Savage v South Essex Partnership NHS Foundation Trust & Anor

This appeal arises out of a tragic event. On 5 July 2004 Mrs Carol Savage committed suicide after absconding from the Runwell Hospital (‘the hospital’), where she had been detained pursuant to section 3 of the Mental Health Act 1983 (‘the MHA’). She was only 49 years of age. She had a long history of mental illness and had been an in-patient on previous occasions. On 16 March 2004 she was admitted to the hospital on a voluntary basis but on 17 March she was first temporarily detained under section 5(3) of the MHA and then later detained under section 3. She was detained for treatment for paranoid schizophrenia on an open acute psychiatric ward. During her time in hospital she had made a number of attempts to leave. On 5 July she succeeded in leaving the hospital and then walked about two miles to the railway station at Wickford, where she jumped in front of a train and was killed.

On 1 July 2005 the deceased’s daughter, Anna Savage, who is now the appellant, commenced proceedings against the South Essex NHS Trust (‘the Trust’) which was responsible for the hospital. The appellant claims damages under sections 6, 7 and 8 of the Human Rights Act 1998 (‘the HRA’) on the basis that the Trust is a public authority and is liable for an alleged breach of the deceased’s right to life under article 2 of the European Convention on Human Rights (‘the Convention’) and/or for an alleged breach of her right to respect for private and family life under article 8 of the Convention. No claim was made at common law in negligence or under the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accident Acts by the deceased’s estate or by her husband, daughter or any other member of the family. This is thus a most unusual claim. However, it is conceded on behalf of the Trust that the appellant is arguably a victim for the purposes of the HRA.

The Trust denied liability on a number of grounds and a date for the trial of the action was fixed for 29 January 2007. Although there is little dispute of fact, as Swift J said at [4] of her judgment, there are substantial issues about the nature and adequacy of the hospital’s management of the deceased. They include the question whether the Trust or its employees were guilty of negligence. The allegations of negligence centre on whether there was a failure to take reasonable measures to prevent the risk of suicide and, in particular, whether there was a failure properly to assess the risk of the deceased absconding from the hospital. It is common ground that the issue of negligence can only be determined after a trial. On the other hand it is also common ground that the allegations do not amount to allegations of gross negligence such as would be sufficient to sustain a charge of manslaughter.

On 3 January 2007, only a short period before the date fixed for trial, the Trust issued an application asking the court to determine as a preliminary issue what, on the facts alleged in the particulars of claim, is the proper test in law in order to establish a breach of article 2 of the Convention. The case for the Trust is that it is necessary (at least) to establish gross negligence, whereas the case for the appellant is that it is sufficient to establish negligence, or perhaps something less. It was submitted to the judge by Mr Richard Hermer on behalf of the appellant that the question what is the true test should not be decided as a preliminary issue but at the trial after the trial judge had heard the evidence. Mr Angus McCullough submitted on behalf of the Trust that it should be decided as a preliminary issue on the ground that, if it was decided in favour of the Trust, there would be a considerable saving of time and money because it was common ground that, if the test was gross negligence, the appellant could not succeed and judgment would have to be given for the Trust under CPR Part 24.

The judge decided to proceed with the hearing of the preliminary issue. She resolved the issue in favour of the Trust and made a declaration that

“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 and the factual and expert evidence disclosed by the [appellant], the appellant would be required to establish that the [Trust] had been guilty of, at the least, gross negligence such as would be sufficient to sustain a charge of manslaughter.”

In the light of that declaration the judge gave summary judgment for the Trust and vacated the trial date. She also granted permission to appeal.

