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|Judgments - Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate)
HOUSE OF LORDS
 UKHL 74
on appeal from: EWCA Civ 1375
OF THE LORDS OF APPEAL
FOR JUDGMENT IN THE CAUSE
Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants)
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Edward Faulks QC
(Instructed by Bevan Brittan LLP)
Philip Havers QC
(Instructed by Bindmans LLP)
Dinah Rose QC
(Instructed by Inquest, Justice, Liberty and Mind)
Department of Health
Nigel Giffin QC
(Instructed by Secretary of State for Health)
27 and 28 OCTOBER 2008
WEDNESDAY 10 DECEMBER 2008
HOUSE OF LORDS
OPINIONS OF THE LORDS OF APPEAL FOR JUDGMENT
IN THE CAUSE
Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants)
 UKHL 74
LORD SCOTT OF FOSCOTE
1. I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in full agreement that, for the reasons they give, this appeal should be dismissed. There are two matters, however, on which I want to add a few words of my own. In doing so I gratefully adopt and need not repeat Baroness Hales outline of the facts and of the relevant legislative background to the issues.
2. The first matter on which I want to comment is the locus standi of the respondent, the adult daughter of Mrs Savage, the deceased, to have instituted the action that has led to this appeal. Following Mrs Savages self-inflicted death, an inquest was held into the causes and circumstances of her death. The inquest was held in public, the investigation by the coroner into the circumstances and causes of the death was a full one - no one has suggested that it was in any respect inadequate - and the coroners and the coroners jurys conclusions were made public. It is accepted that these conclusions do not warrant the commencement of criminal proceedings against anyone. The jury concluded that
the precautions in place [at Runwell Hospital] on 5 July 2005 to prevent Mrs Savage from absconding were inadequate
and thereby exposed publicly the potential liability of the Hospital and its staff to the compensation remedies available in a civil court under ordinary domestic law.
3. There are two remedies under the ordinary domestic law which, following the inquest, could have been sought from the Hospital and its staff. The Hospital and its staff would, of course, have owed Mrs Savage the common law duty of care, a duty inherently flexible that imposes a standard of care dependant on the circumstances of each individual case. The jurys verdict at the inquest would have justified the commencement of an action in negligence on behalf of Mrs Savages estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, to recover damages for any pain and suffering caused to Mrs Savage by the Hospitals failure to accord her the standard of care that it owed, assuming, of course, that that failure could be established in the action. The jurys verdict would have justified, also, the institution of an action under the Fatal Accidents Act 1976 on behalf of any dependants of Mrs Savage who had suffered financial loss on account of her death. Either or both of these actions, to which the NHS Trust would have been the defendant, would, if successful, have established in a court of law that the care taken of Mrs Savage at Runwell Hospital had fallen below the standard to which she had been entitled under ordinary domestic law. But her husband, Mr Savage, who, as the person presumably entitled to her estate, could have instituted an action under the 1934 Act and who may also have been a dependant of his wife for the purposes of the 1976 Act, was not willing to institute either action.
4. The respondent, being neither entitled to bring an action on behalf of her mothers estate nor having been a dependant of her mother for the purposes of the 1976 Act, would have lacked locus standi under domestic law to institute either action. She commenced instead an action under section 7 of the Human Rights Act 1998, based on what she alleges to have been a breach of her mothers rights under article 2(1) of the European Convention on Human Rights, incorporated into our domestic law by the 1998 Act. Article 2(1) guarantees the right to life:
Everyones right to life shall be protected by law. No one shall be deprived of his life intentionally ".
It is, of course, not contended by the respondent that the NHS Trust, or any of its staff at Runwell Hospital, intentionally deprived Mrs Savage of her life. It is common ground, however, that article 2(1) requires the State not only to refrain from the intentional and unlawful taking of life (the negative obligation) but also to take appropriate steps to safeguard the lives of those within its jurisdiction (the positive obligation). And, additionally, the jurisprudence of the European Court of Human Rights (the Strasbourg court) has developed article 2(1) so as to require the State to provide an effective investigation into the circumstances of a death where agents of the State have played, or appear to have played, a part (see R (Amin) v Secretary of State for the Home Department  1 AC 653 and the Strasbourg court cases there cited). It is accepted that the investigative duty has, in the present case, been fully discharged by the coroners inquest. So it is a breach of the positive obligation that is relied on by the respondent. It is alleged that the article 2(1) positive obligation 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 and that the Hospital failed to take those steps.
