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

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46.  The fact that patients are suffering from mental illness is also relevant to the authorities’ obligations under article 2. As can be seen from passages already referred to, the vulnerability of people suffering from mental illness, and the consequential need to protect them, are themes that run through the case law of the European Court. So, in deciding what measures should be taken to protect the lives of patients in mental hospitals, or of patients in general hospitals who are suffering from mental illness, the authorities will have to take account of the vulnerability of these patients - including a heightened risk they may commit suicide.

47.  For the United Kingdom, at least, there is nothing new in this. Leaving aside any statutory provisions which might be relevant, at common law, “as a matter of general principle a hospital is under a duty to take precautions to avoid the possibility of injury, whether self-inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental illness": Thorne v Northern Group Hospital Management Committee The Times 6 June 1964, per Edmund Davis J. Hinchcliffe J followed that approach in Selfe v Ilford and District Hospital Management Committee The Times 26 November 1970. In neither case was the patient a detained patient. Similarly, the duty to have appropriate systems in place in case women in a maternity ward developed a mental illness and tried to harm themselves was assumed by Lord Cameron in McHardy v Dundee General Hospitals’ Board of Management 1960 SLT (Notes) 19 (unreported on this point). Again, Mrs McHardy was not a detained patient.

48.  Accordingly, if it turned out that the hospital authorities had not had in place appropriate systems, say, for preventing patients, who were known to be suffering from mental illness, from committing suicide, not only would the authorities be potentially liable under domestic law for any resulting suicide, but they would also have violated one of their positive obligations under article 2 to protect their patients’ lives.

The Duty to Protect Detained Patients’ Lives

49.  The fact that Mrs Savage was not only a patient, but a detained patient, is also relevant to the authorities’ obligations under article 2. Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable. They are vulnerable not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European Court has developed for prisoners and administrative detainees must apply to patients who are detained. As explained in Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82:

“The Court considers that the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with.”

The hospital authorities are accordingly responsible for the health and well-being of their detained patients. Their obligations under article 2 include an obligation to protect those patients from self-harm and suicide. Indeed, as explained at para 28 above, the very fact that patients are detained carries with it a risk of suicide against which the hospital authorities must take general precautions: Tanribilir v Turkey (application no 21422/93) 16 November 2000, para 74, and Akdogdu v Turkey (application no 46747/99) 18 October 2005, para 47.

50.  I am accordingly satisfied that, as a public authority, the Trust was under a general obligation, by virtue of article 2, to take precautions to prevent suicides among detained patients in Runwell Hospital. So the Trust had, for example, to employ competent staff and take steps to see that they were properly trained to high professional standards. The hospital’s systems of work - and, doubtless, also its plant and equipment - had to take account of the risk that detained patients might try to commit suicide. When deciding on the most appropriate treatment and therapeutic environment for detained patients, medical staff would have to take proper account of the risk of suicide. But the risk would not be the same for all patients. Those who presented a comparatively low risk could be treated in a more open environment, without the need for a high degree of supervision. Those who presented a greater risk would need to be supervised to an appropriate extent, while those presenting the highest risk would have to be supervised in a locked ward. The level of risk for any particular patient could be expected to vary with fluctuations in his or her medical condition. In deciding what precautions were appropriate for any given patient at any given moment, the doctors would take account of both the potentially adverse effect of too much supervision on the patient’s condition and the possible positive benefits to be expected from a more open environment. Such decisions involve clinical judgment. Different doctors may have different views.

The Dispute in this Case

51.  Things can go wrong, however. As the Trust and the Secretary of State accepted, if a member of staff negligently decided to put a detained patient into an open ward and she escaped and killed herself, in an appropriate case the member of staff would be liable in damages and the hospital authorities would be vicariously liable for his negligence. But in such a situation, as explained in Powell v United Kingdom 30 EHRR CD362, 364, there would be no violation of article 2 on the part of the hospital authorities since they would have performed the general obligations which the article imposed on them.