The appellant advances two grounds of appeal, first that the judge was wrong in law to conclude that it was possible to determine the issue without a trial of the facts and, secondly, that, in so far as it is possible to determine the issue without recourse to a factual examination, the judge was wrong in law to hold that the applicable test was one of gross negligence. Permission was given for MIND to intervene in the appeal. They support the appellants’ grounds of appeal but also rely upon article 14 of the Convention. In the light of that reliance Miss Richards, who now represents the appellant, also relies, so far as necessary, upon article 14. It is convenient to consider first the issue of principle, namely what is the correct test in order to establish a breach of the right to life in article 2 of the Convention. We note in passing that there is no allegation of any breach of what has sometimes been called the adjectival or procedural right which has been held to be implicit in article 2, namely the right to have a relevant death properly investigated. That is because it is accepted that there was a coroner’s inquest and because it was open to the deceased’s husband and family to bring a civil action in respect of her death and that, together, they amount to a discharge of the duty to investigate in article 2.

Article 2 of the Convention is entitled “Right to life” and provides, among other things, that “Everyone’s right to life shall be protected by law”. It is common ground that, as the judge said at [9], it is now well established that article 2(1) requires the state, not only to refrain from the intentional and unlawful taking of life, but also to take appropriate action to safeguard the lives of those within its jurisdiction. In R (Middleton) v. West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (a case in which a prisoner committed suicide) Lord Bingham, delivering the opinion of the appellate committee of the House of Lords, said at paragraph 2:

“The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.”

There is now a considerable amount of jurisprudence both in Strasbourg and here which considers the scope of the duty to investigate under article 2, whereas until very recently there have been a comparative lack of cases which consider the substantive duty. There is no English case which clearly identifies the test in a medical negligence case. The Trust’s case that the test is at least that of gross negligence can perhaps be seen by reference to two cases in this court, namely R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 and R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971. They were both cases about the duty to investigate but they both contain some reference to the relevant test.

In Takoushis I gave the judgment of this court, which also comprised Chadwick and Moore-Bick LJJ. At [96] we agreed (probably obiter) with this statement made by Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin) [2006] 1 WLR 432:

“Simple negligence in the care and treatment of a patient in hospital resulting in the patient’s death, is not sufficient in itself to amount to a breach of the state’s positive obligations under article 2 to protect life. This is stated clearly in Powell.”

That was a reference to the decision of the European Court of Human Rights (‘ECtHR’) in Powell v United Kingdom (2000) 30 EHRR CD 152. We added that it is important to note that Richards J referred to simple negligence and that the position is or may be different in a case in which gross negligence is alleged. We also added that by gross negligence we meant the kind of negligence which would be sufficient to sustain a charge of manslaughter. That may be the source of the formulation of the preliminary issue in the instant case.

As stated at [96], the reference to gross negligence came from the earlier decision of this court in the case of Khan. That was a case of a death in an NHS hospital where there was evidence that the cause of death was gross negligence on the part of those responsible in the hospital for a baby’s care. Brooke LJ, giving the judgment of the court which also comprised Waller LJ and myself, quoted a passage from the judgment of Lord Woolf CJ in this court in R (Amin) v Home Secretary [2002] EWCA Civ 390, [2003] QB 581 in which he distinguished between three classes of case:

“One class is that of allegations of deliberate killing – murder – by servants of the State. A second is that of allegations of killing by gross negligence – manslaughter by servants of the State. A third is that of plain negligence by servants of the State, leading to a death or allowing it to happen.”

The words in italics were italicised by Brooke LJ. We note in passing that both Khan and Amin went to the House of Lords but, although the decisions were reversed, nothing said in the House of Lords is relevant to the issues in this case.

We refer to those cases in order to explain the origin of the idea that gross negligence might be relevant to at least some classes of case. In the context of the instant case it is important to note that the views expressed in Khan and Takoushis as to the relevant test are not part of the decision but are obiter. So is the dictum in [108]. Takoushis was essentially about the different type of investigation required in different types of case and, in particular, the distinction between the approach of the ECtHR to cases of death in custody on the one hand and to death in an ordinary hospital on the other, the obligation to investigate in the former cases being considerably more onerous in the former by comparison with the latter. This appeal is not concerned with that distinction but we added some comments in [108] which gave rise to discussion in the instant case. We said this:

“We add only this. We do not accept Mr Fitzgerald’s submission that the principles in the custody cases, which have been analysed in some detail in the Amin [2004] 1 AC 653 and Middleton [2004] 2 AC 182 cases, apply here because Mr Takoushis would have been detained if the hospital had been aware that he was about to leave the hospital. In our opinion there is an important distinction between those who are detained by the state and those who are not. Mr Takoushis was not.”

