their home had fallen into significant disrepair, and X & Y were
considered by professionals to be hoarding significant amounts of items at
the property.
• After an emergency call X was taken into hospital and Y continued to
reside at the property alone. Y wasn’t coping and an ambulance was
requested which then took Y to hospital.
• Whilst in hospital a prohibition notice was placed on the property
preventing X and Y from living there until extensive remedial works were
carried out. Various professionals expressed differing views as to whether
X and Y had capacity to decide where they should reside post-discharge
from hospital.

X & Y case study
• When both X and Y were medically fit for discharge they refused to
leave on the basis that they would only agree to be discharged
home, which was not possible as a result of the prohibition notice.
• Security had to be called to deal wit X & Y’s behaviour on a
number of occasions.
• X & Y had started to hoard in the hospital, with rotten food
beginning to present a health risk.
• On discharge X and Y would be eligible for support from social
services, but both had refused to accept this offer of support.
• What issues arise in this case?

Case studies – X & Y
• In this case the Trust involved, insisted that it was the LA’s responsibility
to make an application to the CoP
• The Trust supported the Local Authority in an urgent application to the
Court of Protection.
• The Court concluded that there was evidence that X and Y may lack
capacity to decide where to reside, but that they should not remain in
hospital whilst this issue was resolved.
• An order was made authorising X and Y’s discharge to a care home in the
interim whilst the longer term care and residence issues were resolved.
• The order authorised the use of reasonable force to move X & Y, and the
court invited the police to attend as part of the order
• Trust was removed as a party to proceedings at that early stage.
• Imagine if the court had found that X & Y did have capacity? What options
would be open to the Trust and what issues arise?

Case Study – Mr A
• Mr A is 45 and lives with his wife. He is partially sighted, mobility
issues, significant breathing difficulties, and a mild cognitive
impairment as a result of a car accident when he was younger.
• Mr A fell and was admitted to A&E with a suspected broken leg
requiring surgery. He is reported to be muddled and confused.
• With the surgery completed Mr A is considered medically fit for
discharge. After the surgery Mr A’s wife says that she won’t agree
to his discharge until he receives a higher support package to help
her care for him at home as he is likely to be even more immobile
then before. She also feels that his needs have increased
significantly.
• What potential issues arise here?

Potential Issues
• Indication that may lack capacity but no
assessment;
• No indication of post-admission discharge planning;
• Mr A may need additional care. Need to contact LA
to ensure assessment is carried out;
• Needs may have increased so CHC assessment likely
to be required.

Case Study – Mr A
• Professionals in the hospital are concerned about Mrs A’s ability to
look after Mr A, and have decided that it would be best for Mr A to
move to residential care.
• His capacity is assessed and it is found that he lacks the capacity
to make this decision.
• The Trust have identified a care home that will take Mr A at short
notice, and the ambulance service will take him there.
• Mrs A opposes this and wants him to come home. It is explained to
Mrs A that she isn’t the decision maker under the MCA as this is
always the statutory body concerned and that the best interests
decision has been made.

Potential Issues
• No evidence of discussion with CCG/LA who will be
responsible for the care home placement;
• No proper consultation with P or Mrs A in making the
best interests decision.
• No indication that Trust has checked whether Mrs A has
LPA
• Case law indicates that where best interests are in
dispute, attempts should be made to resolve these
informally, but if not possible may require application
to Court.

Mr A Case Study
• The Trust decides not to discharge Mr A until the LA makes an
application to the CoP, but Mr A’s behaviour has begun to
deteriorate to the extent that, due to violence to others, he is
detained under s.3 of the MHA and transferred to the Trust’s
psychiatric in-patient ward;
• In the meantime Mrs A’s wife has herself fallen ill and is receiving
long term treatment in hospital.
• The property that Mr and Mrs A had been renting has been
repossessed due to rent arrears having accrued.
• Mr A’s treatment for his metal disorder is complete and he has
made a good recovery. He is also assessed as having regained
capacity to decide where to reside.
• The Trust contact the LA who say that they don’t have an
obligation to rehouse Mr A.

Potential issues
• Not necessarily the Trust’s responsibility, but shouldn’t
someone have considered Mr A’s tenancy and what to
do about the arrears (can in some cases claim HB for up
to 52 weeks if in hospital)? Would have meant his own
property was available on discharge.
• Mr A is entitled to s.117 aftercare which is not just LA,
but CCG also.
• Whether s.117 aftercare includes the need for
accommodation depends on the two part test earlier.
• Although s.117 takes priority over CHC for mental
health needs, he could still be eligible for CHC for
physical needs – assessment still not happened.