5. One problem, and it seems to me a major problem, with the respondents claim is that a claim under section 7 of the 1998 Act may only be brought by a victim of the unlawful act or omission relied on (sections 7(1) and (7)). I can well understand how a member of a deceaseds family may be regarded as a victim for the purposes of the article 2(1) investigative obligation. An important, and perhaps the main, purpose of the investigative obligation is to enable the family of the deceased to understand why and how the deceased died and who, if anyone, was responsible for the death. It would follow that a close family member, such as a daughter of the deceased, could properly be regarded as a victim of a failure by the State to discharge its investigative obligation. But I am quite unable to understand how a close family member can claim to be a victim in relation to an act, in breach of the article 2(1) negative obligation, or in relation to an omission, in breach of the article 2(1) positive obligation, that had led to the death. The domestic law of a country may, as the domestic law of this country does, provide a remedy to the estate of the deceased and to the dependants of the deceased in any case where an act or omission unlawful under civil law has caused death. But I do not see it as any part of the function of article 2(1) to add to the class of persons who under ordinary domestic law can seek financial compensation for a death an undefined, and perhaps undefinable, class composed of persons close to the deceased who have suffered distress and anguish on account of the death. To do justice to the respondent, I do not imagine that her purpose in bringing the action was, or is, to obtain financial benefit for herself. She wants, I imagine, the consolation of a formal vindicatory recognition that Runwell Hospital had failed in its duty to her mother. But that recognition has already been afforded by the verdict of the coroners jury. What vindicatory improvement is this action expected to produce? For my part, I doubt very much the legitimacy of the respondents prosecution of this action.
6. Be that as it may, the locus standi of the respondent to bring this action, which could have been a short preliminary point of law potentially dispositive of the action, is not the preliminary issue that is the subject of this appeal. The parties have preferred to raise as a preliminary issue the determination
of the following point of law ., namely 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".
The provenance of this preliminary issue appears to be a perceived conflict between two lines of authority emanating from the Strasbourg court. The evident intention of the preliminary point is that the court should indicate into which line of authority the present case should be regarded as falling.
7. One line of authority relates to the death by suicide of those who were at the time of the suicide in the custody of the State. Keenan v United Kingdom (2001) 33 EHRR 38 was such a case. My noble and learned friend Baroness Hale has, in paragraph 81 of her opinion, dealt with Keenan and cited the Strasbourg courts formulation of the test to be applied to decide whether there had been a breach by the United Kingdom of the article 2(1) positive duty owed to Keenan. I need not repeat her citations. She has cited also (in para 82 of her opinion) Kilinç v Turkey, an unreported decision of the court, in which the test formulated in Keenan was repeated.
8. The other line of Strasbourg authority stems, particularly, from Powell v United Kingdom (2000) 30 EHRR CD 362, dealt with by my noble and learned friend in paragraphs 89 and 90 of her opinion. Powell was a case of alleged medical negligence in which a young boy had died in an NHS hospital. His parents said that his death had been caused by the negligence of the hospital and that therefore it must be concluded that there was a breach of the States obligation to protect life. The Strasbourg court rejected that conclusion, at p 364:
it cannot 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 are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.
9. Powell, therefore, is authority for the proposition that, in the context of care of patients in hospitals, something more will be required to establish a breach of the article 2(1) positive obligation to protect life than, simply, a failure on the part of the hospital to meet the standard of care of the patient required by the common law duty of care. Keenan, on the other hand, and the other custody cases referred to by my noble and learned friend, show that where individuals are in custody and are, or ought to be, known to pose a real and immediate suicide risk, the article 2(1) positive obligation requires the authorities to take reasonable steps to avert that risk. My Lords, I do not accept the starkness of the contrast between these two lines of authority on which the submissions that have been presented to your Lordships appear to be based. The standard of care required by our domestic law to be shown in order to discharge the common law duty of care is a flexible one dependent upon the circumstances of each individual case. The same must be true of the standard of protection required by article 2(1) to be extended by the State and State agents to individuals within the States jurisdiction whose lives are in danger. That circumstances alter cases is as true, in my opinion, of the States article 2(1) positive obligation as it is of the standard of care required by the common law duty.
10. Every patient who enters hospital knows that he or she may be at risk of medical error. We know that these things happen. Sometimes the error constitutes medical negligence, sometimes it does not. Powell shows that provided that there is no serious systemic fault and provided, in the event of death, that there is a proper investigation of the causes, a negligent medical error will not necessarily be enough to constitute a breach of the article 2(1) positive obligation. The case would, in my opinion, be no different if the patient who had died were an inmate in a prison hospital or a mentally ill patient who had been sectioned under section 3 and transferred to the hospital wing of the mental hospital on account of some medical condition. If, however, the conditions in the prison hospital or the hospital wing had been markedly inferior to those in an ordinary hospital and had contributed to the patients death, the article 2(1) positive obligation might well be engaged.
