Savage v South Essex Partnership NHS Foundation Trust

I heard argument in this case on Tuesday of this week, 19^th December. In view of the fact that the trial date is less than six weeks hence, the parties plainly need a judgment before the end of term. Accordingly, I have had to deliver judgment today, 21^st December.

This claim concerns the death of Mrs Carol Savage (the deceased) who died, aged 49 years, on 5^th July 2004. The circumstances of her death were tragic. At the time, she was a patient detained under s.3 of the Mental Health Act 1983 for treatment for paranoid schizophrenia on an open acute psychiatric ward at the Runwell Hospital. She had a long history of mental illness with a number of in-patient admissions. She had been an in-patient since 16^th March 2004. During her time in hospital she had made a number of attempts to leave. On 5^th July 2004 she succeeded in absconding, walked a distance of approximately two miles to the railway station at Wickford, and jumped in front of a train, which killed her.

On 1^st July 2005 the deceased’s daughter, Anna Savage (the claimant), commenced proceedings against the South Essex NHS Trust (the defendant) which was responsible for the Runwell Hospital. The proceedings were brought under the Human Rights Act 1998. The Particulars of Claim alleged that the defendant was in breach of Article 2 of the European Convention on Human Rights (the right to life) and/or Article 8 (the right to respect for private and family life) and thereby acted unlawfully under ss.6, 7 and 8 of the 1998 Act. No claim in negligence, nor under the Law Reform (Miscellaneous Provisions) Act, or the Fatal Accidents Act has been made by the deceased’s husband, daughter, or any other member of the family.

A Defence was served on 27^th January 2006 denying, inter alia, that the matters set out in the Particulars of Claim were sufficient in law to constitute a breach of Articles 2 or 8 of the Convention, or ss.6, 7 or 8 of the 1998 Act. Witness evidence was exchanged and, on 30^th August 2006, there was exchange of expert nursing and psychiatric evidence. The defendant put questions to the claimant’s expert witnesses, and those were answered on 5^th October 2006. The trial had been fixed for 29^th January 2007, with an estimated length of hearing of five days. The evidence discloses minor issues of fact only. There are, however, substantial issues about the nature and adequacy of the defendant’s management of the deceased. Allegations of clinical negligence are made, which centre on an alleged failure to take reasonable measures to prevent the risk of suicide and, in particular, a failure on the part of the hospital staff appropriately to assess the risk of the deceased absconding from the hospital. All the allegations are strenuously denied. Resolution of the various issues will depend largely upon the judge’s assessment of the expert evidence.

On 3^rd January 2006 the defendant issued the present application, seeking determination of a point of law as a preliminary issue, namely the proper test in law in order to establish a breach of Article 2 of the European Convention on Human Rights on the basis of the facts set out in the Particulars of Claim; and summary judgment pursuant to CPR Part 24 (because the defendant believes that on the evidence the claimant has no real prospect of succeeding on the claim), and/or an order striking out the claimant’s claim under CPR Rule 3.4 in relation to the claim based on a breach of (a) Article 2 or (b) Article 8.

There has been some criticism of the timing of the defendant’s application, which has given rise to a hearing only a few weeks before trial. For the defendant, Mr Angus McCullough submits that it was entirely reasonable for the defendant to wait until all the evidence had been served before making the application. Only then was it possible to decide whether an application was appropriate and, if so, to determine its scope. He points out that, even now, a successful application would lead to a substantial saving in costs and that, even if the application is unsuccessful, it would benefit both parties to know what legal test will be applied at trial and, therefore, the case that they will have to meet.

For the claimant, Mr Richard Hermer suggests that the application could have been made much earlier. However, he does not dispute the defendant’s entitlement to make it at this stage. He contends that, for reasons I shall explain, I should not determine the application now. He says that the issue of the appropriate test to be applied for the purposes of Article 2 should be decided at trial when the judge has heard all the evidence.

Article 2 is entitled “Right to life” and provides:

“(1)

Everybody's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.”

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 the case of R (Middleton) v. West Somerset Coroner [2004] 2 AC 182 (a case in which a prisoner committed suicide) Lord Bingham, delivering the opinion of the Appellate Committee, 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.”

