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Judgments - Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate)

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23.  In Osman v United Kingdom there was, of course, no doubt that the police authority was under a general duty to protect the lives of people in its area. This duty could be derived from the State’s primary duty under article 2 to have in place law enforcement machinery for the prevention, suppression and “sanctioning” of breaches of the criminal law. But, as in LCB, the applicant was claiming that the police had been obliged, of their own motion, to take special measures in respect of himself and his father. What the European Court had to identify were the circumstances in which police authorities, though faced with a multitude of calls on their time and resources, would come under an obligation to single out particular individuals and take special measures to protect them from some threat to their lives.

24.  Drawing on LCB v United Kingdom, the Court held, 29 EHRR 245, 305-306, para 116, that an “operational” obligation to take these measures would be triggered if there were a “real and immediate risk” to the life of particular individuals:

“In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The Court does not accept the Government’s view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measures to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case” (internal citations omitted).

In brief, the obligation to take additional steps to protect the lives of particular individuals arises when the police authorities - who are, admittedly, under a general duty in terms of article 2 to protect life - know or ought to know of a “real and immediate” risk to the individuals’ lives from the criminal acts of third parties.

Duty to Protect against Suicide: Prisoners

25.  In this country attempted suicide is not a crime. No one suggests that the United Kingdom is, on that account, in breach of its article 2 obligation to protect everyone’s right to life. So the primary article 2 duty to have in place and enforce criminal law sanctions to deter threats to life cannot be the source of any obligation on the part of the United Kingdom authorities to take appropriate steps to protect people from the threat to their lives posed by their own desire to commit suicide. And, of course, under the domestic law of the United Kingdom there is no general legal duty on the State to prevent everyone within its jurisdiction from committing suicide. If the position were otherwise, town and countryside might have to be littered with fences, guard rails, netting and so forth to try to thwart attempts at suicide, especially at favourite suicide spots such as Beachy Head and Salisbury Crags. Police forces might also have to be increased to keep a routine lookout for potential suicides. The loss of amenity and the intrusion into people’s lives would be equally unwelcome.

26.  Nevertheless, the European Court has recognised that, in certain circumstances, the State’s duty under article 2 does indeed include a duty to take steps to prevent people from killing themselves. The Court first adopted that interpretation of article 2 in Keenan v United Kingdom (2001) 33 EHRR 913, a case involving a young man who had committed suicide while in custody in Exeter prison. The obligations on the prison authorities which the Court identified were adaptations of the obligations which it had expounded in Osman, starting with a high-level general duty and working down to an operational duty.

27.  Given that there was no obligation on a State under article 2 to take specific steps to prevent suicides in the population at large and given that there was also no question of preventing the commission of a crime, the European Court had to identify some other basis for holding that article 2 imposed these obligations, both general and operational, to prevent suicides among prisoners. The Court found the requisite basis in its previous - very brief - holding in Salman v Turkey (application no 21986/93) 27 June 2000, para 99, that “Persons in custody are in a vulnerable position and the authorities are under a duty to protect them.” Referring back to that passage, the Court said in Keenan 33 EHRR 913, 958, paras 90-91:

“90. In the context of prisoners, the Court has already emphasised in previous cases that persons in custody are in a vulnerable position and that the authorities are under a duty to protect them. It is incumbent on the State to account for any injuries suffered in custody, which obligation is particularly stringent where that individual dies. It may be noted that this need for scrutiny is acknowledged in the domestic law of England and Wales, where inquests are automatically held concerning the deaths of persons in prison and where the domestic courts have imposed a duty of care on the prison authorities in respect of those in their custody.

91. The Government have argued that special considerations arise where a person takes his own life, due to the principles of dignity and autonomy which should prohibit any oppressive removal of a person’s freedom of choice and action. The Court has recognised that restraints will inevitably be placed on the preventive measures taken by the authorities, for example in the context of police action, by the guarantees of Articles 5 and 8 of the Convention. The prison authorities, similarly, must discharge their duties in a manner compatible with the rights and freedoms of the individual concerned. There are general measures and precautions which will be available to diminish the opportunities for self-harm, without infringing on personal autonomy. Whether any more stringent measures are necessary in respect of a prisoner and whether it is reasonable to apply them will depend on the circumstances of the case.”