Questions?
Simon Charlton
E: simon.charlton@brownejacobson.com
T: 0121 296 0698

The MCA 2005 and Deprivation
of Liberty – An Overview
Emmett Maginn

What we will cover
• MCA 2005 Overview
• Advance Decisions and LPAs
• Court of Protection – When to go to court and why
• Deprivation of Liberty – the “acid test”
• DoLS
• DoL in hospital

Why does this matter?
• MCA is about capacity to make decisions for yourself
• Compliance/acquiescence is not the same as consent!
• Implications of getting MCA wrong:
– Assault (criminal and civil)
– Negligence claims
– Complaints and disciplinary action

Five Basic Principles
1) A presumption of capacity
2) All reasonably practicable steps to empower P to
make the decision.
3) Unwise decisions do not mean lacking capacity
4) If a person lacks capacity, decision made on their
behalf must in their best interest
5) Decision made in best-interest must be least
restrictive

The MCA Capacity 2 stage test
S2 - Does the person have an impairment of, or a disturbance in the
functioning of the mind or brain? Does that impairment mean the
person is unable to make a decision that they need to make?
s3 – P is “unable to make a decision for himself” if he is unable to do
any of these:
– To understand information relevant to the decision
– To retain that information
– To use or weigh that information in the decision making process, or
– To communicate his decision

“Maximise” P’s ability to decide
• Does P have all relevant information? - CC v KK
(2012)
• Could the information be presented in a way
that is easier for P to understand?
• Are there particular times of day when P’s
understanding is better?
• Can the decision wait if P will recover capacity
• Is a SALT referral needed? Is specialist input
required around behaviour, medication or
communication?

Some case law
• A competent patient can refuse treatment
– Re MB (1997)
– Re B (2002)
– Kings College Hospital FT v C & V [2015]
• Children – aged 16 & 17 (within MCA jurisdiction)
– NHS FT v P [2014]
• Mental Health Act
– Re C [1994]

Recording capacity assessments
• Capacity assessments should be recorded in the
patient’s notes or on file;
• Note should record why the patient is deemed to
lack capacity;
• Assessments of capacity should be proportionate.
• The more significant the decision for P the more
formal the assessment of capacity is likely to be
and the more extensive the record that will need
to be made.

What do you do if a person
lacks capacity?
• S.4 Any decision made, on behalf of a P who lacks
capacity, must be done in that P’s best interests
• That principle applies whether the person making
the decisions is a family carer, a paid care worker,
or a healthcare professional

How do you assess best
interests?
Under the MCA, the decision maker must consider:
• P’s past and current wishes and feelings –
particularly if previously had capacity
• Any beliefs and values (e.g.. religious, moral or
cultural) that would influence P if they had
capacity
• Advance Decisions to Refuse Treatment
• Wye Valley NHS Trust v B [2015]

Consulting others
• But, you must take into account, if practical:
– Anyone named by the patient as a person to be
consulted
– Anyone engaged in caring for the patient, including
close relatives
– Anyone with a Lasting Power of Attorney or a Court
appointed Deputy for personal welfare issues
– If appropriate, an IMCA

Best Interests decision making
• General position is that nobody can consent /
refuse on behalf of an incompetent adult (but see
Lasting Power of Attorney or Court of Protection
appointed Deputy)
• Best interests decision can be seen as a
collaborative process
• So Beware of thinking “the family have consented”

Advance Decisions
Valid Applicable
Made by P over 18, with capacity The patient lacks capacity at the time
of proposed treatment decision
No need to be in writing, unless relates
to life sustaining treatment
The treatment is expressly specified in
the advance decision
No subsequent relevant Lasting Power
of Attorney
There are no reasonable grounds for
believing circumstances exist which the
donor had not anticipated at the time
of the decision
No other “clearly inconsistent” act
Not subsequently withdrawn

Lasting Powers of Attorney
• Introduced by MCA 2005 s.9
• LPA can authorise donee to make decisions about:
– A donor’s welfare; and/or
– A donor’s property and affairs
• Must be made while donor has capacity
• Can include refusal of or consent to treatment,
providing express provision is made to that effect
• Welfare LPA applies only when the donor no longer has
capacity
• Must be registered with the Office of the Public
Guardian before use
• Cannot make decisions about life sustaining treatment
unless expressly stated in the LPA