52.  Mr Havers QC, for the respondent, submitted that, besides having these general obligations under article 2 to protect detained patients’ lives, the hospital authorities will come under an “operational” obligation to take steps to prevent the suicide of a detained patient who, they know or ought to know, presents a real and immediate risk of suicide. The Trust and the Secretary of State contended that any such duty would have to be developed by analogy with the operational duty recognised by the Court in Osman and that the decision in Powell v United Kingdom showed that the reasoning in Osman is not to be applied to the care of hospital patients.

53.  As part of his argument for the Trust, Mr Faulks QC submitted that, in the light of Powell, the European Court had been wrong in principle when it said, in Tarariyeva v Russia (application no 4353/03) 14 December 2006, para 74:

“Furthermore, where a hospital is a public institution, the acts and omissions of its medical staff are capable of engaging the responsibility of the respondent State under the Convention.”

That submission cannot be accepted.

54.  It is obvious, for example, that articles 2 and 3 must provide protection against assaults on patients, life-threatening and otherwise, by members of staff. Moreover, the passage in Tarariyeva v Russia, to which Mr Faulks took exception, is simply one of several statements by the European Court to the same effect. Perhaps the clearest is actually to be found in a sentence in Powell v United Kingdom (2000) 30 EHRR CD362, 364, which bears repetition:

“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.”

See also Glass v United Kingdom (2003) 37 EHRR CD66, para 1, and Kilinç v Turkey (application no 40145/98) 7 June 2005, para 42, citing Powell. In Herczegfalvy v Austria 15 EHRR 437, where it was alleged that the applicant had been subjected to treatment by doctors which violated article 3, the Court said, at p 484, para 82:

“While it is for the medical authorities to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible, such patients nevertheless remain under the protection of Article 3, the requirements of which permit of no derogation.”

The same must apply to article 2.

55.  It is, of course, the case that in Powell the European Court rejected the attempt of the applicants to use the approach in Osman as a base on which to erect an operational duty which would have applied to the hospital authorities in the situation in that case. But this does not mean that the 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.

56.  In LCB v United Kingdom 27 EHRR 212, the applicant complained of a risk to her life which, she said, had been created by the United Kingdom authorities exposing her father to radiation. In Osman, the complaint was of a failure to protect the applicant and his father from criminal threats to their lives coming from a specific third party. In the line of suicide cases, the complaint was of a risk to the individual’s life arising out of his desire to kill himself. In all these instances, the obligation of the public authorities to take special steps to protect the individual’s life was to be triggered by a real and immediate risk arising out of some action or proposed action by the authorities, by a known third party or by the individual himself.

57.  By contrast, in Powell v United Kingdom the applicant’s son was simply suffering from Addison’s disease, which had occurred naturally and from which he eventually died. The applicants did not allege that the medical authorities had failed in their general duty to make adequate provision for securing high professional standards among the medical staff concerned. So, if it had turned out that the applicants’ son’s treatment had been negligent, the medical staff and the relevant health authority would have been potentially liable under English domestic law - but there would have been no violation of any substantive obligation under article 2.

58.  On the other hand, the applicants did allege that, if their son had been treated more promptly when Addison’s disease was suspected, his life might have been saved. So they were, in effect, arguing that, when the condition was suspected, the medical authorities were faced with a real and immediate risk to the boy’s life and so were under a duty, analogous to the operational duty under Osman, to do what they reasonably could to save his life. The European Court rejected the analogy. The doctors and other medical staff were already engaged in treating the boy and were, of course, under the general article 2 duty to protect his life. The Court did not consider that, when Addison’s disease was suspected, this triggered an operational obligation on the staff concerned to do something other than treat him appropriately - which was what they were bound to do in any event.

59.  The circumstances in Powell were quite different from circumstances where a patient presents a real and immediate risk of suicide. Therefore, the decision of the European Court, which I respectfully consider was correct, provides no guidance on the problem before the House.