11. As to persons known to be a suicide risk, the State has no general obligation, in my opinion, either at common law or under article 2(1), to place obstacles in the way of persons desirous of taking their own life. The positive obligation under section 2(1) to protect life could not, for example, justify the removal of passport facilities from persons proposing to travel to Switzerland with suicidal intent. Children may need to be protected from themselves, so, too, may mentally ill persons but adults in general do not. Their personal autonomy is entitled to respect subject only to whatever proportionate limitations may be placed by the law on that autonomy in the public interest. The prevention of suicide, no longer a criminal act, is not among those limitations.
12. Persons in police custody or in prison are in a different situation. Their personal autonomy has been lawfully restricted by action taken against them by the State. The restrictions imposed may, for some, bring about depression, feelings of hopelessness and thoughts of suicide. Such a state of mind, if apparent to those who have charge of the person concerned, would constitute, in my opinion, a circumstance highly relevant to the standard of protection required by the positive obligation under article 2(1). The Keenan test refers to a real and immediate risk of self-harm known, or that ought to be known, to the custodial authorities. Such a knowledge would plainly constitute a very significant circumstance.
13. Mentally ill patients detained under section 3 are in a position in some respects similar to, but in other respects very different from, the position of those in police custody or in prison. Their position is similar in that they are detained by law. Some sectioned mental patients may be content with their lot but others will not be. It appears from the number of times Mrs Savage attempted to abscond that she fell into the latter class. Their position is dissimilar in that they are detained, as Baroness Hale has said, for their protection and not as a punishment. This is a distinction that some mentally ill patients may be unable to appreciate but it has an important consequence in the attitude to these patients to be expected of the hospitals or institutions in which they find themselves. The patients will be there for their protection, not as a punishment, and, unless protection of the public from them is one of the reasons for their having been sectioned, it would behove the hospital or institution to respect their personal autonomy and to impose restrictions on them to the minimum extent of strictness consistent with the need to protect them from themselves. Runwell Hospital could have kept Mrs Savage in a locked ward, instead of an open acute ward, could have subjected her to checks on her whereabouts every 15 minutes instead of the 30 minute checks that were prescribed at the time of her fatal absconding on 5 July 2004, and, no doubt, could have imposed other restrictions that would have made it virtually impossible for her to abscond. However the hospital were, in my opinion, entitled, and perhaps bound, to allow Mrs Savage a degree of unsupervised freedom that did carry with it some risk that she might succeed in absconding. They were entitled to place a value on her quality of life in the Hospital and accord a degree of respect to her personal autonomy above that to which prisoners in custody could expect.
14. The question whether there was on 5 July 2000 a real and immediate risk of Mrs Savage committing suicide that was known, or ought to have been known, to the Hospital must be decided at a trial. The hurdle is a stiff one particularly in the absence of evidence of any previous suicide attempt by Mrs Savage. If there was such a risk, the question whether the reasonable steps that the Hospital should have taken to protect her included placing further restrictions on her freedom and personal autonomy than were in place on 5 July must be decided at a trial. So, too, must be the question whether the respondent has locus standi to maintain this action. I would dismiss this appeal.
LORD RODGER OF EARLSFERRY
15. In July 2004 Mrs Carol Savage, who was suffering from paranoid schizophrenia, absconded from Runwell Hospital where she was being treated as a detained patient in an open acute psychiatric ward. She walked two miles to Wickford Station and there committed suicide by throwing herself in front of a train. Her husband has raised no action in respect of her death, but her adult daughter, Anna Savage, has brought the present proceedings alleging that the South Essex Partnership NHS Foundation Trust violated Mrs Savages article 2 Convention right to life by allowing her to escape from the hospital and kill herself. The claimant says that as a result of her mothers death she suffered distress, anxiety, vexation, bereavement, loss and damage. She claims just satisfaction for the violation of article 2, including damages. She also alleges that the Trust breached her article 8 Convention right - but, for present purposes, no separate issue arises under that article.