COP – A forum for sharing risk
• Disputes over capacity
• Disputes over best interests – welfare and finance
• Deprivation of liberty where P lacks capacity
• S.21A MCA Appeals
• Some serious healthcare decisions must go to court
• Validity of advance decisions
• Removal of LPA
• Appointment of deputies
• High court inherent jurisdiction may apply if CoP
cannot deal with case

COP
• Briggs [2016]
“I have concluded that as I am sure that if
Mr Briggs had been sitting in my chair and
heard all the evidence and argument he
would, in exercise of his right of
self-determination, not have consented
to further CANH treatment, that his best
interests are best promoted by the court
not giving that consent on his behalf.”
• NB – procedural point re s15/16 & s.21A

COP
• SR v Bury CCG [2016]
• Daughter’s application re withdrawal of CANH – agreed by judge in
2015
• Usual rule in CoP is no order for costs but she sought her legal
costs back from the CCG – due to CCG’s conduct
• Hayden J awarded 50% of her costs against the CCG

Art 5 – Right to liberty and
security
“Everyone has the right to liberty and security of
person. No one shall be deprived of his liberty save
in the following cases and in accordance with a
procedure prescribed by law”:
• after conviction by a court;
• lawful arrest;
• lawful detention of a minor for educational supervision;
• lawful detention for the prevention of the spreading of
infectious diseases, of persons of unsound mind, alcoholics or
drug addicts or vagrants;
• lawful arrest to prevent unauthorised entry into the country

“Lawful detention”
• Everyone who is deprived of his liberty by arrest or
detention shall be entitled to take proceedings by
which the lawfulness of his detention shall be
decided speedily by a court and his release ordered
if the detention is not lawful (Art 5(4))
• Everyone who has been the victim of arrest or
detention in contravention of the provisions of this
article shall have an enforceable right to
compensation (Art 5(5))

Deprivation of Liberty Safeguards
• Bournewood - de facto detained
• Schedule A1 (2009) amendment to MCA - DOLS

“… human rights are for everyone, including the
most disabled members of our community,
and … those rights include the same right to
liberty as everyone else”
Lady Hale (para 1)
“… features consistently regarded as key in the [ECHR]
jurisprudence - that [P] was under continuous
supervision and control and was not free to leave”
Lady Hale (49)
Cheshire West

Excluding factors (previously) typically
relied on to say no DOL…
• P’s disability / ‘relative normality’
• P’s awareness / compliance
• reason or purpose behind the placement
• the quality / appropriateness of the care
• “A gilded cage is still a
cage”
Just as important…

Deprivation of liberty in hospital
LF v Coroner Inner South London (2017)
• Case is concerned with the application of DoL in an acute medical setting
• Maria, 45, Down’s syndrome was admitted to Hospital with pneumonia
19.11.13
• Deteriorated and moved to ICU 2/3.12.13, but died 7.12.13
• Coroner’s inquest but started without jury
• JR of that decision – jury is mandatory if not natural death and D was “in
state detention”
• Divisional court held not “in state detention” and no DoL as context of CW
was different to ITU and should not be “mechanistically” applied. Maria’s
family appealed.

Court of Appeal – 26 January 2017
• held that “in general” there will be no DoL in the context of
life-saving medical treatment because:
– context (distinguishing Cheshire West and disengaging
Article 5)
– non–discrimination
– not “not free to leave”
– resources

Context – No DoL
• “…any deprivation of liberty resulting from the administration of life-
saving treatment to a person falls outside Article 5(1) (as it was said in
Austin) “so long as [it is] rendered unavoidable as a result of
circumstances beyond the control of the authorities and is necessary to
avert a real risk of serious injury or damage, and [is] kept to the
minimum required for that purpose”.
The above quote would appear not to limit the court’s reasoning to ITU, but
to all settings where life-saving treatment is administered.
• “in essence…acute condition of the patient must not have been the result
of action which the state wrongly chose to inflict on him and…the
administration of the treatment cannot in general include treatment that
could not properly be given to a person of sound mind in her condition
according to the medical evidence”.