It is well established also that Article 2(1) gives rise to an investigatory duty (sometimes referred to as a procedural, or an adjectival, duty) on the State to provide an effective investigation or scrutiny of a death, which enables the facts surrounding the death to be made known to the public and in particular, to the relatives of any victims. In Middleton, Lord Bingham said at paragraph 3:

“The European Court has also interpreted article 2 as imposing on member states a procedural obligation to initiate an effective public investigation by an independent official body into any death occurring in circumstances in which it appears that one or other of the foregoing substantive obligations has been, or may have been, violated and it appears that agents of the state are, or may be, in some way implicated.”

The present case is concerned solely with the substantive duty imposed by Article 2. It is not alleged that there has been any breach of the investigatory duty. There was a coroner’s inquest into Mrs Savage’s death which, it is accepted, discharged the State’s investigatory obligation under Article 2. In addition, there was the opportunity open to Mrs Savage’s husband and family to bring a civil claim in respect of her death.

The preliminary issue that I am asked to decide is what is the proper test in law to be applied when deciding whether there has been a breach of the substantive obligation under Article 2 in the circumstances of this case. The defendant’s contention is that the test to be applied is whether, at a minimum, there was gross negligence on the part of the hospital staff treating the deceased. It is common ground between the parties that the allegations of failures and inadequacies in the defendant’s treatment of the deceased made by the claimant would not be sufficient to constitute gross negligence. If, therefore, gross negligence were the test, the claimant’s case under Article 2 must inevitably fail.

The claimant’s contention is that, at its highest, the test to be applied should be whether the medical staff knew or ought to have known at the time of a real and immediate risk to the deceased and, if so, whether they failed to take measures that might reasonably have been expected to avoid that risk. Mr Hermer goes further and contends that the test is somewhat lower. He argues that this lower threshold cannot be precisely formulated until after the evidence has been heard.

I shall begin by considering two of the Strasbourg authorities in which Article 2 was considered in the context of clinical negligence. Powell v. UK [2000] 30 EHRR CD 362 concerned the death of a child in hospital, allegedly as a result of negligence on the part of the hospital staff. In Powell, the Court considered the distinction between the substantive obligation under Article 2 and the duty of the State to make provision for the investigation of a death which had occurred at a time when the State was responsible for the care of the individual concerned:

“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.”

It is to be noted that, in that passage, the Court also 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. It made clear that such individual departures were not sufficient to place a State in breach of its substantive obligation under Article 2.

Calvelli and Ciglio v. Italy [Judgment GC 17 January 2002] was also concerned with the death of a child in hospital, allegedly as a result of clinical negligence. At paragraph 48, the European Court, sitting as the Grand Chamber, considered the applicability of Article 2 to the circumstances of that case:

“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.”

Once again the Court was emphasising the regulatory nature of the substantive duty to protect life in the hospital context. It also drew the distinction between the substantive and the investigatory obligations under Article 2.

I come now to the recent Court of Appeal authority of R (Takoushis) v. Inner North London Coroner and Another [2006] 1WLR 46. Mr Takoushis, a long-term schizophrenic, was admitted to hospital as an emergency after he was observed apparently preparing to jump off a river bridge in an attempt to commit suicide. At hospital, he was left unattended, during which time he absconded from the hospital and succeeded in jumping into the river, as a result of which he died. Mr Takoushis’s widow alleged that the hospital had been negligent in their management of her husband. The issue in the case was the adequacy and scope of the Coroner’s inquest, i.e. whether the State had discharged its investigatory obligation under Article 2. Nevertheless, there are important references to the substantive obligation owed by the State under Article 2.

At paragraph 95, Sir Anthony Clarke, MR, giving the judgment of the Court, referred to the decision of Richards J in the case of R (Goodson) v. Bedfordshire and Luton Coroner [2006] 1WLR 432:

“Richards J expressed his conclusions derived from the Strasbourg cases as follows in the Goodson case ...:

"59.

I have not found it at all easy to analyse those four Strasbourg authorities on the application of article 2 to cases of alleged medical negligence.  The conclusions I have reached in relation to them, however, are as follows:

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 the Powell case...