60.  Mr Faulks also relied on the judgment of the European Court in Dodov v Bulgaria (application no 59548/00) 17 January 2008, but it does not help either. The applicant’s mother, who was suffering from Alzheimer’s disease, was resident in a nursing home where she needed constant supervision. On the day in question, she had been left alone in the courtyard of the home and had disappeared, never to be found, despite a search by the nursing home staff and by the police. On the facts, it appeared that there had been negligence on the part of the member of staff who had left her unattended. The applicant complained to the prosecutor’s office about the conduct of the member of staff, but the criminal investigation was eventually discontinued. The prosecutor’s office refused to open proceedings against the police. The applicant took civil proceedings against those who were responsible for the nursing home and against the Minister of the Interior, as the authority responsible for the police, but the proceedings dragged on and, by the time the case was heard in Strasbourg, they were still at an early stage.

61.  So far as the nursing home was concerned, although the applicant criticised the relevant regulations, he appears to have done so within the context of a complaint that there had been a violation of the procedural obligation in article 2(1), since the Bulgarian legal system had not provided an adequate mechanism for holding members of staff responsible for his mother’s disappearance. In dealing with that complaint, the Court, it seems, proceeded on the basis that the applicant’s real complaint was that his mother’s disappearance had been due to casual negligence by a member of the nursing home staff. This would not, itself, have given rise to a violation by the State authorities of any obligation under article 2.

62.  The Court had, however, to see whether there had been a violation of the duty of the State under article 2 to provide civil, criminal or disciplinary mechanisms for enabling the liability of the staff to be established. Having looked into these aspects, the Court concluded that this procedural obligation had indeed been violated.

63.  The focus of the complaint relating to the nursing home was on the procedural obligation. There is no indication that the applicant suggested that the disappearance of Mrs Stoyanova had been due to a violation of an operational obligation on the nursing home authorities to take steps to protect her from a real and immediate risk to her life. This is entirely understandable since she actually disappeared because the member of staff left her unsupervised. So this part of the decision says nothing about the applicability of an Osman-style operational obligation in an appropriate situation.

64.  On the other hand, in the case of the police authorities the applicant did indeed complain that, in responding to the disappearance of his mother, they had been in breach of just such an operational obligation. The Court did not require, however, to “determine the modalities of the application” of the Osman principles to situations where an individual in ill health goes missing, since it was satisfied that, on any view, the police response had been adequate: see para 101. All that can be taken from this aspect of the judgment is that the Court considered that the Osman-style operational obligation could apply to the police in that situation.

65.  Neither Powell nor Dadov provides any basis whatever for the proposition that, as a matter of principle, medical staff in a mental hospital can never be subject to an “operational” duty under article 2 to take steps to prevent a (detained) patient from committing suicide - even if they know or ought to know that there is a real and immediate risk of her doing so. The obvious response to that proposition is: Why ever not? What else would they be supposed to do? Article 2 imposes on the hospital authorities and their staff an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide. Why should they not be under the usual complementary operational obligation to try to prevent a particular suicide in the appropriate circumstances?

66.  The only reason suggested by counsel was that it would conflict with the other obligations of the medical staff to their patients. That is hardly so. The operational obligation simply means that, in these critical circumstances, priority has to be given to saving the patient’s life. That is only practical common sense, since nothing else can be done to assist the patient or to promote her recovery unless her life is saved. In any event, given the high threshold, a breach of the duty will be harder to establish than mere negligence - and no one disputes that, in an appropriate case, the medical authorities can be held liable for a suicide that is made possible by staff negligence. In my view, it is abundantly clear that, where there is a real and immediate risk of a patient committing suicide, article 2 imposes an operational obligation on the medical authorities to do all that can reasonably be expected of them to prevent it.

Summary

67.  It may be useful to summarise the relevant obligations of health authorities like the Trust and to note the way they relate to one another.

68.  In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.

69.  In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2.

70.  Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell.