28.  When the Court said that prisoners are in a vulnerable position, it was only stating the obvious: unable to get away, they are vulnerable to being assaulted or even murdered by a fellow inmate (e g, Edwards v United Kingdom (2002) 35 EHRR 487), to being bullied, to being blackmailed, to being subjected to sexual abuse etc. Usually, the danger will come from other prisoners but, sometimes, it will be from rogue prison officers. The situation is aggravated by the fact that many prisoners suffer from some form of mental disorder which may affect their ability to look after themselves. Moreover, while the prison authorities are not obliged to regard all prisoners as potential suicide risks (Younger v United Kingdom (2003) 36 EHRR CD252, 268), the risk of suicide is known to be higher among prisoners than among the equivalent population at large. Indeed in Tanribilir v Turkey (application no 21422/93) 16 November 2000, the European Court went further and indicated, at para 74, that, by its very nature, any deprivation of physical liberty carries with it a risk of suicide, against which the authorities must take general precautions:

“La Cour rappelle que toute privation de liberté physique peut entraîner, de par sa nature, des bouleversements psychiques chez les détenus et, par conséquent, des risques de suicide. Les systèmes de détention prévoient des mesures afin d'éviter de tels risques pour la vie des détenus, comme le dépôt des objets coupants, de la ceinture ou des lacets.”

The Court repeated this passage in Akdogdu v Turkey (application no 46747/99) 18 October 2005, para 47.

29.  Therefore, the duty of prison authorities to take steps to prevent suicides derives from their wider duty to protect prisoners who are in a vulnerable position and for whom they are responsible.

30.  Although, in para 88 of its judgment in Keenan 33 EHRR 913, the European Court recites the high-level general duty of the State to put in place effective criminal law sanctions to deter the commission of offences against prisoners, this is really just part of the tralatician jurisprudence of the Court on positive obligations under article 2. It actually has little or no relevance to cases of suicide. More relevantly, there is a lower-level, but still general, duty on a State to take appropriate measures to secure the health and well-being of prisoners. Cf Slimani v France (2004) 43 EHRR 1068, 1080, para 25, quoted at para 19 below. Indeed, in England, section 249(1) of the National Health Service Act 2006 requires the relevant NHS bodies and the prison service to co-operate with a view to securing and maintaining the good health of prisoners. So far as the risk of suicide itself is concerned, under article 2 there is a general duty on the prison authorities to take measures and precautions which can diminish the opportunities for self-harm, without infringing the prisoners’ personal autonomy: Keenan, 33 EHRR 913, 958, para 91; Renolde v France (application no 5608/05) 16 October 2008, para 83. The practical example of that duty given in Tanribilir, para 74, and Akdogdu, para 47, is removing things, such as sharp objects, belts or laces, which prisoners could use to harm themselves. A rather more elaborate general precaution of this kind is the wire netting which, for well over a century, has been stretched between the first floor landings of traditional British prisons to catch prisoners who might try to commit suicide by jumping from an upper landing.

31.  If the authorities failed to put in place appropriate general measures to prevent suicides among the prisoners in a particular prison and, as a result, a prisoner was able to commit suicide, there would be a breach of article 2. If, on the other hand, the authorities had employed properly trained staff and taken all the relevant general precautions, but a prisoner none the less succeeded in committing suicide because of the casual negligence of a member of the prison staff, the prison authorities would be vicariously liable for that negligence, but there would be no violation of article 2.

32.  The last sentence in para 91 of the European Court’s judgment in Keenan envisaged that more stringent measures in respect of a prisoner might be necessary and appropriate, depending on the circumstances. The Court went on, 33 EHRR 913, 958, para 92, to identify the ultimate question in that case as being:

“whether the authorities knew or ought to have known that Mark Keenan posed a real and immediate risk of suicide and, if so, whether they did all that reasonably could have been expected of them to prevent that risk.”

This describes the separate “operational” obligation on the prison authorities to take specific steps, of their own accord, to prevent the suicide of a particular prisoner when there is a “real and immediate” risk of that happening. Even if the authorities had fulfilled all their other obligations, their failure to fulfil this obligation would have been liable to result in a violation of article 2. The influence of Osman is plain.

Duty to Protect Other Detainees

33.  The European Court has applied the same general approach in relation to people who are in some other form of detention. In Slimani v France 43 EHRR 1068, a Tunisian, who had been committed to a psychiatric hospital on several occasions, died while he was being detained in an administrative detention centre to await deportation from France. The applicant complained that there had been a violation of article 2 on two grounds: the detention centre had not been equipped with the necessary medical facilities and the doctors had failed to administer the appropriate treatment. The substantive complaint was rejected on the ground of non-exhaustion of the available domestic remedies. In outlining the general principles, however, the European Court made the familiar point that article 2 obliged a State to take appropriate steps to safeguard the lives of those within its jurisdiction and added, at p 1079, para 24:

“The obligations on Contracting States take on a particular dimension where detainees are concerned since detainees are entirely under the control of the authorities. In view of their vulnerability, the authorities are under a duty to protect them.”