Nevertheless, where agents of the state potentially bear responsibility for the loss of life, the events should be subject to an effective investigation.  Given (i) above and the general context, the reference here to potential responsibility for loss of life must in my view include a potential liability in negligence.  Thus the need for an effective investigation is not limited to those cases where there is a potential breach of the positive obligations to protect life.””

At paragraph 96, the Master of the Rolls continued:

“We entirely agree with those conclusions but add this with regard to conclusion (i).  It is important to note that Richards J refers to simple negligence.  The position is or may be different in a case in which gross negligence or manslaughter is alleged: see e.g. Regina (Khan) v Secretary of State for Health [2004] 1 WLR 971. By gross negligence we mean the kind of negligence which would be sufficient to sustain a charge of manslaughter.”

This passage makes clear first that, in the context of an ordinary patient in hospital, the test to be applied when deciding whether there has been a breach of the substantive obligation under Article 2 is, at its lowest, gross negligence. I say ‘at its lowest’ because the Court of Appeal did not express a concluded view as to whether even gross negligence would suffice. Second, the passage plainly contemplates that the investigatory duty under Article 2 may arise (and that a State may be found to be in breach of that duty) even where the circumstances would not be sufficient to give rise to a breach of the substantive obligation under Article 2, i.e. even when there is no potential breach of the substantive obligation.

The defendant’s contention is that, applying the principles set out in Takoushis to the present case, it is clear that the test to be applied is, at its lowest, that of gross negligence.

For the claimant, Mr Hermer submits that there is a highly material difference between the circumstances of Takoushis and those of this case. This difference is that, whereas Mr Takoushis was a voluntary patient, Mrs Savage was compulsorily detained under the provisions of s.3 of the Mental Health Act 1983. In support of his submission that this was an important distinction in the context of this case, Mr Hermer relied on a passage at paragraph 108 of the judgment of the Master of the Rolls:

“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] 1AC 653, and Middleton [2004] 2AC 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 difference between those who are detained by the state and those who are not.  Mr Takoushis was not.”

The submission referred to in that passage was clearly made in the context of the investigatory - rather than the substantive - obligation on a State and it seems to me that the “important difference” identified by the Master of the Rolls must be read in that context. As to the investigatory obligation, the Master of the Rolls said at paragraph 105:

“It seems to us that, however it is analysed, the position is that, where a person dies as a result of what is arguably medical negligence in an NHS hospital, the state must have a system which provides for the practical and effective investigation of the facts and for the determination of civil liability.  Unlike in the cases of death in custody, the system does not have to provide for an investigation initiated by the state but may include such an investigation.”

It may be that the investigatory duty in respect of a patient who is compulsorily detained is more onerous than that in respect of a voluntary patient, i.e. it may be akin to the duty in respect of a person in custody. However, this does not necessarily assist in determining whether a different test should be applied as between those compulsorily detained and those voluntarily detained when deciding whether a breach of the State’s substantive obligation under Article 2 has occurred.

Before proceeding to deal with the claimant’s submissions in support of the application of a different, less onerous test, it might assist if I were to set out the relevant provisions of s.3 of the Mental Health Act 1983:

“Admission for treatment:

A.

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.

B.

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.”

Mr Hermer submits that the fact that the deceased was, at the time of her absconsion and death, compulsorily detained in hospital (albeit in an open psychiatric ward) was highly significant. It meant that there was a wholly different relationship between the deceased and the State than that which would have existed if the deceased had been a voluntary patient. A patient detained under the 1983 Act loses his or her personal autonomy in much the same way as does a person in custody. Indeed, Mr Hermer argues, a patient who is compulsorily detained suffers a greater loss of liberty than does a prisoner, since the State has the power, in certain circumstances, to administer medication without the patient’s consent.

The claimant relied on the case of Osman v. UK [1998] 29 EHRR 245. This was a case in which it was alleged that the State (i.e. the police) had failed to protect the applicant and his father from attack by a third party. It was alleged that this failure gave rise to a breach of the State’s substantive obligation under Article 2:

“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.”

