SAVAGE V SOUTH ESSEX PARTNERSHIP NHS FOUNDATION TRUST [2008] UKHL 74
FACTS:-
Mrs Carol Savage was a paranoid schizophrenic who in July 2004 absconded from Runwell Hospital, where she was being treated as a detained patient in an open acute psychiatric hospital. Tragically she committed suicide. Her adult daughter, Anna Savage brought proceedings against the Defendant, alleging that the South Essex Partnership NHS Foundation Trust violated her Article 2 Convention right to life.
The Defendant successfully applied at first instance for a question of law to be determined as a preliminary issue. That question was the proper test for establishing a breach of Article 2 of the Convention. The Defendant argued that the facts of the claim did not satisfy that test and the judge at first instance agreed. The Court of Appeal allowed the Claimant’s appeal and ordered a trial. The Defendant now appealed to the House of Lords.
HELD:-
Lord Scott said that there were two remedies under ordinary domestic law. There was a common law duty of care on the hospital, which could have led to an action under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. However Mr Savage, the husband of the deceased did not wish to institute that action. The Claimant in this case lacked locus standi to bring that action so she brought an action under section 7 of the Human Rights Act 1998 and in particular Article 2(1) of the European Convention on Human Rights which stated:-
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally….”
It was alleged that Article 2(1) required the hospital to take adequate steps to protect Mrs Savage from the risk that she would abscond and come to serious harm or harm herself.
However the problem here was that the victim was not Mrs Savage. Lord Scott said that the 1934 and 1976 Acts provided a remedy to a family member (if they came within a particular class), but he did not see it as any part of the function of Article 2(1) to add to that class. He doubted very much the legitimacy of the prosecution of this action.
However this was not the issue in this appeal and the issue of whether Mrs Savage’s daughter had not been raised. The real issue was to define the proper test in law in order to establish a breach of Article 2 of the Convention on the basis of the facts set out in the Particulars of Claim. There were two authorities, Keenan v United Kingdom (2001) 33 EHRR 38 and Powell v United Kingdom (2000) 30 EHRR CD362.
Powell was authority for the proposition that, in the context of care of patients in hospital, something more will be required to establish a breach of the Article 2(1) positive obligation to protect life, than a simple failure of the hospital to meet the standard of care. Keenan showed that where individuals were in custody and posed a real and immediate suicide risk, the Article 2(1) obligation required the authorities to take reasonable steps to avert that risk. However the State had no general obligation, either at common law or under Article 2(1) to place obstacles in the way of persons desirous of taking their own life. Children and mentally disordered persons might need protection, but adults did not. This was different with persons in police custody or in prison. However a hospital might be entitled, and perhaps bound to allow Mrs Savage a degree of unsupervised freedom that did carry with it some risk that she might abscond.
Therefore on the issue of whether there was a real and immediate risk of Mrs Savage committing suicide, the hurdle was a stiff one particularly in the absence of evidence of any previous suicide attempt. The issues of whether reasonable steps were taken and the locus standi should be decided at trial. Lord Scott would dismiss the appeal of the Defendant, the NHS Trust.
Lord Rodger said that the appeal must fail. Article 2 required a State to have in place a structure of laws which would help to protect life, but as was recognised in the case of Osman v United Kingdom (2000) 29 EHRR 245 the State’s duty went further and Article 2 implied a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual. The operational obligation would be triggered if there were a real and immediate risk to the life of particular individuals.
The European Court had recognised that in certain circumstances, the State’s duty under Article 2 did include a duty to take steps to prevent people from killing themselves, as in Keenan (see above). Persons in custody were in a vulnerable position, and the risk of suicide was known to be higher among prisoners than among the general population. A similar duty arose when the State conscripted young people into its armed forces.
In relation to hospital patients, it had long been recognised that a State’s positive obligations under Article 2 to protect life included a requirement for hospitals to have regulations for the protection of their patients’ lives. In relation to patients suffering from mental illness, a hospital was under a duty to take precautions to avoid the possibility of injury, whether self inflicted or otherwise occurring to those patients. Mrs Savage was a detained patient.