Non - Discrimination
• “The purpose of Article 5(1)(e) is to protect persons of unsound mind. This does
not apply where a person of unsound mind is receiving materially the same
medical treatment as a person of sound mind. Article 5(1)(e) is thus not
concerned with the treatment of the physical illness of a person of unsound mind.”
• The court reiterated that it is important that a patient of unsound mind with the
same physical needs as a person of sound mind is not treated differently as a result
of this – essentially a non-discrimination argument.
• If a patient is being treated differently as a result of being of unsound mind, then
Article 5 may be engaged, notwithstanding life saving context

P wasn’t “not free to leave”
• Court held that even if wrong that article 5 is generally not engaged in context of
life-saving treatment, the 2nd limb of “acid test” was not satisfied:
• “In the case of a patient in intensive care, the true cause of their not being
free to leave is their underlying illness, which was the reason why they were
taken into intensive care. The person may have been rendered unresponsive by
reason of treatment they have received, such as sedation, but, while that
treatment is an immediate cause, it is not the real cause. The real cause is their
illness, a matter for which (in the absent of special circumstances) the state is
not responsible. It is quite different in the case of living arrangements for a
person of unsound mind. If she is prevented from leaving her placement it is
because of steps taken to prevent her because of her mental disorder.”
• Whilst factually there was some dispute about whether Maria’s family were actually
asking if she could leave the CA (like the divisional court below) rejected the idea
that clinicians should be asking the hypothetical question of whether they would
stop P from leaving, or stop P’s family from taking her, if they were to attempt to
do so. Court questioned how often such a scenario would occur in practice.

Resources
• Of itself resources was not considered a basis for deciding that
there is in general no DoL in the context of life saving treatment,
but court found that there were sound public policy reasons for
avoiding the administrative and resource burdens that accompany
a finding of DoL in acute hospital settings:
• “Ultimately, this all detracts from the real priorities for ICU
staff; the investigation and treatment of critically unwell
patients, their recovery and rehabilitation, and the safe and
effective delivery of patient care”.

Conclusions
• A welcome result for Trusts and LAs? Reduced need for DoLS
authorisations in respect of those receiving life saving treatment?
• What is meant by “life-saving treatment”? How far removed does
the prospect of P’s life being in danger need to be before we can
say that DoL becomes a factor and can it apply outside ICU?
• What’s the rationale for not applying the CA’s reasoning to non-life
saving physical treatment if that treatment would be the same as
that which would be provided to a person with capacity to consent
to/refuse? What about hospice care, or other acute non-life
threatening settings?

Conclusions - continued
• What is the difference between “context” and “purpose”?
• Does the distinction between long term care settings (where DoL does
apply), and life saving medical treatment decisions (where generally it
won’t), rely on the purpose of P’s care – something which Lady Hale in CW
expressly said was irrelevant to determining whether P is DoL?
• CA said Maria “free to leave” thus no DoL in the context of ITU, isn’t the
court’s finding that Maria’s underlying physical condition was the real
reason why she could not leave capable of wider application? Could this
itself lead to discriminatory approaches based on who can and can’t
physically leave their care setting?

Conclusions - continued
• How does CA’s rationale that article 5 generally has no application
in the context of life saving medical treatment sit with CW that
“human rights are for everyone”?
• Is it important that CA probably felt justified in taking this
approach as ECtHR has never decided that article 5 applies to
medical treatment for physical disorder?
• SC may agree to hear appeal.
• NB Proposed amendment to Coroners and Justice Act 2009

Questions?
Emmett Maginn
E: emmett.maginn@brownejacobson.com
T: 0121 296 0676

Managing HRA health care
claims
Chris Stark

Agenda
• Brief overview of ECHR
• Article 2 cases
• Article 8 cases
• Limitation
• Damages and Costs

ECHR
• ECHR Articles generally relied upon in cases
relating to Healthcare
• Article 2 – Right to life
• Article 8 – Right to respect for private and family life

Wording of Article 2
1. Everyone’s right to life shall be protected by law
No one shall be deprived of his life intentionally save in the execution
of a sentence of a court following his conviction of a crime for which
this penalty is provided by law.
2. Deprivation of life shall not be regarded as inflicted in
contravention of this Article when it results from the use of force
which is no more than absolutely necessary:
(a) in defence of any person from unlawful violence;
(b) in order to effect a lawful arrest or to prevent the escape of a
person lawfully detained;
(c) in action lawfully taken for the purpose of quelling a riot or
insurrection.