Keenan v. UK [2001] 33 EHRR 913 was a case in which a mentally ill prisoner committed suicide in prison. Shortly before his release, he had been given a disciplinary punishment consisting of seven days’ segregation in the punishment block and an additional 28 days’ imprisonment. His mother alleged breaches of, inter alia, Article 2 and Article 3 (prohibition of torture and inhuman and degrading treatment). In considering the application of Article 2, the Court said this:

“88.

The Court recalls 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. This involves a primary duty on the State 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 punishment of breaches of such provisions. It also extends in appropriate circumstances to 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.

89.

Bearing in mind the difficulties in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, the scope of the positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. Not every claimed risk to life therefore can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising. For a positive obligation to arise, 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 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. In this case, the Court has had to consider to what extent this applies where the risk to a person derives from self-harm.

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 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.

91.

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

92.

In the light of the above, the Court has 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.”

The Court considered that there had been no violation of Article 2 but went on to find a breach of Article 3. In considering a potential breach of Article 2, the Court examined the adequacy of the deceased’s treatment by the prison medical services, as well as the conduct of the prison authorities.

Mr Hermer submitted that, at the least, the test applied in Keenan should be applied in the present case. However, he went further and, relying on the cases of R (A and Others) v. Lord Saville of Newdigate and Others [2002] 1WLR 1249 and Van Colle v. Chief Constable of Hertfordshire Police [2006] 3A ER 963, contended for a test pitched at a lower threshold still. He relied upon the observation of the then Master of the Rolls, Lord Phillips, in Saville at paragraph 28:

“Of one thing we are quite clear. The degree of risk described as “real and immediate” in Osman v. United Kingdom 29 EHRR 245, as used in that case was a very high degree of risk calling for positive action from the authorities to protect life. It was “a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party” which was, or ought to have been, known to the authorities... Such a degree of risk is well above the threshold that will engage article 2 when the risk is attendant upon some action that an authority is contemplating putting into effect itself. It was not an appropriate test to invoke in the present context.”

This passage was in the context of a requirement by the State (in the form of a Public Inquiry) that soldiers who had been involved in the events of Bloody Sunday should return to Londonderry to give evidence to the Inquiry. The soldiers contended that the requirement exposed them to the risk of potential attack by terrorists. The circumstances of that case are very far removed from those of the present case, the most important distinction being the fact that it was an act proposed by the State itself that gave rise to the risk in Saville. That distinction is made clear in the passage I have quoted.

Van Colle concerned the murder of a witness in criminal proceedings before the start of the trial. There had been a series of threats and incidents of interference with witnesses and witness intimidation involving the deceased, but the police had taken no action to protect him. At paragraph 56 of her judgment, Cox J reviewed the principles which emerged from the authorities. In doing so, she said:

“Where it is the conduct of the state authorities which has itself exposed an individual to the risk to his life, including for example where the individual is in a special category of vulnerable persons, or of persons required by the state to perform certain duties on its behalf which may expose them to risk, and who is therefore entitled to expect a reasonable level of protection as a result, the Osman v. UK threshold of a real and immediate risk in such circumstances is too high. If there is a risk on the facts, then it is a real risk, and “immediate” can mean just that the risk is present and continuing at the material time, depending on the circumstances. If a risk to the life of such an individual is established, the Court should therefore apply principles of common sense and common humanity in determining whether, in the particular factual circumstances of each case, the threshold of risk has been crossed for the positive obligation in article 2 to protect life to be engaged.”

Again, the feature which gives rise to the lower threshold is the fact that it is the conduct of the State authorities (i.e. the decision to call the deceased as a prosecution witness) which gave rise to the existence of the risk in the first place. Mr Hermer places reliance on the words, “including for example where the individual is in a special category of vulnerable persons.” He suggests that this means that the mere fact of membership of such a “special category”, without the State’s conduct having given rise to the risk, would be sufficient to engage the lower threshold. That is not my understanding. It seems to me that the Judge was referring to the possibility that both circumstances might co-exist. In Van Colle, the Judge found that it was the deceased’s position as a prosecution witness who had been threatened and intimidated by a defendant, and who was therefore at some special and distinctive risk from harm that gave rise to his membership of a “special category.”