The Court went on to say, at p 1080, para 25, that:

“besides the health of prisoners, their well-being also has to be adequately secured, given the practical demands of imprisonment. In this context account has to be taken of the particular vulnerability of mentally ill persons. These guarantees must, by analogy, benefit other persons deprived of their liberty, such as persons placed in administrative detention.”

The Court has returned to address the vulnerability of persons suffering from mental illness in other judgments, such as Rivière v France (application no 33834/03) 11 July 2006, para 63, and Renolde v France (application no 5608/05) 16 October 2008, para 84.

Duty to Protect against Suicide: Conscripts

34.  The European Court has recognised that a somewhat similar duty to take steps to prevent suicide arises when a State conscripts young people into its armed forces. The duty was first given effect in the Court’s short admissibility decision in Álvarez Ramón v Spain (application no 51192/99) 3 July 2001. The applicant’s son hanged himself while doing his national service. The European Court recognised that article 2 required an independent investigation to be held in a case, like the one before it, where agents of the State might possibly be held responsible (“où les agents de l'Etat peuvent éventuellement être considérés comme responsables”). The court did not explain further why the military authorities might have been under this article 2 duty to take steps to prevent the conscript’s suicide.

35.  Despite this, in Kilinç v Turkey (application no 40145/98) 7 June 2005, para 41, the Court simply referred to Álvarez Ramón as showing that it was “incontestable” (sans conteste) that the duty to prevent suicides applied in the case of conscripts:

“Cette obligation, qui vaut sans conteste dans le domaine du service militaire obligatoire, implique avant tout pour les Etats le devoir primordial de mettre en place un cadre législatif et administratif visant une prévention efficace. S'agissant du domaine spécifique en cause, ce cadre doit de plus réserver une place singulière à une réglementation adaptée au niveau du risque qui pourrait en résulter pour la vie non seulement du fait de la nature de certaines activités et missions militaires mais également en raison de l'élément humain qui entre en jeu lorsqu'un Etat décide d'appeler sous les drapeaux de simples citoyens.

Pareille réglementation doit exiger l'adoption de mesures d'ordre pratique visant la protection effective des appelés qui pourraient se voir exposés aux dangers inhérents à la vie militaire et prévoir des procédures adéquates permettant de déterminer les défaillances ainsi que les fautes qui pourraient être commises en la matière par les responsables à différents échelons” (internal citations omitted).

36.  Again, this judgment makes it clear that the relevant authorities have two general obligations under article 2. The first is to put in place a legislative and administrative framework which will make for the effective prevention of suicides. The second is to ensure that practical measures are adopted (“l'adoption de mesures d'ordre pratique”) to protect conscripts who could be exposed to the dangers inherent in military life.

37.  To judge from the rest of para 41 of the judgment, for the Court, there appear to be two particular factors which create the (increased) risk of suicide among conscripts, which in turn means that article 2 requires the State to guard against that risk. First, there is the nature of some of the military activities and assignments in which the recruits will have to engage. Secondly, there is the “human element” which comes into play when a State calls up ordinary citizens. The reference to the nature of the military activities and assignments is a little unclear, but the Court may have had in mind, for instance, the situation of conscripts who have to participate in stressful anti-terrorist operations. In the later case of Ataman v Turkey (application no 46252/99) 27 April 2006, para 56, the Court referred to the need to supervise soldiers to whom weapons were entrusted and to prevent suicides. Since the carrying of weapons was involved, the authorities could be expected to show particular diligence and adopt a suitable system for dealing with the matter in the case of soldiers with psychological problems.

38.  In Kilinç v Turkey the Court found that the conscript’s death had been caused by the failure to establish proper systems. So the question of the operational obligation to deal with an immediate and real risk of suicide did not arise. But in Ataman v Turkey, para 54, under reference to Tanribilir v Turkey, para 70, the Court held that this operational obligation would indeed apply in the case of conscripts:

“La Cour estime également que l'article 2 peut, dans certaines circonstances bien définies, mettre à la charge des autorités l'obligation positive de prendre préventivement des mesures d'ordre pratique pour protéger l'individu contre autrui ou, dans certaines circonstances particulières, contre lui-même” (citation omitted).

