Simon Elliman comments on a recent report about the lack of investigation into deaths at one of the country’s largest mental health NHS Trusts, and considers the wider implications of the findings about the failures identified in the report.
Just before Christmas I read a report of an investigation commissioned by NHS England, looking at deaths in the Southern Health NHS Foundation Trust between 2011 and 2015. The Trust is a large mental health Trust. The results of the investigation are very concerning, suggesting that the likelihood of an investigation into an unexpected death taking place varies widely, depending on the type of patient; by way of example, in patients with a learning disability, only 1% of unexpected deaths were investigated.
Over the entire period, 10,306 people died under the care of the Trust. Of those, 1,454 were unexpected deaths (about 14%). Of these, 272 deaths were treated as critical incidents, but only 195 (13%) were treated as a ‘Serious Incident Requiring Investigation’ (SIRI). Even when investigations were carried out, the NHS England report found that they were of a poor standard, and often extremely late. There were repeated criticisms from local coroners about the timeliness and usefulness, or otherwise, of reports provided by the Trust for inquests.
The report’s key findings were as follows:
The report had been ordered in 2013 after Connor Sparrowhawk, an 18 year old who had epilepsy, drowned in a bath following a seizure while under the care of the trust. The report seems to suggest that there is, or was, a culture in the Trust of regarding the lives of those with learning disabilities, for example, as somehow less important than those of others.
The report comes out at a time when the Ministry of Health is consulting on a system of fixed fees for clinical negligence litigation, which is likely to result in lower ‘value’ cases being taken on less and less by solicitors – value referring to the amount of financial compensation that is likely to be paid if a death occurs as a result of negligent treatment.
Cases concerning the deaths of those with learning disabilities would usually fall into that category; bereavement damages are only awarded to spouses or long term partners when someone dies, or to the parents of a child under 18, and it will often be the case that a person with learning difficulties will not be married or in a long term relationship. So when such a patient dies, any claim brought may only be for a small sum of general damages plus funeral expenses.
In an unfortunate juxtaposition of events, the Ministry of Justice is simultaneously consulting on raising the small claims limit for all personal injury claims to £5,000, depriving people with claims worth less than £5,000 of the right to legal representation because they could not recover the costs of doing so if the case was successful. Again, it is highly likely that many claims in respect of the death of an adult with learning disabilities will fall into this category.
We act for a number of families following the death of a loved one to investigate whether the death occurred as a result of negligence, often because they feel it is the only way of achieving answers as to how their loved one died, in addition to financial compensation for their loss. It seems likely that in the near future not only will the NHS be failing to investigate such deaths effectively, but the relatives of the deceased will be effectively deprived of any legal remedy as well.
The Government needs to consider very carefully whether it is breaching the human rights of disabled people in its proposals.