It seems to me, therefore, that the cases relied upon by the claimant in support of the applicability of a lower threshold test from that applied in Osman and Keenan are wholly different from the circumstances of the present case. Any risk to Mrs Savage would have arisen from her own medical condition and not by reason of any action on the part of the State. I agree with Mr McCullough, that the appropriate test for the applicability of the substantive obligation under Article 2 in the claimant’s case is either that propounded in Takoushis, or that applied in Osman and Keenan.

Mr Hermer relies on the cases of Saville and Van Colle in support of his contention that decisions about the appropriate threshold to be applied in a particular case are fact-sensitive, and should not be determined in advance of trial. In Saville, the Court of Appeal adopted a balancing exercise (see paragraph 31) which, it believed, accommodated both the requirements of Article 2 and the common law requirement that the procedure should be fair. That balancing exercise depended heavily on the unique facts of that case. In Van Colle, Cox J identified, in the passage I have quoted, the test to be applied. It was the determination of whether or not the relevant threshold had been passed that was dependent on the facts of that case.

There will always be individual cases, unique on their facts, which will require special consideration in order to determine the appropriate test to be applied when deciding whether a breach of the substantive obligation under Article 2 has occurred. However, there are categories of case where the courts have laid down the appropriate test to be applied. In Takoushis, the test in the context of a patient being treated in hospital was said to be, at the least, gross negligence. Moreover, that test was clearly intended to be applicable whether the allegation was one of incompetent treatment or lack of treatment (Powell, Calvelli) or failure to protect from suicide (Takoushis). Keenan established that the test in the context of a prison suicide was “real and immediate risk to life” and a failure to take reasonable measures to avoid that risk. That same test is appropriate where the State authorities knew or ought to have known of a risk to an individual arising as a result of the criminal acts of a third party. There seems no reason in principle why a test governing the applicability of the substantive obligation under Article 2 in the case of a patient compulsorily detained in a hospital under s.3 of the 1983 Act should not be established. Indeed, it is highly desirable for the sake of consistency and certainty that it should. The test itself would not be fact-sensitive. The question of whether or not the relevant threshold had been passed certainly would be.

I therefore reject Mr Hermer’s contention that consideration of the test to be applied in this case should be left until trial when the full facts are known. In reaching my decision, I shall not be determining any issue of fact. It is accepted by the claimant that, if the gross negligence test is applicable then, even on her own case, the claim must fail. If the real and immediate risk test is adopted, the claim will proceed. Nor do I accept that it is inappropriate to determine the test to be applied because this is a developing field of law. It is precisely because the field is developing that such a determination is required. If, as I consider to be the case, the issue can properly be determined in advance of the trial, it is plainly in the interests of all that this should be done.

The application before me is for determination of a preliminary issue of law and, in the light of my determination, for summary judgment and/or strike out. I do not accept the claimant’s contention, that in considering the preliminary issue of law, the test I should apply is whether the claimant’s contentions are arguable. Rather, I must determine as a point of law the test to be applied in connection with a breach of Article 2 and, having done that, move on to consider the consequences for the claim.

In submitting that I should adopt the Osman/Keenan test, rather than the test of gross negligence, Mr Hermer relies on what he described as the ‘unique vulnerability’ of a person who is deemed to be so incapable of looking after himself or herself that he or she requires detaining under s.3 of the 1983 Act. He points out that one of the requirements of s.3(2) is that it is necessary for the health or safety of the patient, or for the protection of other persons, that he should receive such treatment which cannot be provided unless he is detained under the section. In this case, there was no question of other people being at risk. Detention was considered necessary for the deceased’s own health and safety. Therefore, Mr Hermer says, the very reason for depriving the deceased of her liberty was to protect her from harm. All these factors, he argues, support his contention that the test to be applied should be that applicable to persons in custody. He argues in addition that there is no difference between deprivation of liberty as a result of the sentence of a criminal court and deprivation of liberty under s.3 of the 1983 Act. Indeed, there may be a greater loss of liberty under s.3, because of the power to administer medication without consent. He says that it would be contrary to public policy if the threshold to be satisfied in order to establish a breach of the substantive obligation under Article 2 were lower for a prisoner than for a person detained under s.3. The crucial issue, he says, is the fact that control of that individual has passed from the individual to the State.