The Court went on to hold that the authorities had failed to fulfil this operational obligation in the case of Mr Ataman.

The Nature of the Duties

39.  The cases on prisoners and conscripts suggest that the Court sees article 2 as imposing an obligation on the State to take appropriate practical measures to prevent them committing suicide because they are under the control of the State and placed in situations where, as experience shows, there is a heightened risk of suicide. Since, in other respects, the predicaments of the prisoners and conscripts are different, the other factors which contribute to the risk, and so give rise to the obligation, are not the same. For instance, the “position of vulnerability” of the prisoners is stressed; the human reaction to being called up to do military service is mentioned in the case of the conscripts.

40.  Article 2 requires the State to ensure that there is a legislative and administrative framework which will make for the effective prevention of suicides. The general practical precautions which article 2 requires the responsible authorities to put in place depend on the nature of the two operations - for example, removing belts etc from prisoners and keeping an eye on conscripts when they are given weapons. But, by the time the prison or military authorities are faced with the stark reality that one of their charges poses a real and immediate risk of suicide, the anterior reasons for imposing on the authorities the obligations (including the operational obligation) to try to prevent suicides lie very much in the background. In both situations the pressing practical problem for the authorities is essentially the same. So, too, is the operational duty: the authorities must do what can reasonably be expected of them in the circumstances to prevent the suicide.

41.  The operational duty itself is not particularly stringent. But this House has been at pains to stress that the threshold (real and immediate risk to life) for triggering the duty is high: In re Officer L [2007] 1 WLR 2135, 2143H, para 20, per Lord Carswell. In Van Colle v Chief Constable of the Hertfordshire Police [2008] 3 WLR 593, the House endorsed Lord Carswell’s approach, Lord Hope of Craighead commenting, at p 617H, para 66, that he read “his words as amounting to no more than a comment on the nature of the test which the Strasbourg court has laid down, not as a qualification or a gloss upon it.”

42.  It is indeed precisely because there is a “real and immediate” risk to life that article 2 is interpreted as imposing this operational duty which focuses on preventing the suicide. Of course, a duty on the authorities to do what can reasonably be expected of them allows for competing considerations, such as the welfare of other prisoners and conscripts, or the demands of prison security or the military situation at the time, to be taken into account. And the need to respect the autonomy of prisoners remains. Nevertheless, so far as the individual prisoner or conscript is concerned, the immediacy of the danger to life means that, for the time being, there is, in practice, little room for considering other, more general, matters concerning his treatment. There will be time enough for them, if and when the danger to life has been overcome. In the meantime, the authorities’ duty is to try to prevent the suicide.

43.  I can now turn to the position in the present case where, at the time of her death, Mrs Savage was detained under section 3 of the Mental Health Act 1983. So far as relevant for present purposes, that section authorises admission to a hospital, and detention there, on the ground that the patient is suffering from mental illness of a nature or degree which makes it appropriate for her to receive medical treatment in a hospital and it is necessary for the health or safety of the patient that she should receive such treatment and it cannot be provided unless she is detained under the section. What obligations does article 2 impose on the State authorities in such a case?

The Duty to Protect the Lives of Hospital Patients

44.  Mrs Savage was a detained patient, but first and foremost she was a patient in a hospital. And it has long been recognised that a State’s positive obligations under article 2 to protect life include a “requirement for hospitals to have regulations for the protection of their patients’ lives.” See the opinion of the Commission in Isiltan v Turkey (application no 20948/92) 22 May 1995, DR 81-B, p 35, which the European Court relied on, for instance, in Calvelli and Ciglio v Italy (application no 32967/96) 17 January 2002, para 49. When referring to the State’s obligations to protect life, the Court said:

“Those principles apply in the public-health sphere too. The aforementioned positive obligations therefore require States to make regulations compelling hospitals, whether public or private, to adopt appropriate measures for the protection of their patients’ lives” (internal citations omitted).

See also Tarariyeva v Russia (application no 4353/03) 14 December 2006, para 74, and Dodov v Bulgaria (application no 59548/00) 17 January 2008, para 80.

45.  These passages show that a State is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals. This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2. The European Court put the point quite shortly in Powell v United Kingdom 30 EHRR CD362, 364:

“The Court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage [the State’s] responsibility under the positive limb of Article 2. However, where a Contracting State has made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, 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.”

See also Dodov v Bulgaria, para 82.

The Duty to Protect the Lives of Patients suffering from Mental Illness

 
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