16. The Trust successfully applied to Swift J for a question of law to be determined as a preliminary issue. The question related to the proper test for establishing a breach of article 2 of the Convention on the basis of the facts set out in the particulars of claim. The Trust, with the support of the Secretary of State, contended that the extent of the obligations of health authorities to protect a patients life in a case like the present is to be found in the decision of the European Court in Powell v United Kingdom (2000) 30 EHRR CD362. The claimant argued, on the basis of Osman v United Kingdom (1998) 29 EHRR 245, that a duty to take steps to prevent a particular patient from committing suicide arises if the authorities know or ought to know that there is a real and immediate risk of her doing so. Swift J accepted the argument for the Trust and struck out the action. The Court of Appeal (Sir Anthony Clarke MR, Waller and Sedley LJJ) allowed the claimants appeal and ordered a trial. The Trust appeals to this House.
17. The appeal must fail. The fundamental error in the approach of the Trust and the Secretary of State is to conceive of Powell and Osman as laying down two mutually exclusive approaches, only the first of which could ever apply to the acts and omissions of medical staff. The case law of the European Court contains not a hint of such an approach. On the contrary, the principles represented by Powell and Osman relate to different aspects of the article 2 obligations of health authorities and their staff to protect life. The obligations are not alternative but complementary. In order to explain the position in relation to detained patients, I must look at a variety of other situations where obligations under article 2 arise. Nothing I say is intended to have any application to the article 2 procedural obligation, which the House has examined in a number of cases, including, most recently, R (L) v Secretary of State for Justice  UKHL 68.
The Positive Obligations to Protect Life
18. Article 2 declares that Everyones right to life shall be protected by law. In the 1980s, principally in a line of cases arising out of the violence in Northern Ireland, the Commission recognised that article 2 could give rise to positive obligations on the part of a State to protect life. But this did not mean that a positive obligation to exclude all possible violence could be deduced from the article. See, for example, W v UK (application no 9348/81) (1983) 32 DR 190, 200, para 12; DJ Harris, M O'Boyle, C Warbrick, Law of the European Convention on Human Rights (1995), p 39.
19. Fundamentally, article 2 requires a State to have in place a structure of laws which will help to protect life. In Osman v United Kingdom 29 EHRR 245, 305, para 115, the European Court identified the primary duty of a State under the article as being:
to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions.
But, as the parties in Osman recognised, the States duty goes further, and article 2:
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.
20. As support for this interpretation of article 2, the Court referred to its earlier decision in LCB v United Kingdom (1998) 27 EHRR 212. The applicants father had been present on Christmas Island during the British nuclear tests in 1957 and 1958. In 1970 she was diagnosed as suffering from a particular form of leukaemia. She claimed that, by reason of the positive obligation under article 2 to protect her life, the United Kingdom authorities had been under an obligation to warn her parents of the risks associated with her fathers exposure to radiation and to monitor her health. The Court held that the applicant had not proved that her father had actually been exposed to radiation, but nevertheless considered the position as if he had been.
21. The Court identified the issue as being whether, given the circumstances of the case, the State did all that could have been required of it to prevent the applicants life from being avoidably put at risk": 27 EHRR 212, 228, para 36. The Courts answer, at p 229, para 38, was that:
the State could only have been required of its own motion to take these steps [i e provide advice to her parents and monitor her health] in relation to the applicant if it had appeared likely at that time that any such exposure of her father to radiation might have engendered a real risk to her health (emphasis added).
Having reviewed the evidence, at p 229, para 41, the Court did not find it established that:
given the information available to the State at the relevant time concerning the likelihood of the applicants father having been exposed to dangerous levels of radiation and of this having created a risk to her health, it could have been expected to act of its own motion to notify her parents of these matters or to take any other special action in relation to her (emphasis added).
22. The Court proceeded on the basis that article 2 imposed on the United Kingdom authorities a general obligation to take appropriate steps to protect the lives of those within their jurisdiction. But the applicant was asserting that they had been obliged, of their own motion, to do something specific in respect of her, viz to warn her parents and monitor her health. The problem was that she was just one of millions of people within the jurisdiction of the United Kingdom. Resources are finite. The authorities could not have been expected to monitor the health of each and every individual. How to choose? The Court held that the authorities would have been under this special obligation, of their own motion to advise the applicants parents and to monitor her health, if it had appeared likely that any exposure of her father to radiation might have engendered a real risk to her health. The trigger for the obligation would have been the authorities awareness of the real risk". On the facts, the Court held that the obligation had not been triggered in respect of the applicant. In view of the Trusts argument in the present case, it is worth noticing, however, that the decision in LCB suggests that, if triggered, the duty would have applied to the medical authorities, just as much as to any other public authorities.