End of the Savage saga as High Court finds hospital liable for patient’s suicide

4 May 2010 by Adam Wagner

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellant) [2010] EWHC 865 (QB) – Read judgment

The High Court has ruled that a mental health trust was responsible for the death of a patient who threw herself in front of a train. The judgment marks the end of a long and complex case, and a significant shift in the law relating to public authorities’ responsibility to preserve life under the Human Rights Act. The trust must now pay Mrs Savage’s daughter £10,000 in compensation.

Carol Savage committed suicide on 5 July 2004 at age 50. At the time of her death, she was detained at Runwell Hospital under Section 3 of the Mental Health Act 1983. She had suffered from mental illness intermittently for many years.

After Mrs Savage’s death, her daughter Anna made a claim on the basis that the hospital owed her, as a victim of the death, a duty under the Human Rights Act 1998. The basis of her claim was that the hospital had failed in its duty to protect her mother under Article 2 of the European Convention on Human Rights, the right to life. She also made a claim in her own right under Article 8 (right to family life).

Mental health patients and the right to life

Before making a decision on the liability of the trust, the House of Lords (now the Supreme Court) was asked to decide a preliminary issue relating to it’s responsibility under Article 2 (read decision). The Trust argued that the reasoning in Osman v United Kingdom (23452/94) (1999) 1 FLR 193 ECHR was not applicable to the care of hospital patients. In Osman, the European Court of Human Rights held that there is a positive obligation for a State to take preventive measures to protect individuals whose life is at risk.

The trust argued that applying Osman to mental health care would conflict with other obligations of medical staff to their patients and encourage them to be too restrictive of patients’ liberty for fear that they might commit suicide.

The House of Lords threw out the Trust’s appeal. They held that Article 2 put health authorities under an overarching obligation to protect the lives of their patients. If members of staff know, or are in a position to know, that a particular patient presented a real and immediate risk of suicide, there as an additional “operational” obligation to do all that could reasonably be expected to prevent such an eventuality.

End of the saga

The case has now finally concluded, with Mr Justice Mackay finding that the trust could and should have done more to protect Mrs Savage. He said “all that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant…”

Read more:

• A note by Philip Havers QC on the 2008 House of Lords judgment.
• See below (after the page break) for commentary on the House of Lords case by Rosalind English

COMMENT ON THE HOUSE OF LORDS JUDGMENT IN SAVAGE

January 2008 – by Rosalind English

There are two aspects to this case worth considering; the substantive point about the relationship between Convention liability and common law duty of care in a hospital context; and the equally important consideration on locus standi in cases where the claimant is not the direct victim of the alleged Convention violation.

Operational Liability under Article 2

As this case has progressed through the courts it has initiated an extremely interesting and informative debate about the relationship between liability under established common law medical negligence principles and the exposure of health authorities and their staff to claims under the Convention.

In Powell v United Kingdom (Admissibility) (45305/99) (2000) Inquest LR 19 ECHR the Strasbourg Court did not accept that ordinary medical negligence resulting in the death of a patient was in itself a breach of Article 2. But the far-reaching claims made by that Court in Osman continue to resound in any case involving a fatality where there is a public authority in the background to whom responsibility may be attached.

Does the outcome of this appeal impose an extra layer of responsibility on hard-pressed hospitals already labouring under the threat of liability in negligence if they failed to take reasonable care of their patients? As was pointed out in the Comment piece on the Court of Appeal judgment, this mental health case is clearly neither clinical negligence type claim (Powell) , nor is it a prison custody claim (Keenan). The state is under various obligations under Article 2.

However, the investigative obligation is not in issue here; it was not alleged that the inquest carried out in respect of Mrs Savage’s death was in any way inadequate. Nor was it directly responsible for her death. However the third obligation under Article 2(1) is that 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. 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

In arguing for liability under Article 2 the appellant and interveners relied on the Osman principle. But that judgment was made in the context of protecting life from the criminal act of a third party. Lord Scott’s judgment focuses quite closely on this important distinction – what the approach should be where the issue of state liability arises in a case where the fatality is neither an accident nor manslaughter. Mrs Savage, suffering from paranoid schizophrenia, absconded from the hospital where she was under light supervision, walked two miles to the local station and threw herself under a train. Should the hospital have limited her freedom more severely by barring the possibility of such an escape? The state does not, and should not, bear any obligation to place obstacles in the way of persons desirous of taking their own life. As Lord Scott points out, if it were otherwise, the positive obligation under section 2(1) to protect life would justify the removal of passport facilities from persons proposing to travel to Switzerland with suicidal intent. This matter has come under detailed judicial debate in both the Pretty and the Purdy cases.