If there was negligence on the part of the Defendant, they might be liable in damages but that did not mean that there was a violation of Article 2 if they performed the general obligations which the Article imposed on them. Articles 2 and 3 had to provide protection against assaults on patients. In the case of Powell the European Court said that they would not allow an operational duty to be erected on the basis of the approach in the case of Osman. However that did not mean that the European Court would also have ruled out an operational duty on the part of those authorities, in well defined circumstances, to prevent a patient from committing suicide. However the case of Powell was a very different one from the present case, and consequently provided no guidance.
The absence of civil, criminal and disciplinary mechanisms had been held to be a violation of Article 2 in Dodov v Bulgaria (Application No. 59548/00 17 January 2008. In that case, the Applicant’s mother suffered from Alzheimers and had disappeared from a nursing home. She needed constant supervision but was left along in the yard of the home. Her son complained that her life had been put at risk through the negligence of the nursing home staff, that the ensuing investigation had not resulted in any criminal or disciplinary sanctions, that he had not yet been able to obtain compensation in civil proceedings and also that the police had not done as much as they should have done to search for his mother.
In Lord Rodger’s view, it was abundantly clear that where there was a real and immediate risk of a patient committing suicide, Article 2 imposed an operational obligation on the medical authorities to do all that could be reasonably expected of them to prevent it.
In summary, health authorities were under an over arching obligation to protect the lives of patients in their hospitals in terms of Article 2. They might also be required to fulfil a number of complementary obligations.
If there was a breach of these obligations, then there was a breach of Article 2. However a doctor might still be negligent and the patient might die. In that situation there would be no violation of Article 2. However the doctor would be personally liable in damages for the death and the health authority would be vicariously liable. That was the situation envisaged by Powell.
The same approach applied to a mental hospital.
Finally Article 2 imposed a further “operational” obligation on health authorities and their hospital staff. The operational obligation arose only if members of staff knew or ought to have known that that a particular patient represented a “real and immediate” risk of committing suicide. That was comparable to the position in Osman and Keenan. If they failed to discharge this obligation, then not only would the health authorities be liable in negligence, but they would also be in violation of Article 2.
Lord Rodger would dismiss the appeal and allow the trial judge to apply the law to the facts.
Lord Walker agreed with Lord Rodger and Baroness Hale.
Baroness Hale said that the principal component of Article 2 was the duty to have an effective system of criminal law to deter people from taking other people’s lives and to punish those who committed such crimes. However the duty went further. The case of Osman said that the system had to be backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Osman also said that Article 2 might imply in certain well defined circumstances a positive obligation on the authorities to take preventive operation measures to protect an individual whose life was at risk from the criminal acts of another individual. The risk had to be “real and immediate.”
In the case of Van Colle v Chief Constable of the Herfordshire Police [2008] UKHL 50 the House of Lords could not conclude from the information available to the police that there was a real and immediate risk to the life of the deceased.
The case of Keenan concerned a mentally ill young man who hanged himself whist serving a sentence of imprisonment. The European Court decided that whilst the risk was real, on the facts of the case it was not immediate.
There was then the unreported case of Killinc v Turkey App No 40145/98 where a military conscript had killed himself with his own gun. The European Court concluded that the authorities had not done all that they should have, to prevent the risk. The existing regulatory framework had failed, because the military medical authorities had not properly assessed and followed up his mental state. There was no regulatory framework governing the supervision of conscipts who suffered from mental illness, and that had caused the commander to put the deceased on guard duty and give him a gun, even though it was not clear that he was fit to do it.
The principle in Osman had been extended to the health care given to prisoners and other detainees, in Slimani v France (2006) 43 EHRR 49 where the European Court said that as a general rule, the mere fact that an individual died in suspicious circumstances whilst in custody, should raise an issue as to whether the State had complied with its obligations to protect that person’s right to life.
Counsel for the Claimant argued that the Osman principle should extend to persons who are compulsorily detained in hospital. Counsel for the Defendant trust argued that the Osman principle had no such application in this area.
In the case of Powell, the Applicants’ son had died of Addison’s disease. The parents believed that the doctors could have save his life and they brought an action against the health authority, which was settled. However they also brought an application to the European Court on the grounds that the doctors had falsified the records and also that there was a breach of the State’s obligation to protect life, since their son’s death was caused by agents of the State.
