REYNOLDS V UNITED KINGDOM 13TH MARCH 2012 APPLICATION NO. 2694/08
FACTS:-
The Applicant’s son was diagnosed with schizophrenia in 1998 and he was treated by the NHS. He was taken to hospital after saying that he was hearing voices and that he wanted to kill himself. There he was assessed as a low suicide risk. Later on whilst at the hospital, he threw himself from a sixth floor window and was killed on the 16th March 2005. At an inquest, the coroner recorded an open verdict. The Applicant issued a claim under Section 7 of the Human Rights Act 1998 against the hospital claiming that it had failed to adequately discharge its duties under Articles 2, 3 and 8 of the European Convention. The Defendants argued that the Applicant had no cause of action and that the case should be struck out after the decision of the High Court in Savage v South Essex Partnership NHS Foundation Trust [2006] EWHC 3562, which said that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The county court in the Applicant’s case refused to adjourn her hearing to await any appeals in the case of Savage and struck out her case. The Applicant had her legal aid withdrawn in August 2007. She made an application to the European Court of Human Rights but died afterwards leaving her daughter to make the application.
JUDGEMENT:-
The European Court of Human Rights said that section 6 of the Human Rights Act 1998 made it unlawful for a public authority to act incompatibly with Convention rights, unless it was not possible to act differently by virtue of primary legislation. Section 8(1) of the Coroners Act 1988 required a Coroner to hold an inquest in circumstances where there were grounds to suspect that a person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause was unknown. In the cases of R (Middleton) v West Somerset Coroner [2004] 2 AC 182 and R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796 the House of Lords decided that the limited scope of inquests was incompatible with the procedural requirements of Article 2 and they extended the inquest regime to allow the reporting of the jury’s factual conclusions and the recording of acts or omissions. However expressions of civil liability were to be avoided.
A person who suffered injury, physical or psychiatric in consequence of another’s negligence could bring an action for damages for that injury. Upset and injury to feelings resulting from negligence did not entitle a Claimant to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate. The two relevant statutes were the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The European Court considered the following cases:-
In the case of Savage the House of Lords had said that there might be a violation of Article 2 if a hospital did not employ competent staff, who were trained to a high standard, and did not adopt systems of work which would protect the lives of patients. An individual mistake by an individual doctor would not entail a breach of Article 2 although it might well be negligence. Article 2 also imposed operational obligations as distinct from and addition to the more general obligations. If members of staff know or ought to know that a particular patient is a suicide risk, then Article 2 requires them to do all that could reasonably be expected to prevent the patient from committing suicide. Failure to do so would expose them to a negligence charge and also a breach of Article 2.
In Rabone the House of Lords said that the distinction between a detained and a non detained patient was more apparent than real. Consequently the NHS Trust in that case owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide. Damages of £5,000 were awarded to each bereaved parent under Article 2 of the Convention.
The Applicant complained that she had no effective domestic mechanism whereby issues of civil liability could be determined in respect of the alleged negligent care of her deceased son and though which she could have obtained compensation for the non pecuniary loss sustained by her including grief, loss and distress. This was a breach of Article 2 which stated:-
“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.”
The Applicant argued that her action under the Human Rights Act 1998 was struck out without any consideration of the evidence or the facts. There was no viable claim for dependency or for any claim on the part of the son, which might form part of his estate. The non-pecuniary loss was limited to bereavement under the 1976 Act and that would be insufficient to enable the Applicant to enforce the substance of a complaint. There was no other mechanism that could have established civil liability and awarded damages for non-pecuniary loss for bereavement.
The European Court considered the facts. They felt that it was arguable that an operational duty arose to take reasonable steps to protect the Applicant’s son from a real and immediate risk of suicide and that this duty was not fulfilled. It was common ground that an inquest could not examine the issue of civil liability and the internal enquiry had not been independent as it had been held by the National Health Service, which was responsible for the Defendants.
The Applicant’s claim had been rejected by the county court, not as failing to disclose any arguable negligence but rather as not disclosing a right of action under the Human Rights Act 1998 despite the authority contained in the cases of Powell, Takoushis and later the House of Lords decision in Savage. No purpose would have been served by the Applicant lodging an appeal immediately thereafter.
The Applicant would have been unable to claim damages under the 1976 Act on her own behalf. Any claim brought by her son, in relation to injuries inflicted on himself would have been negligible. The most that could have been recovered would have been funeral expenses. Therefore the Applicant had no prospect of obtaining adequate compensation for the non pecuniary damage suffered by her as a result of the death of her child. That lack of compensation impacted on her ability to obtain legal aid, and it was conceded that she did not have the means to afford legal representation. The court would conclude that the present applicant did not have available ot her prior to the introduction of her application to the court, civil proceedings to establish any liability and compensation due as regards the non pecuniary damages suffered by her on her son’s death.
Therefore there was a violation of Article 13 in conjunction with article 2 of the Convention.
Euro 7,000 would be awarded to her by way of damages together with costs in the sum of Euro 8,000.