For the defendant, Mr McCullough submits that it is necessary to consider the context and purpose of a person’s detention. The focus of s.3 is not punitive, as is a prison sentence, but therapeutic in nature. The purpose of the detention is admission for treatment which “is likely to alleviate or prevent a deterioration of” the patient’s condition. There may or may not exist some threat to the safety of the patient or other persons, but there must be a mental condition of the appropriate nature and severity and the condition must be likely to be amenable to treatment. The judgment as to whether any threat to safety exists is made before detention and treatment take place.

Mr McCullough points out that the conditions of detention can be very variable. At one end of the spectrum, there may be a significant loss of liberty. At the other end, regular periods of unsupervised leave of absence from hospital and daily visiting by family and friends may be permitted. The regime put in place is capable of being adapted to suit a patient’s therapeutic needs. There is a range of safeguards provided by the 1983 Act. These features are, he argues, very different from the conditions which operate in prison.

Mr McCullough submits that the clinical issues and judgments involved in the treatment of patients detained under the 1983 Act are precisely the same as those involved in the treatment of voluntary patients. Moreover, he points out that, as in the present case, a patient detained under s.3 is frequently treated on a ward alongside voluntary patients. It would, he says, be surprising if, for the purposes of Article 2, there was a distinction in the duty owed to the two categories of patients.

Mr McCullough points out that many patients in hospital are acutely vulnerable. The patients in the cases of Powell and Calvelli were young children. Patients are often so ill as to be entirely dependent on the professionals treating them. He submits that there are also policy considerations akin to those identified in the case of Osman, namely the complexities involved in organising a public health service and, in particular, in dealing with mental health cases. He argues that there are good policy reasons why the principle identified in the case of Powell (see the passage quoted earlier in this judgment) should be applicable also in a case involving a patient detained under s.3 of the 1983 Act.

In determining whether or not the same test for breach of the State‘s substantive obligation under Article 2 should be applied when a person is detained under s.3 as when a person is in police or prison custody, it is, in my view, crucial to consider the context in which the detention occurred. The nature and purpose of detention under s.3 is therapeutic, not punitive, in nature. Protection of the individual detained, or of other persons is only one consideration to be taken into account.

Once a patient is detained, the objectives of treatment will be the same as those for a voluntary patient. There may be little or no difference in the nature and severity of the conditions afflicting the two types of patient. They may be receiving identical forms of treatment. The clinical issues and judgments for the professionals responsible for their care will be similar in nature. Those issues and judgments will inevitably raise particular difficulties in some cases, because of the problems associated with cases of mental illness. Both types of patient will be treated within the same health system, governed by the same State regulations and standards identified in the cases of Powell and Calvelli as being required to meet the substantive obligation under Article 2. The health system will have to make operational choices in terms of priorities and resources to which both types of patient will be subject.

The application of s different test as between the two types of patient to be applied when determining whether a breach of the substantive obligation under Article 2 has occurred would, as Mr McCullough points out, result in surprising distinctions as between patients being treated side-by-side on the same ward. An undesirable result of this may be that health professionals would adopt a ‘defensive’ approach to the treatment of patients detained under s.3, which might result in greater restriction of those patients’ liberty than would otherwise be the case. It seems to me that, despite the fact that detention under s.3 involves a loss of liberty, the similarities between the position of a patient who is compulsorily detained and that of many voluntary patients is greater than between a patient who is compulsorily detained and a person in custody. Many people who are seriously ill are effectively confined to hospital whether they wish to be there or not, and are wholly dependent on the skills of the professionals responsible for their care. Many, including those with mental illness, are highly vulnerable.