The European Court had said in the case of Powell that where the Contracting State had made adequate provision for securing high professional standards among health care professionals and the protection of the lives of patients, it could not accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient were sufficient of themselves to call a Contracting State to account from the standpoint of the positive obligations under Article 2. In that case (Powell) the parents of the deceased child had not pursued their NHS complaints against the doctors or their negligence claim against the health authority, and so they could not claim to be victims.
Thus ordinary medical negligence, which resulted in the death of the patient, was not in itself a breach of the state’s obligations under Article 2. The State’s obligations were discharged by having appropriate systems in place and effective investigatory machinery.
That had also been the issue in the case of Dodov (see above). The European Court had found that the Bulgarian legal system, faced with an arguable case of negligent acts endangering human life, had failed to provide an adequate and timely response, consonant with the State’s procedural obligations under Article 2. However the European Court was not convinced that the police reaction was inadequate.
The positive protective obligation under Article 2 was generally an obligation to have proper systems in place. However in some circumstances, an operational duty to protect a particularly individual was triggered. That operational duty was not triggered by ordinary medical negligence alone. Baroness Hale had little doubt that it was right to apply the approach adopted in Osman and Keenan to patients in hospital under the Mental Health Act, as it applied to persons detained under other powers in other institutions, particularly given the similarity of the powers that were exercised by the authorities. Human rights were a particular issue where the situation involved any kind of detention.
The trigger was the real and immediate risk to life, about which the authorities knew or ought to have known at the time. That had rarely been shown as was shown in Younger v United Kingdom (2003) 36 EHRR CD 252. If the duty was triggered then the authorities were bound to do all that reasonably could have been expected of them to prevent that risk. The court was entitled to take into account a number of factors, including the problem of resources.
Baroness Hale would dismiss the appeal of the Defendant and allow the matter to go to trial.
Lord Neuberger agreed with Lord Rodger and Baroness Hale.
FACTS:-
Mrs Carol Savage was a paranoid schizophrenic who in July 2004 absconded from Runwell Hospital, where she was being treated as a detained patient in an open acute psychiatric hospital. Tragically she committed suicide. Her adult daughter, Anna Savage brought proceedings against the Defendant, alleging that the South Essex Partnership NHS Foundation Trust violated her Article 2 Convention right to life.
The Defendant successfully applied at first instance for a question of law to be determined as a preliminary issue. That question was the proper test for establishing a breach of Article 2 of the Convention. The Defendant argued that the facts of the claim did not satisfy that test and the judge at first instance agreed. The Court of Appeal allowed the Claimant’s appeal and ordered a trial. The Defendant now appealed to the House of Lords.
HELD:-
Lord Scott said that there were two remedies under ordinary domestic law. There was a common law duty of care on the hospital, which could have led to an action under the Law Reform (Miscellaneous Provisions) Act 1934 and the Fatal Accidents Act 1976. However Mr Savage, the husband of the deceased did not wish to institute that action. The Claimant in this case lacked locus standi to bring that action so she brought an action under section 7 of the Human Rights Act 1998 and in particular Article 2(1) of the European Convention on Human Rights which stated:-
“Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally….”
It was alleged that Article 2(1) required the hospital to take adequate steps to protect Mrs Savage from the risk that she would abscond and come to serious harm or harm herself.
However the problem here was that the victim was not Mrs Savage. Lord Scott said that the 1934 and 1976 Acts provided a remedy to a family member (if they came within a particular class), but he did not see it as any part of the function of Article 2(1) to add to that class. He doubted very much the legitimacy of the prosecution of this action.
However this was not the issue in this appeal and the issue of whether Mrs Savage’s daughter had not been raised. The real issue was to define the proper test in law in order to establish a breach of Article 2 of the Convention on the basis of the facts set out in the Particulars of Claim. There were two authorities, Keenan v United Kingdom (2001) 33 EHRR 38 and Powell v United Kingdom (2000) 30 EHRR CD362.