Partly based on that dictum, Miss Richards submits on behalf of the appellant that the test in a case where the deceased was compulsorily detained in a mental hospital under section 3 of the MHA is the same as the test where the deceased was detained in a prison. In each case the deceased was not only in the care of the state but detained under compulsion and, at any rate in theory, unable to leave the hospital or prison. She submits that the test should be determined by the nature of the relationship between the deceased and the state and that there is no relevant distinction between those two classes of case. Mr Faulks QC accepts that the relationship between the deceased and the state is important but submits that the relevant comparator in a case of this kind should not be a person detained in prison but should be other patients, whether in an NHS hospital or otherwise, and submits in particular that the treatment given to mental patients under section 2 of the MHA will in very many cases be the same as that given to mental patients detained under section 3 of the MHA.

The starting point in this debate seems to us to be the decision of the ECtHR in Osman v United Kingdom (1998) 29 EHRR 245. In the recent case of In re Officer L (Respondent) (Northern Ireland) [2007] UKHL 36, [2007] 1 WLR 2135, which was again an investigation case, Lord Carswell, with whom the other members of the appellate committee agreed, observed that the Strasbourg jurisprudence has laid down the principle that article 2 covers not only the negative obligation not to take the life of another person, but imposes on contracting states the positive obligation to take certain steps towards the prevention of loss of life at the hands of others than the state. He described Osman as the locus classicus of this doctrine and quoted the key paragraphs in the ECtHR decision, namely [115] and [116] as follows:

“115.

The court notes that the first sentence of article 2(1) enjoins the state not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. 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 is thus accepted by those appearing before the court that article 2 of the Convention 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. The scope of this obligation is a matter of dispute between the parties.

116.

For the court, and bearing in mind 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, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in articles 5 and 8 of the Convention. 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."

We have put what seems to us to be the key passage, most of which was set out by the judge at [25], in italics.

It is true that Osman was not a custody case or a hospital case but a case about alleged operational failings by the police. Those principles were however applied in a custody case in Keenan v United Kingdom (2001) 33 EHRR 38, where the applicant’s mentally ill son had committed suicide in Exeter prison. At [89] the ECtHR applied the principles set out at [116] of Osman. At [90] it said this:

“90.

In the context of prisoners, the Court has had previous occasion to emphasise that persons in custody are in a vulnerable position and that the authorities are under a duty of care 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 prison authorities in respect of those detained in their custody.”

At [92] it said that in the light of those principles the court examined 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. On the facts it was held unanimously that there had been no breach of article 2 but by a majority that there had been a breach of article 3.

The ECtHR applied the same principles in a custody case in Edwards v United Kingdom (2002) 35 EHRR 19. The deceased had been killed by his cellmate. The Court held that there had been a breach of article 2 because (as it put it at [64]) of the failure of the agencies involved, namely the medical profession, the police, the prosecution and the court, to pass on information about the cellmate to the prison authorities and the inadequate nature of the screening process on the cellmate’s arrival at the prison. See also Bazorkina v Russia, application no 11562/05, 27 September 2006, which was another prison case in which the court repeated (at [104]) the statement in earlier cases that “Detained persons are in a vulnerable position and the authorities are under a duty to protect them”.

