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Systemic change is needed to ensure our health services learn lessons from the deaths of vulnerable patients in their care

Posted on 12th February 2016

The shocking failure of Southern Healthcare NHS Foundation Trust to investigate the deaths of over a thousand patients with learning disabilities or mental health issues made headlines at the end of last year, with both the Department of Health and NHS England promising reviews and major changes to tackle the issue. At a time of drastic cuts to NHS services, the physical healthcare of these vulnerable patients often falls short and the proper investigation of preventable deaths is essential, both for the families of the bereaved and to ensure that lessons are learned by our health services.

On 17th December 2015, NHS England published the “Independent review of deaths of people with a Learning Disability or Mental Health problems in contact with Southern Health NHS Foundation Trust April 2011 – March 2015”.

The trust is one of the country’s largest mental health trusts, covering Hampshire, Dorset, Wiltshire, Oxfordshire and Buckinghamshire and serves around 45,000 mental health and learning disability services users each year.

The publication of this report followed the preventable death of Connor Sparrowhawk in July 2011. Connor, who had learning disabilities and autism, drowned in the bath whilst on a unit in Oxford which was managed by Southern Health NHS Foundation Trust. Initially, the trust attributed Connor’s death to ‘natural causes’ but later admitted that it could have been prevented. The Inquest into Connor’s death found that very serious failings and neglect contributed to his death.

The report reviews the deaths of those who died between April 2011 and March 2015 and who had been availing of the trust’s mental health and/or learning disability services, either at the time of their death or in the preceding 12 months. During that period, it found that 10,306 people had died. Most of these deaths were not unexpected but 1,454 were. Of these deaths, less than 15% were treated by the trust as a serious incident requiring investigation.

The report found that where investigations were carried out, they were often of a poor quality and very late. There was a failure to act on repeated criticisms from coroners about the delays in preparing reports for inquests and the actual quality of those reports.

The report also found that shockingly 64% of investigations did not involve family members. Thus family members were left in the dark and unable to offer insight and knowledge about their loved one in the period leading up to their death.

Ultimately, the report concluded that the trust could not demonstrate a comprehensive systematic approach to learning from the deaths of those in its care and it failed to avail of opportunities to learn and improve. There was a lack of leadership, focus and sufficient time spent on carefully preparing reports and investigating deaths.

The failures on the part of Southern Healthcare NHS Foundation Trust that have been brought to light by this report make for deeply upsetting reading. Those with mental health problems and learning disabilities are often extremely vulnerable and marginalised. They can face social stigma and discrimination in daily life. The findings of this report indicates that this discrimination continues following death. The unexpected deaths of these vulnerable service users were not treated with the importance and consideration that they should have been and they were not deemed to be meritorious of a full and frank investigation. We only have to look at the case of Connor Sparrowhawk to see that the trust sought to brush its failings aside by stating that the death was a result of ‘natural causes’. This transpired not to be the case.

It is the duty of the state to ensure that the most vulnerable members of society receive equal treatment in all aspects of life, including access to healthcare. Where there are concerns about the treatment that a vulnerable person received prior to their death, it is of fundamental importance that there is openness, transparency and a willingness to work with families on the part of the NHS.

Where deaths of those with learning disabilities and mental health problems are unexpected, it is of crucial importance that they are properly investigated. The failure to do so means that lessons will not be learned, systemic failings will continue and the same mistakes will repeatedly be made. This will result in a failure to prevent more avoidable deaths of vulnerable service users. It is not right that vulnerable and marginalised individuals should suffer unequal treatment or access to healthcare and then go unrepresented, unheard and forgotten despite failings in the care they have received.

Following an unnatural or unexpected death of a service user when they are detained under the Mental Health Act 1983, are informal patients admitted to hospital or are community patients living independently or semi-independently in the community, there will often be an Inquest looking at how an individual came by their death. The investigation into an unnatural or unexpected death has a crucial role to play in the Inquest process, outlining what has happened and whether lessons can be learned.

As legal practitioners who act for bereaved family members, we would ideally like to see independent investigations carried out following unexpected deaths of patients or service users under the care of the NHS. Unfortunately there is no such requirement and the duty to investigate an unexpected death rests with the NHS trust in question. These investigations have a crucial role to play in the Inquest process, outlining what has happened and whether lessons can be learnt. Where the trust’s report is late or of poor quality, it adversely affects the Inquest process. It makes it more difficult to get to the bottom of how the deceased came to die and this in turn negatively impacts on the ability of families to achieve closure and on the Coroner’s obligation to make prevention of future death reports where necessary.

Thankfully, NHS England has accepted the recommendations made in the report. Further, in response to the report, Jeremy Hunt made a written statement in which he outlined the steps that he would be taking to address the local and systemic issues raised in the report. He announced that the Care Quality Commission (CQC) would be carrying out a focused inspection of the trust, looking in particular at its approach to investigating deaths. The CQC will also be looking at the trust’s progress in implementing the action plan required by Monitor (the sector regulator for health services in England) and undertaking a review into the investigation of deaths in all types of NHS trusts (acute, mental health and community trusts) in different parts of the country. Part of this review will comprise whether opportunities for prevention of death have been missed, for example by late diagnosis of physical health problems. He also reported that he would be taking measures to tackle the problem of avoidable mortality across providers.

The current situation for those suffering from mental health problems and learning disabilities is precarious at best. Drastic cuts to NHS services have meant that service users often do not receive optimal care and treatment and new NHS figures show that the number of deaths annually among mental health patients in England has risen 21% over the last three years from 1,412 to 1,713. Our experiences of representing families at the deaths of people detained in psychiatric detention is that often the physical healthcare of patients can be ignored and in some cases we have seen, there are shocking failings in responses to emergency situations.

It is of great importance that deaths of the most vulnerable members of our society are properly investigated, even if there is only a whisper of concern about the care they have received. The overriding aim in doing so is to reduce the occurrence of these deaths where they could have been prevented. The state has a duty to protect those in its care and uphold their dignity in death where it has failed them. We can only hope that meaningful changes will be made at Southern Healthcare NHS Foundation Trust and elsewhere across the NHS, with the aim of ensuring that appropriate investigations are carried out and lessons are learned from the deaths of those who pass while under its care.

By Brid Doherty, Civil Liberties Team.

Our Actions Civil Liberties & Human Rights Solicitors are backed by nearly four decades of experience and have a strong track record of achieving favourable client outcomes. For expert legal advice use our contact form or call us on 0808 250 6017 today.