Powell was authority for the proposition that, in the context of care of patients in hospital, something more will be required to establish a breach of the Article 2(1) positive obligation to protect life, than a simple failure of the hospital to meet the standard of care. Keenan showed that where individuals were in custody and posed a real and immediate suicide risk, the Article 2(1) obligation required the authorities to take reasonable steps to avert that risk. However the State had no general obligation, either at common law or under Article 2(1) to place obstacles in the way of persons desirous of taking their own life. Children and mentally disordered persons might need protection, but adults did not. This was different with persons in police custody or in prison. However a hospital might be entitled, and perhaps bound to allow Mrs Savage a degree of unsupervised freedom that did carry with it some risk that she might abscond.
Therefore on the issue of whether there was a real and immediate risk of Mrs Savage committing suicide, the hurdle was a stiff one particularly in the absence of evidence of any previous suicide attempt. The issues of whether reasonable steps were taken and the locus standi should be decided at trial. Lord Scott would dismiss the appeal of the Defendant, the NHS Trust.
Lord Rodger said that the appeal must fail. Article 2 required a State to have in place a structure of laws which would help to protect life, but as was recognised in the case of Osman v United Kingdom (2000) 29 EHRR 245 the State’s duty went further and Article 2 implied a positive obligation on the authorities to take preventive operational measures to protect an individual whose life was at risk from the criminal acts of another individual. The operational obligation would be triggered if there were a real and immediate risk to the life of particular individuals.
The European Court had recognised that in certain circumstances, the State’s duty under Article 2 did include a duty to take steps to prevent people from killing themselves, as in Keenan (see above). Persons in custody were in a vulnerable position, and the risk of suicide was known to be higher among prisoners than among the general population. A similar duty arose when the State conscripted young people into its armed forces.
In relation to hospital patients, it had long been recognised that a State’s positive obligations under Article 2 to protect life included a requirement for hospitals to have regulations for the protection of their patients’ lives. In relation to patients suffering from mental illness, a hospital was under a duty to take precautions to avoid the possibility of injury, whether self inflicted or otherwise occurring to those patients. Mrs Savage was a detained patient.
If there was negligence on the part of the Defendant, they might be liable in damages but that did not mean that there was a violation of Article 2 if they performed the general obligations which the Article imposed on them. Articles 2 and 3 had to provide protection against assaults on patients. In the case of Powell the European Court said that they would not allow an operational duty to be erected on the basis of the approach in the case of Osman. However that did not mean that the European Court would also have ruled out an operational duty on the part of those authorities, in well defined circumstances, to prevent a patient from committing suicide. However the case of Powell was a very different one from the present case, and consequently provided no guidance.
The absence of civil, criminal and disciplinary mechanisms had been held to be a violation of Article 2 in Dodov v Bulgaria (Application No. 59548/00 17 January 2008. In that case, the Applicant’s mother suffered from Alzheimers and had disappeared from a nursing home. She needed constant supervision but was left along in the yard of the home. Her son complained that her life had been put at risk through the negligence of the nursing home staff, that the ensuing investigation had not resulted in any criminal or disciplinary sanctions, that he had not yet been able to obtain compensation in civil proceedings and also that the police had not done as much as they should have done to search for his mother.
In Lord Rodger’s view, it was abundantly clear that where there was a real and immediate risk of a patient committing suicide, Article 2 imposed an operational obligation on the medical authorities to do all that could be reasonably expected of them to prevent it.
In summary, health authorities were under an over arching obligation to protect the lives of patients in their hospitals in terms of Article 2. They might also be required to fulfil a number of complementary obligations.
- To ensure that they employ competent staff and that they are trained to a high professional standard
- To adopt systems of work which will protect the lives of patients
If there was a breach of these obligations, then there was a breach of Article 2. However a doctor might still be negligent and the patient might die. In that situation there would be no violation of Article 2. However the doctor would be personally liable in damages for the death and the health authority would be vicariously liable. That was the situation envisaged by Powell.
The same approach applied to a mental hospital.
Finally Article 2 imposed a further “operational” obligation on health authorities and their hospital staff. The operational obligation arose only if members of staff knew or ought to have known that that a particular patient represented a “real and immediate” risk of committing suicide. That was comparable to the position in Osman and Keenan. If they failed to discharge this obligation, then not only would the health authorities be liable in negligence, but they would also be in violation of Article 2.