Interpretation of Article 2
• 4 distinct but related duties:
– A duty not to take life, except in exceptional circumstances
– A duty to conduct a proper and open investigation into deaths
for which the state might be responsible
– A duty put in place legal and administrative systems that will,
to the greatest extent practicable, protect life
– An operational duty, in certain circumstances, to take positive
steps to prevent the death of an individual who is under threat
• Relevant case law mainly concerns the operational
duty

Article 2 Case law
Osman v UK (2000) 29 EHRR 245
• Foundation of the operational duty
• Boy injured and father shot dead by the boy’s school
teacher.
• “Article 2 of the Convention may also imply in
certain well-defined circumstances a positive
obligation on the authorities to take preventive
operational measures to protect an individual whose
life is at risk from the criminal acts of another
individual”

Article 2 Case law
• “… such an obligation must be interpreted in a way
which does not impose an impossible or
disproportionate burden on the authorities.”
• “… it must be established… that the authorities
knew or ought to have known at the time of the
existence of a real and immediate risk to the life of
an identified individual or individuals”
• “…and that they failed to take measures within the
scope of their powers which, judged reasonably,
might have been expected to avoid that risk.”
• Breach of duty not found on the facts

Article 2 Case law
Powell v UK (2000) 30 EHRR CD362
• Applicants’ son died in hospital as a result of clinical
negligence.
• Applicants argued, following Osman, Article 2 places
a positive duty on the State to do, “all that could be
reasonably expected of them to avoid a real and
immediate risk to life of which they have or ought
to have knowledge”
• Applicants argued that as death was caused by the
negligence of State agents, there was a breach of
the obligation to protect life.

Article 2 Case law
• Osman was not relevant.
• Powell held: ‘Where the State had made adequate
provision for securing high professional standards
among health professionals and the protection of
the lives of patients, matters such as error of
judgment or negligent co-ordination are not
sufficient to give rise to an operational duty under
Article 2.’

Article 2 Case law
Savage v South Essex Partnership NHS Foundation
Trust [2009] 1 AC 681
• Detained MH patient absconded and committed
suicide
• Daughter brought action
• Judge – Claimant would have to establish gross
negligence. Summary judgment.
• Court of Appeal – allowed appeal.

Article 2 Case law
• Supreme Court in Savage held that Osman applied:
‘Where hospital staff knew or ought to have known
that a detained MH patient presented a real and
immediate risk of suicide, Art 2 imposed an
operational duty to do all that could reasonably be
expected of them to prevent the patient committing
suicide.’

Article 2 Case law
• Two lines of authorities:
– Powell line of cases – where a (non-psychiatric)
patient’s life is at real and immediate risk, even if
due to negligence, the operational duty does not
apply.
– Savage line of cases – where the patient is a
detained psychiatric patient and the Trust knew or
ought to have known that there was a real and
immediate risk to life, the operational duty applies.

Article 2 Case law
Rabone v Pennine Care NHS Foundation Trust [2012]
UKSC Civ 698
• Miss Rabone was admitted to hospital following a
suicide attempt on 11.04.05; informal admission
• Assessed as a high risk of further suicide attempt
• It was noted that if she attempted to leave she
should be assessed for detention
• On 19.04.05 home leave allowed (despite mother’s
concerns); 20.04.05 she hung herself

Article 2 Case law
UKSC Civ 698
• Parents brought CN claim and claim under Art 2.
• Settled CN claim £7,500 – funeral expenses and PSLA
damages
• Argued operational duty owed (Savage)

Article 2 Case law
UKSC Civ 698
Key issue: Did Powell or Savage apply?
Held:
• Trust assumed responsibility - Under its control
• Although not detained, if she had insisted on
leaving, Trust could and should have detained
• Difference between her situation and detained
patient – one of form not substance
• Operational duty WAS owed

Article 2 Case law
UKSC Civ 698
• Real and immediate risk?
• Risk of suicide was 5 – 10% = “real”
• “Immediate” = present and continuing
• Simple to avoid risk by refusing leave
• Operational duty was breached

Article 2 Case law
UKSC Civ 698
• Another issue – did parents lose “victim” status by
having settled the CN claim?
• Accepted lose victim status if:
• Public authority provided adequate redress; and
• Acknowledged breach of a Convention right
• Acceptance of sum in settlement of all claims
generally means no longer able to claim to be a
victim- Caraher v UK (2000) 29 EHRR CD119

Article 2 Case law
UKSC Civ 698
• Settlement in Rabone did not include any amount for
bereavement (adult child)
• No adequate redress
• Admission of a breach of the common law duty =
acknowledgement of breach of convention right (in
this case)
• Parents did not lose victim status by settling CN case

Expert Evidence in Rabone-type
cases
Psychiatrist will need to comment on:
• Whether there was a “real” risk of suicide
-“substantial or significant risk”
• Whether there was an “immediate” risk of suicide
-“present and continuing”
• Whether the treating psychiatrist knew or should
have known of any such risk
• Whether the steps that were taken (if any) to avoid
the risk of suicide were reasonable

Wording of Article 8
• Right to respect for private and family life
1. Everyone has the right to respect for his private and
family life, his home and his correspondence.
2. There shall be no interference by a public authority with
the exercise of this right except such as is in accordance with
the law and is necessary in a democratic society in the
interests of national security, public safety or the economic
wellbeing of the country, for the prevention of disorder or
crime, for the protection of health or morals, or for the
protection of the rights and freedoms of others.