Miss Richards submits that the test in Osman and Keenan is the highest test that should be applied in the instant case. She submits that, in the application of the test to the facts of a case like this, the test must be applied flexibly, relying upon R (A) v Lord Saville of Newdigate [2002] 1 WLR 1249 and R (Bloggs) v Secretary of State for the Home Department [2003] 1 WLR 2724. There is scope for debate as to precisely how the test should be applied: see eg Re Officer L at [20] and Van Colle v Chief Constable of the Hertfordshire Police [2007] EWCA Civ 325, [2007] 1 WLR 1821, at [75-77]. However, in Re Officer L Lord Carswell accepted the test as stated by Weatherup J in Northern Ireland in Re W’s Application [2004] NIQB 67, where he said that

“”… a real risk is one that is objectively justified and an immediate risk is one that is present and continuing.”

Lord Carswell said that the test is a high test. It is not, however, necessary or appropriate for us to express a view on the question whether the test was satisfied on the facts of this case because it is common ground between the parties that, if the relevant test on the assumed facts of this case is the test in Osman, the action will have to proceed to trial, so that the way in which the test should be applied on the facts of this case is a matter for the trial judge after hearing the evidence. The essential question in this appeal is whether the test is at least that of gross negligence.

In order to resolve that question it is necessary to have regard to the relevant jurisprudence of the ECtHR, which is in a state of development. The judge referred to two such cases in the context of deaths in hospital said to have been caused by the negligence of hospital staff, namely Powell and Calvelli and Ciglio v Italy, Reports of Judgments and Decisions 2000-I, p 1. In Powell, although it was an investigation case, the ECtHR gave some consideration to the substantive obligation under article 2. It referred to Osman and a little later, in a passage quoted by the judge at [14] said this at CD353:

“The Court observes that the applicants do not in any manner allege or imply that their son was intentionally killed by the doctors responsible for his care and treatment at the material time. They aver, on the other hand, that the responsible doctors knew or can be considered in the circumstances to have known that their son’s life was at immediate risk but failed dismally to take the necessary measures to treat him. In the Court’s opinion, the reasoning employed by the applicants in support of their argument that the doctors’ inadequate response to their son’s condition at the time amounted to a breach of the State’s duty to protect the right to life cannot be sustained. The reasoning they advance is derived from the above-mentioned Osman judgment. However, the Court was addressing in that case the circumstances in which a duty may devolve on law enforcement agencies to take preventive operational measures to protect an individual whose life is at risk from the criminal acts of a third party. The issue before the Court in the instant case is an entirely different one in terms of both the context and scope of the obligation.

Admittedly, the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. (see LCB v. United Kingdom [1999] 27 EHRR 212, paragraph 36): 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 their responsibility under the positive limb of Article 2. However, where a Contracting State had 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.

In the Court’s opinion, the events leading to the tragic death of the applicant’s son and the responsibility of the health professionals involved are matters which must be addressed from the angle of the adequacy of the mechanisms in place for shedding light on the course of those events, allowing the facts of the case to be exposed to public scrutiny - not least for the benefit of the applicants.”

As the judge said at [15], in that passage the court drew a distinction between the provision of a high standard of health care for the protection of patients, and errors or negligence leading to an individual departure from that high standard. She added that it made clear that such individual departures were not sufficient to place a state in breach of its substantive obligation under article 2. The complaint was held to be inadmissible. The case has subsequently been treated, as indeed we treated it in Takoushis in agreement with Richards J in Goodwin, as supporting the proposition that simple negligence on the part of hospital personnel is not sufficient to give rise to a breach of duty under article 2.

In Calvelli the Grand Chamber of theECtHR said at [48]:

“The Court reiterates that the first sentence of Article 2, which ranks as one of the most fundamental provisions in the Convention and also enshrines one of the basic values of the democratic societies making up the Council of Europe (see, among other authorities, McCann and Others v. the United Kingdom, judgment of 27 September 1995, Series A no. 324, pp. 45-46, para.147), enjoins the State not only to refrain from the “intentional” taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B. v. the United Kingdom, judgment of 9 June 1998, Reports of Judgments and Decisions 1998-III, p. 1403, para.36).

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. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable.”