Lord Rodger would dismiss the appeal and allow the trial judge to apply the law to the facts.
Lord Walker agreed with Lord Rodger and Baroness Hale.
Baroness Hale said that the principal component of Article 2 was the duty to have an effective system of criminal law to deter people from taking other people’s lives and to punish those who committed such crimes. However the duty went further. The case of Osman said that the system had to be backed up by law enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. Osman also said that Article 2 might imply in certain well defined circumstances a positive obligation on the authorities to take preventive operation measures to protect an individual whose life was at risk from the criminal acts of another individual. The risk had to be “real and immediate.”
In the case of Van Colle v Chief Constable of the Herfordshire Police [2008] UKHL 50 the House of Lords could not conclude from the information available to the police that there was a real and immediate risk to the life of the deceased.
The case of Keenan concerned a mentally ill young man who hanged himself whist serving a sentence of imprisonment. The European Court decided that whilst the risk was real, on the facts of the case it was not immediate.
There was then the unreported case of Killinc v Turkey App No 40145/98 where a military conscript had killed himself with his own gun. The European Court concluded that the authorities had not done all that they should have, to prevent the risk. The existing regulatory framework had failed, because the military medical authorities had not properly assessed and followed up his mental state. There was no regulatory framework governing the supervision of conscipts who suffered from mental illness, and that had caused the commander to put the deceased on guard duty and give him a gun, even though it was not clear that he was fit to do it.
The principle in Osman had been extended to the health care given to prisoners and other detainees, in Slimani v France (2006) 43 EHRR 49 where the European Court said that as a general rule, the mere fact that an individual died in suspicious circumstances whilst in custody, should raise an issue as to whether the State had complied with its obligations to protect that person’s right to life.
Counsel for the Claimant argued that the Osman principle should extend to persons who are compulsorily detained in hospital. Counsel for the Defendant trust argued that the Osman principle had no such application in this area.
In the case of Powell, the Applicants’ son had died of Addison’s disease. The parents believed that the doctors could have save his life and they brought an action against the health authority, which was settled. However they also brought an application to the European Court on the grounds that the doctors had falsified the records and also that there was a breach of the State’s obligation to protect life, since their son’s death was caused by agents of the State.
The European Court had said in the case of Powell that where the Contracting State had made adequate provision for securing high professional standards among health care professionals and the protection of the lives of patients, it could not accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient were sufficient of themselves to call a Contracting State to account from the standpoint of the positive obligations under Article 2. In that case (Powell) the parents of the deceased child had not pursued their NHS complaints against the doctors or their negligence claim against the health authority, and so they could not claim to be victims.
Thus ordinary medical negligence, which resulted in the death of the patient, was not in itself a breach of the state’s obligations under Article 2. The State’s obligations were discharged by having appropriate systems in place and effective investigatory machinery.
That had also been the issue in the case of Dodov (see above). The European Court had found that the Bulgarian legal system, faced with an arguable case of negligent acts endangering human life, had failed to provide an adequate and timely response, consonant with the State’s procedural obligations under Article 2. However the European Court was not convinced that the police reaction was inadequate.
The positive protective obligation under Article 2 was generally an obligation to have proper systems in place. However in some circumstances, an operational duty to protect a particularly individual was triggered. That operational duty was not triggered by ordinary medical negligence alone. Baroness Hale had little doubt that it was right to apply the approach adopted in Osman and Keenan to patients in hospital under the Mental Health Act, as it applied to persons detained under other powers in other institutions, particularly given the similarity of the powers that were exercised by the authorities. Human rights were a particular issue where the situation involved any kind of detention.
The trigger was the real and immediate risk to life, about which the authorities knew or ought to have known at the time. That had rarely been shown as was shown in Younger v United Kingdom (2003) 36 EHRR CD 252. If the duty was triggered then the authorities were bound to do all that reasonably could have been expected of them to prevent that risk. The court was entitled to take into account a number of factors, including the problem of resources.
Baroness Hale would dismiss the appeal of the Defendant and allow the matter to go to trial.
Lord Neuberger agreed with Lord Rodger and Baroness Hale.