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

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:

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:

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:

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:

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:

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:

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

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:

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]:

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]:

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:

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:

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

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.