Article 8 Case law
McDonald v UK (2015) 60 EHRR 1
• Applicant had incapacitating stroke 1999
• She needed to urinate several times per night, but
was unable to access a toilet or commode without
assistance.
• Assessed by the local authority as requiring carers at
night to assist with toileting.
• In October 2008 (without a formal re-assessment)
decision was taken to reduce care – use incontinence
pads at night

Article 8 Case law
• Informed of decision Nov 2008
• Sought JR – unreasonably and unlawfully failed to
meet assessed needs and would cause indignity –
interference with respect for private life (Art 8)
• Holding compromise (5 nights/4 nights)
• March 2009 permission for JR refused

Article 8 Case law
• Re-assessment of needs Nov 2009 – use of
incontinence pads most appropriate solution
• Ct of Appeal – no breach of Art 8
• Supreme Ct – no breach of Art 8

Article 8 Case law
• During the period Nov 2008 (date of reduction in
care) to Nov 2009 (the date of the first care plan
review) the local authority had failed to provide
care in accordance with its own assessment of her
needs – reduction not “in accordance with the law” –
breach of Art 8
• After the care plan review – no breach

Article 8 Case law
• After Nov 2009 the interference with the applicant’s
right to privacy:
 Was in accordance with the law
 Pursued a legitimate aim (economic welfare of the
State and the interests of other care-users)
 Was necessary in a democratic society
 Was proportionate to the legitimate aim
• Art 8 para (2)

Limitation
• Section 7 (5) HRA 1998 Limitation is
(a) 1 year
(b) Such longer period as the Court considers
equitable in all the circumstances
• Section 33(3) LA 1980 may provide some guidance
as to factors to consider
• Rabone – 4 months late, extension granted
• AP v Tameside Metropolitan Borough Council [2017]

Damages and Costs
Savage v South Essex
• Detained MH patient – suicide
• Range for non-pecuniary loss: €5,000 to €60,000
• £10,000 damages awarded
• Equaled bereavement award at the time

Damages and Costs
Rabone v Pennine Care
• Voluntary MH patient – suicide
• Lord Dyson – real force in the submission that £5,000
per parent is too low, but no appeal on this point
• £10,000 damages (£5,000 each) awarded
• Equaled bereavement award at the time

Damages and Costs
McDonald v UK
• Art 8 rights breached for 12m
- €1,000 damages
- £9,500 costs
- £9,822 was claimed in costs
- Entitled to costs and expenses only insofar as these
have been actually and necessarily incurred and are
reasonable as to quantum

Comment
• Very limited circumstances in which a HRA-based
health care claim will be successful.
• Art 2 – essentially limited to MH patients who are
either detained or would be detained
• Art 8 – in general, unlikely to be successful (rarely
pursued as stand-alone)
• Damages for a breach of an Art 2 operational duty
(Savage / Rabone) likely to be akin to a
bereavement award – currently £12,980

Comment
• If settling a CN case where there could possibly be
a HRA claim in addition – seek to settle:
– “all claims on the Claimant’s own behalf and on
behalf of the estate and dependents of the
deceased”
• If a claim is brought regarding a reduction in care
(McDonald) – care provider should ensure that a
formal re-assessment has been carried out
(preferably before the reduction)

Comment
• Almost 5 years since judgment handed down in Rabone
– no significant development in the law since then
• Many speculative case still being brought – they should
be defended
• NHSLA taking a case by case approach

Questions?
Chris Stark
E: chris.stark@brownejacobson.com
T: 0115 934 2059

All information correct at time of production.
The information and opinions expressed within this document are
no substitute for full legal advice. It is for guidance only and
illustrates the law as at the published date. If in doubt, please
telephone us on 0370 270 6000.
© Browne Jacobson LLP 2017 – The information contained within
this document is and shall remain the property of Browne
Jacobson. This document may not be reproduced without the prior
consent of Browne Jacobson.

Litigation and inquest forum, February 2017, Birmingham

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