All these considerations lead me to the conclusion that the proper test in law applicable to a breach of the substantive obligation under Article 2 in respect of a patient detained in hospital under s.3, where the relevant allegations are allegations of clinical negligence, is that referred to at paragraphs 95 and 96 of Takoushis, namely at the least gross negligence of a kind sufficient to sustain a charge of manslaughter. I make clear that my conclusion relates only to cases where the allegations are of clinical negligence. Other types of allegation would, or may be, subject to wholly different considerations.

It does not seem to me that the fact that the death of a person detained under s.3 does, or may, give rise to the obligation (as with a death in custody) for the State to initiate an investigation into the death is necessarily inconsistent with my approach to the substantive obligation under Article 2. Takoushis makes clear that the existence and scope of the investigatory obligation under Article 2 is to be considered independently from that of the substantive obligation.

In the light of my finding on the preliminary point of law, it follows that the claimant has no real prospect of succeeding on the issue of breach of Article 2 and, there being no other compelling reason why the issue should be disposed of at trial, I give summary judgment to the defendant on that issue.

That leaves the claimant’s case relating to breach of Article 8. In the Particulars of Claim it is alleged that the defendant was in breach of Article 8, in that it failed to take adequate steps to protect the deceased from the risk that she would either abscond and come to serious harm or cause harm to herself (paragraph 12) and, at paragraph 14:

“i)

The Defendant failed to maintain a proper system of observations in relation to the Deceased;

The Defendant failed to maintain proper physical security for a patient in the Deceased’s condition;

The Defendant permitted the Claimant (sic) to abscond from hospital unobserved;

The Defendant failed to carry out proper risk assessments of the Deceased.”

In its Defence, the defendant sought further particulars of the allegations relating to Article 8. Those particulars have not been supplied, although Mr Hermer has indicated that, if a detailed request is made, particulars will be provided. At the hearing, the defendant submitted that no basis for any claim for breach of Article 8 was apparent from the pleaded facts or the served evidence. The claimant relied on the case of Van Colle, in which Cox J found that, in addition to a breach of Article 2, there was also a breach of Article 8. At paragraph 58 of her judgment, she quoted a passage from the judgment of Lord Woolf CJ, in Anufrijeva and Others v. Southwark London Borough Council [2004] QB 1124, in which he said:

“...in considering whether the threshold of art 8 has been reached it is necessary to have regard both to the extent of the culpability of the failure to act and to the severity of the consequence. Clearly, where one is considering whether there has been a lack of respect for art 8 rights, the more glaring the deficiency in the behaviour of the public authority, the easier it will be to establish the necessary want of respect. Isolated acts of even significant carelessness are unlikely to suffice.”

Cox J went on to say, at paragraph 59:

“There is in this respect an obvious overlap between arts 2 and 8. If the state authorities are found to have failed to comply with their obligation under art 2 to protect an individual’s life it is almost inevitable that they would also be in breach of their positive obligation under art 8 to safeguard that individual’s physical integrity and family life, although the questions to be determined are different and the emphasis is on the culpability of the authorities.”

Mr Hermer argues that the Article 8 claim would survive even if the Article 2 claim was struck out. He says that the threshold for Article 8 is lower than that for Article 2 so that, even if the gross negligence (inaudible) were applicable to Article 2, the claimant might succeed in establishing a breach of Article 8. He did not suggest precisely what the lower threshold might be. He did say that, were the Article 2 claim to be struck out, it would be necessary for the claimant’s advisors to review the strength of her claim before deciding whether or not it was proper to proceed to trial.

Mr McCullough submits that, while it is evident that a breach of Article 2 might necessarily lead to a disruption of family life and therefore to a violation of Article 8, it is difficult to see how, in the circumstances of the present case, a breach of Article 8 could exist in the absence of a breach of Article 2. I agree with that analysis. It seems to me that the test of culpability referred to by Lord Woolf must, in the context of clinical negligence, be the same -- or virtually the same -- as that for a breach of the substantive obligation under Article 2. I was referred to no authority in which a claim in respect of Article 2 had failed, but a claim under Article 8 had succeeded.

In all the circumstances I take the view that the claim under Article 8 has no real prospect of success. Since there is no other compelling reason why the case should be disposed of at trial, I give summary judgment on that issue also for the defendant.