As the judge correctly said at [16], the court was again emphasising the regulatory nature of the substantive duty to protect life in the hospital context. The same is true of the earlier case of Erikson v Italy (1999) 29 EHRR 245 CD 152, which was an admissibility decision. See also Byrzykowski v Poland, application no 11562/05, 27 June 2006, at [104].

Thus far, it may be said that there is a stark contrast between the approach of the ECtHR in the custody cases and its approach in the hospital cases. That distinction is to some extent maintained but to some extent blurred in the interesting case of Tarariyeva v Russia, application no 4353/03, 14 December 2006. The facts were these. T was convicted of causing grievous bodily harm to his former girlfriend’s boyfriend that resulted in his death three days later. T was sentenced to six years imprisonment and sent to what is described as a correctional facility at Khadyzhwensk (‘K’). While he was there he became ill and was taken to the prison hospital before being returned to K where he was again unwell but treated. His conviction was quashed and a new trial ordered and he was transferred to a remand centre. One day in court he fainted and the court ordered a medical examination by doctors at the remand centre and at a local hospital, asking about his illnesses, whether he needed in-patient treatment and whether he could remain in detention. The hospital doctors said that he should remain in hospital for at least two weeks and that “he cannot be held in an investigation ward or detention facility”.

About a week later he was returned to the remand centre. Shortly thereafter he was re-convicted and again sentenced to six years imprisonment and returned to K. On his arrival all medicines were removed from him and no medical assistance was provided. However some time later he was transferred to Apsheronsk hospital, which was a civilian hospital, because of his illness. He received treatment while he was there, including surgical treatment. There was evidence, which was accepted by the court, that while he was there he was chained to the bed. Thereafter he was returned to the prison hospital. Later he underwent further surgery and died. There followed an investigation into his death.

As the court said at [68], it was alleged by T’s mother that T had died in custody as a result of inadequate and defective medical assistance. She also said that that those responsible had not been identified and punished. Both were said to be breaches of article 2, although we are concerned only with the first allegation. At [73] the court set out the now familiar principles in cases such as Keenan, again emphasising the vulnerability of those in custody. The court added at [74]:

“Those principles apply in the public-health sphere too. The positive obligations require States to make regulations compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patients' lives. They also require an effective independent judicial system to be set up so that the cause of death of patients in the care of the medical profession, whether in the public or the private sector, can be determined and those responsible made accountable (see Vo v France [GC], no 53924/00, § 89, ECHR 2004-VIII; Calvelli and Ciglio v Italy [GC], no 32967/96, § 49, ECHR 2002-I; and Powell v the United Kingdom (dec), no 45305/99, ECHR 2000-V). 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 (see Glass v. the United Kingdom, no 1827/00, § 71, ECHR 2004-II).

As can be seen, most of [74] is entirely consistent with the regulatory approach identified above but the last sentence contemplates that the acts or omissions of medical staff, at any rate at a public hospital, are capable of engaging the responsibility of the state under article 2. However, the court does not say in [74] in what circumstances article 2 would apply.

On the facts the court noted, at [81], that T was throughout in the custody and, accordingly, under the control of the Russian state. It then identified inadequacies at every stage of T’s treatment: at K, at Apsheronsk hospital and at the prison hospital. As to Apsheronsk hospital, the court held that his surgical treatment was inadequate, that no further surgery was carried out when it should have been and that he should not have been discharged by the hospital when he was: see [82-84]. In short the court held that “the medical care administered to [T] at Apsheronsk hospital was inadequate.”

The court’s overall conclusions under article 2 was as follows:

“88.

In sum, the Court has made the following findings in respect of the applicant's contention that the Russian authorities failed in their duty to protect Mr Tarariyev's right to life.

For more than two years preceding his death Mr Tarariyev had been in detention and the custodial authorities had been fully aware of his health problems. There was no consistency in his medical records, most of which were either mislaid or incomplete. At the Khadyzhensk colony he was not properly examined and did not receive any medical treatment. Although he was promptly transferred to a public hospital, the surgery performed was defective. The doctors of the Apsheronsk hospital authorised his discharge to the prison hospital in full knowledge of the post-operative complications requiring immediate further surgery. They also withheld crucial details of Mr Tarariyev's surgery and developing complications. The prison hospital staff treated him as an ordinary post-operative patient rather than an emergency case with the consequence that surgery was performed too late. Furthermore, the prison hospital was not adequately equipped for dealing with massive blood loss.