71.  The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell.

72.  Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.

Disposal

73.  For these reasons, and in agreement with Baroness Hale of Richmond, I would dismiss the appeal. It will be for the trial judge to apply the law to the facts as established by the evidence.

LORD WALKER OF GESTINGTHORPE

My Lords,

74.  I have had the great advantage of reading in draft the opinions of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond. I agree with them, and for the reasons which they give I would dismiss this appeal.

BARONESS HALE OF RICHMOND

My Lords,

75.  On 5 July 2004, Mrs Carol Savage walked out of the hospital to which she had been compulsorily admitted under section 3 of the Mental Health Act 1983 over three months earlier. She walked about two miles to a railway station and jumped in front of a train which killed her. An inquest jury concluded that she had killed herself while suffering from paranoid schizophrenia. They also considered that the precautions taken to prevent her from absconding from the hospital were inadequate. Her husband was so distraught at this tragedy that he could not contemplate taking proceedings for negligence either on his own behalf or on behalf of his wife’s estate. Her daughter has brought these proceedings under the Human Rights Act 1998 alleging that the hospital has violated her mother’s right to life under article 2 of the European Convention on Human Rights. For the purpose of the preliminary issue before us, it is not suggested that Miss Savage is not a victim within the meaning of the Convention. Nor is it necessary for us to say anything more about the very distressing facts of the case as these will be thoroughly explored if the case goes for trial.

76.  The issue before us is the scope of the state’s obligation to protect life under article 2.1. The material part of article 2.1 reads as follows: “Everyone’s right to life shall be protected by law. No-one shall be deprived of his life intentionally . . .” It is now well established that this imposes three different duties upon the state. The first is the negative duty to refrain from taking life, save in the exceptional circumstances catered for by article 2.2. It is not suggested that this duty was broken in this case. The second is an implied positive duty properly and openly to investigate deaths for which the state might bear some responsibility. There is not much point in prohibiting police and prison officers, for example, from taking life if there is no independent investigation of how a person in their charge came by her death. It is not disputed that this obligation applies in this case, but it is not suggested that it was broken. There has been a proper investigation. The third duty goes further than this. The state must not only refrain from taking life but also take positive steps to protect the lives of those within its jurisdiction. This case is about the scope of this last obligation. In particular, when does it extend beyond the primary duty, to have proper systems in place for protecting life, into an operational duty to protect this particular life? This issue has been very little explored in our domestic case law to date, most of which has been concerned with the nature and scope of the duty to investigate (see, eg, R (Amin) v Secretary of State for the Home Department [2003] UKHL 51, [2004] 1 AC 653; R (Middleton) v West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182; R (Sacker) v West Yorkshire Coroner [2004] UKHL 11, [2004] 1 WLR 796; R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin), [2006] 1 WLR 432; R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461).

77.  The principal component of the duty to protect life is the duty to have an effective system of criminal law to deter people from taking other people’s lives and to punish those who do. But it goes further than that. As the European Court of Human Rights put it in Osman v United Kingdom (1998) 29 EHRR 245, para 115:

“It is common ground that the State’s obligation in this respect extends beyond its primary duty 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.”

It was accepted by the parties in Osman that 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.”

78.  The question was how far that positive protective obligation went. The Court took into account “the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources” (para 116). Not every claimed risk to life entailed a duty to prevent its materialising. The police had also to exercise their powers in a way which fully respected due process and other guarantees contained in the Convention. Hence the Court defined the level of risk which would trigger the obligation in this way, at para 116:

“. . . it must be established . . . 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 . . . “

It has been said that this criterion “is not readily satisfied: in other words, the threshold is high": see Re Officer L [2007] UKHL 36, [2007] 1 WLR 2135, para 20, per Lord Carswell. But this is a comment, not an additional test. As Lord Bingham of Cornhill observed in Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2008] 3 WLR 593, para 30, “ . . . the test formulated by the Strasbourg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis".

 
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