FACTS:-
The Applicant’s son was diagnosed with schizophrenia in 1998 and he was treated by the NHS. He was taken to hospital after saying that he was hearing voices and that he wanted to kill himself. There he was assessed as a low suicide risk. Later on whilst at the hospital, he threw himself from a sixth floor window and was killed on the 16th March 2005. At an inquest, the coroner recorded an open verdict. The Applicant issued a claim under Section 7 of the Human Rights Act 1998 against the hospital claiming that it had failed to adequately discharge its duties under Articles 2, 3 and 8 of the European Convention. The Defendants argued that the Applicant had no cause of action and that the case should be struck out after the decision of the High Court in Savage v South Essex Partnership NHS Foundation Trust [2006] EWHC 3562, which said that one had to establish gross negligence of a kind sufficient to sustain a charge of manslaughter in order to establish a breach of Article 2 of the Convention. The county court in the Applicant’s case refused to adjourn her hearing to await any appeals in the case of Savage and struck out her case. The Applicant had her legal aid withdrawn in August 2007. She made an application to the European Court of Human Rights but died afterwards leaving her daughter to make the application.
JUDGEMENT:-
The European Court of Human Rights said that section 6 of the Human Rights Act 1998 made it unlawful for a public authority to act incompatibly with Convention rights, unless it was not possible to act differently by virtue of primary legislation. Section 8(1) of the Coroners Act 1988 required a Coroner to hold an inquest in circumstances where there were grounds to suspect that a person (a) has died a violent or an unnatural death or (b) has died a sudden death of which the cause was unknown. In the cases of R (Middleton) v West Somerset Coroner [2004] 2 AC 182 and R (Sacker) v West Yorkshire Coroner [2004] 1 WLR 796 the House of Lords decided that the limited scope of inquests was incompatible with the procedural requirements of Article 2 and they extended the inquest regime to allow the reporting of the jury’s factual conclusions and the recording of acts or omissions. However expressions of civil liability were to be avoided.
A person who suffered injury, physical or psychiatric in consequence of another’s negligence could bring an action for damages for that injury. Upset and injury to feelings resulting from negligence did not entitle a Claimant to damages. Any personal injury action maintainable by a living person survives for the benefit of his estate. The two relevant statutes were the Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934.
The European Court considered the following cases:-
- R (Takoushis) v Inner North London Coronor and Another [2006] 1 WLR 46
- R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931
- Powell v United Kingdom (dec.) 45305/99 ECHR 2000-V
- Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74
- Osman v United Kingdom 28th October 1998 Reports of Judgments and Decision 1998 VIII
- Rabone v Pennine Care NHS Trust [2012] UKSC 2
In the case of Savage the House of Lords had said that there might be a violation of Article 2 if a hospital did not employ competent staff, who were trained to a high standard, and did not adopt systems of work which would protect the lives of patients. An individual mistake by an individual doctor would not entail a breach of Article 2 although it might well be negligence. Article 2 also imposed operational obligations as distinct from and addition to the more general obligations. If members of staff know or ought to know that a particular patient is a suicide risk, then Article 2 requires them to do all that could reasonably be expected to prevent the patient from committing suicide. Failure to do so would expose them to a negligence charge and also a breach of Article 2.
In Rabone the House of Lords said that the distinction between a detained and a non detained patient was more apparent than real. Consequently the NHS Trust in that case owed to the deceased patient an operational duty to take reasonable steps to protect her from a real and immediate risk of suicide. Damages of £5,000 were awarded to each bereaved parent under Article 2 of the Convention.
The Applicant complained that she had no effective domestic mechanism whereby issues of civil liability could be determined in respect of the alleged negligent care of her deceased son and though which she could have obtained compensation for the non pecuniary loss sustained by her including grief, loss and distress. This was a breach of Article 2 which stated:-
“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.”
The Applicant argued that her action under the Human Rights Act 1998 was struck out without any consideration of the evidence or the facts. There was no viable claim for dependency or for any claim on the part of the son, which might form part of his estate. The non-pecuniary loss was limited to bereavement under the 1976 Act and that would be insufficient to enable the Applicant to enforce the substance of a complaint. There was no other mechanism that could have established civil liability and awarded damages for non-pecuniary loss for bereavement.
The European Court considered the facts. They felt that it was arguable that an operational duty arose to take reasonable steps to protect the Applicant’s son from a real and immediate risk of suicide and that this duty was not fulfilled. It was common ground that an inquest could not examine the issue of civil liability and the internal enquiry had not been independent as it had been held by the National Health Service, which was responsible for the Defendants.
The Applicant’s claim had been rejected by the county court, not as failing to disclose any arguable negligence but rather as not disclosing a right of action under the Human Rights Act 1998 despite the authority contained in the cases of Powell, Takoushis and later the House of Lords decision in Savage. No purpose would have been served by the Applicant lodging an appeal immediately thereafter.
The Applicant would have been unable to claim damages under the 1976 Act on her own behalf. Any claim brought by her son, in relation to injuries inflicted on himself would have been negligible. The most that could have been recovered would have been funeral expenses. Therefore the Applicant had no prospect of obtaining adequate compensation for the non pecuniary damage suffered by her as a result of the death of her child. That lack of compensation impacted on her ability to obtain legal aid, and it was conceded that she did not have the means to afford legal representation. The court would conclude that the present applicant did not have available ot her prior to the introduction of her application to the court, civil proceedings to establish any liability and compensation due as regards the non pecuniary damages suffered by her on her son’s death.
Therefore there was a violation of Article 13 in conjunction with article 2 of the Convention.
Euro 7,000 would be awarded to her by way of damages together with costs in the sum of Euro 8,000.