The existence of a causal link between the defective medical assistance administered to Mr Tarariyev and his death has been confirmed by the domestic medical experts and not disputed by the respondent Government.

89.

Accordingly, the Court finds that there has therefore been a violation of Article 2 of the Convention on account of the Russian authorities' failure to protect Mr Tarariyev's right to life.”

This case is of considerable interest because it shows that the state may be liable under article 2 in respect of a death caused by negligent acts or omissions by servants of a civilian hospital in the case of a prisoner, even though the duties owed by the doctors, and indeed by the hospital, to the patient would presumably be the same, so far as his or her medical care was concerned, whether the patient was a prisoner or not. Miss Richards submits that the case provides strong support for her submission that a mental patient detained in a hospital under section 3 of the MHA can be in no different position from a person detained in a prison hospital or a civilian hospital while a prisoner, as in the case of T while detained in Apsheronsk hospital. We agree that the case of T does indeed provide strong support for the appellant’s case. Moreover, as we see it, that is so even though it is true that in T the court accepted the evidence that T was chained to his hospital bed. We do not think that it would have made any difference to the court’s conclusion under article 2 if, instead of being chained to the bed, T had either been in a locked ward or had been in a locked ward but had been required by law to remain there because he was a prisoner.

We were also referred to a number of other cases including the following. In Oneryildiz v Turkey, application no 48939/99, 30 November 2004, the ECtHR was concerned with an explosion at a municipal rubbish tip which caused multiple deaths. This case shows that the principles in Osman are not limited to cases involving the police or prisoners: se eg [69-73] and [107]. So too do the cases of Abdurrahman Kilnic v Turkey application no 40145/98, 7 February 2005 and Ataman v Turkey, application 46252/99, 27 April 2006, both of which involved suicides by soldiers carrying out compulsory military service. In Kilnic K had been diagnosed with psychiatric problems which should have been identified in aptitude tests for call up. If they had been, the authorities would have known that he was a suicide risk, he would not have been designated an ordinary soldier and he would not have committed suicide.

In Ataman MA also had psychological problems but was nevertheless given access to a lethal weapon with which he killed himself. He had been in a military hospital with psychiatric problems. At [59] the court identified the question as being whether the authorities did everything they could reasonably have been expected to do, given the nature of the risk presented by MA. It concluded at [60] either that there was a failure by the hospital to inform MA’s superiors of the certificate drawn up by the psychiatric department which showed that he was presenting anxiety symptoms or his superiors were negligent if they gave him a firearm when they knew of his state of health. In both Kilnic and Ataman the court held that there was an infringement of the right to life of the deceased in breach of the substantive obligations in article 2.

We were also referred to the comparatively recent case of Angelova and Iliev v Bulgaria, application no 55523/00, 26 July 2007 but this was an investigation case, which does not seem to us to be of much assistance in the context of the substantive obligation in article 2.

The question is whether the principles in Osman apply to the facts of this case, or whether there is some higher standard of at least gross negligence. We have reached the conclusion that the answer is that the principles in Osman do apply to the assumed facts here and that it is not necessary for the appellant to establish either gross negligence or something more serious. The position of a mental patient detained by the state under section 3 of the MHA seems to us to be more akin to the position of a person detained in a prison than to that of an ordinary patient in a hospital, whether the patient is receiving treatment for problems with his or her mental health or otherwise.

Section 3 is entitled “Admission for Treatment” and provides as follows:

“3(1) A patient may be admitted to a hospital and detained there for the period allowed by the following provisions of this Act in pursuance of an application (in this Act referred to as “an application for admission for treatment”) made in accordance with this section.