Prisoners (as in Keenan v United Kingdom (2001) 33 EHRR 913),conscripts (Álvarez Ramón v Spain (application no 51192/99) 3 July 2001) and mental patients (Herczegfalvy v Austria (1992) 15 EHRR 437) are in a different position because the deprivation of liberty imparts more responsibility on the authorities concerned to ensure that any consequent suicidal ideation is properly dealt with. But for free individuals, felo de se (suicide) is always possible. It is no longer a crime.

The deceased in this question was of course a mental patient. But not all people detained under the Mental Health Act warrant the same level of nannying by the authorities; indeed it is such overbearing deprivation of small liberties in addition to the main one that potentially adds to their feelings of misery and helplessness. Lord Rodger of Earlsferry observes quite rightly that the risk, against which the responsible authorities have to guard, is not the same for all patients:

“The level of risk for any particular patient could be expected to vary with fluctuations in his or her medical condition.”(para 3).

But suicide raises much trickier problems on this score. Perfectly sane and apparently happy people throw themselves off bridges and in front of trains with no warning at all. There is not an easily predictable range of mental instability at one end of which medical staff should take special precautions against suicide risk and at the other end of which only minimal supervision is necessary. The consequence of making hospitals liable for suicides under Article 2 will be the same as the imposition of so many other types of legal liability – to be on the safe side hospitals will react by controlling, nannying and generally imposing drastic reductions on the autonomy of every patient, no matter how mild their illness. Their Lordships insist that operational obligation would not have such consequences because it would only apply in respect of patients who patient present a “real and immediate” risk of suicide. But as we have pointed out, this formulation can only be made out with the benefit of hindsight. Imposing an operational obligation to prevent such an eventuality is going to affect everyone, not just the patients who in fact are dangerously close to taking their own lives.

The implications of this judgment potentially extend beyond the walls of mental hospital. As Philip Havers QC points out in his note on the case, by one reading of the judgment, Article 2 will henceforth apply generally to patients who present a real and immediate risk of suicide, whether detained or not. This means that this case has significantly extended the application of the positive obligation to all health authorities, hospitals and hospital staff on the one hand and to all patients on the other hand, whether detained or not, albeit that it is likely that this obligation will arise, if at all, in the case of a mental hospital and mentally ill patients.

“Victim” status under Article 2

This part of the judgment was obiter but nevertheless of critical importance to the viability of any Human Rights Act claim where the claimant is the relative of someone whose death has been caused, allegedly, by failure to observe the positive obligation imposed by Article 2. Clarke MR noted in a decision below that it was unusual for such a claim to be made under the Human Rights Act because no particular policy bar to clinical negligence claims has been established in common law which would necessitate, or prompt, a human rights claim to be made on the basis of the same facts.

The husband of the deceased could have commenced an action in negligence on behalf of her estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, to recover damages for any pain and suffering caused to her by the Hospital’s failure to accord her the standard of care that it owed. An action could also have been instituted under the Fatal Accidents Act 1976 on behalf of any dependants of Mrs Savage who had suffered financial loss on account of her death. However in this case her daughter, the respondent, was neither entitled to bring an action on behalf of her mother’s estate nor was she a dependant of her mother for the purposes of the 1976 Act. She therefore lacked locus standi under domestic law to institute either action.

The question of locus standi for parties wishing to bring claims under the Human Rights Act is an extremely interesting one and this case shows it up in a particularly stark light. As Lord Scott points out, it makes sense that the investigative obligation under Article 2 entitles a close family member, such as a daughter of the deceased, to proceed against the state in respect of its failure to launch a proper investigation into a death. But since this is not a case about failure to investigate, but rather a challenge to the hospital to put adequate safeguards in place to prevent Mrs Savage’s suicide, this was effectively a Human Rights Act claim which circumvented the avenues already provided by UK law to 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. As Lord Scott opined, it is hard to see why it is the function of the Convention 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.