(2)

An application for admission for treatment may be made in respect of a patient on the grounds that -

(a)

he is suffering from mental illness, severe mental impairment psychopathic disorder or mental impairment, and his mental disorder is of a nature or degree which makes it appropriate for him to receive medical treatment in a hospital; and

(b)

in the case of psychopathic disorder or mental impairment, such treatment is likely to alleviate or prevent a deterioration of his condition; and

(c)

it is necessary for the health or safety of the patient or for the protection of other persons that he should receive such treatment and it cannot be provided unless he is detained under this section.”

An application that a patient be detained under section 3(1) must be supported by the opinion of two doctors as prescribed by section 3(2), which it is not necessary to set out in full.

We quite understand the submission, which found favour with the judge and has been repeated in this court, that there is no distinction between the duty owed to a detained patient and to a patient who is not detained. Thus the judge said at [39] of her judgment that the nature and purpose of detention under section 3 is therapeutic and not punitive in nature. We entirely accept that that is so, since the purpose of the admission is expressed to be “for treatment”. The duty of the hospital and its doctors and staff would be properly to treat the patient. However, viewed through the eyes of the hospital, its doctors and staff, that would be true of the duty owed to a prisoner in a prison hospital, to a prisoner who is transferred to a civilian hospital (whether or not chained to the bed), to a prisoner seen by a doctor in an open prison, to a patient detained under section 3 of the MHA or to a patient with the same mental health problems who is not so detained.

The critical point is as we see it that, as the ECtHR has observed in a number of the cases, prisoners are particularly vulnerable. So too are patients detained under the MHA. Both prisoners and such patients are under the control of the state in a way in which ordinary patients are not. While, as the judge correctly observed at [41], many voluntary patients, including mental patients, are vulnerable, they are vulnerable in a rather different way from the way in which those detained by the state are vulnerable. There is no reason to think that the ECtHR would regard prisoners in an open prison as in a different position from other prisoners in this regard. Equally, we do not think that it would be right to regard those detained under section 3 of the MHA and housed in an unlocked ward in any different way from those housed in a locked ward.

At [41] the judge said that an undesirable result of having a different test for those detained under section 3 from that for voluntary patients would be that health professionals might adopt a defensive approach to the treatment of those detained under section 3. In our judgment, that conclusion is not justified. First, there is no evidence to support the conclusion. Secondly, there is no reason why it should be so. Whether or not there are different tests for the application of article 2 to these different classes of patient, that is not the position at common law. At common law, the same duty of care is owed to both. In these circumstances we are unable to accept that there is a risk of what is sometimes called defensive medicine being practised.

We have reached the conclusion that there is no reason to afford those detained under the MHA any less rights under article 2 of the Convention than those detained in a prison or prison hospital, whether closed or open. In our view the Strasbourg authorities do not support the Trust’s case that the test is at least that of gross negligence, whereas, they do give some support to the appellant’s case. That is especially so of the approach of the ECtHR in Tarariyeva v Russia. Although it was in many respects a very different case from this, the approach of the court to the failings of Apsheronsk hospital seems to us to provide some support for the appellant’s case here.

In these circumstances, we conclude that the relevant test in a case of this kind is the Osman test, which may be stated thus. In order to establish a breach of article 2, on the assumed facts the appellant must show that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self-harm and that it failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. While we would not prohibit the appellant from arguing at the trial for a lower test, we see no warrant for such a lower test, especially in the light of the decision in Re Officer L.

For these reasons we allow the appeal and set aside the declaration and the order for summary judgment in paragraphs 1 and 2 of the order of 21 December 2006. It is common ground that, in these circumstances, the action will now have to proceed to trial. We invite the parties to agree what, if any, declaration would be appropriate in the light of this decision.

This conclusion makes it unnecessary formally to rule on the question whether the judge was entitled to determine the issue discussed above as a preliminary issue. We only say that in our view she was for the reasons she gave. It also makes it unnecessary to say anything about article 14 and we do not do so.