West Law Report

Duty to prevent suicidal patients from succeeding

Posted in House of Lords (case), Times Law Report by mrkooenglish on December 12, 2008

From The Times
December 11, 2008
Duty to prevent suicidal patients from succeeding

House of Lords
Published December 11, 2008
Savage v South Essex Partnership NHS Foundation Trust
Before Lord Scott of Foscote, Lord Rodger of Earslferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury
Speeches December 10, 2008

The right to life protected by article 2 of the European Convention on Human Rights imposed an operational obligation on medical authorities to do all that could reasonably be expected of them to prevent a patient detained in a mental hospital who was known to be at a real and immediate risk of committing suicide from doing so.

The House of Lords so held in dismissing an appeal by the defendant, South Essex Partnership NHS Foundation Trust, from the Court of Appeal (Sir Anthony Clarke, Master of the Rolls, Lord Justice Waller and Lord Justice Sedley) (The Times January 9, 2008; [2008] 1 WLR 1667) who allowed an appeal by the claimant, Anna Savage, from Mrs Justice Swift (The Times February 16, 2007) who had given summary judgment for the defendant.

Mr Edward Faulks, QC and Mr Angus McCullough for the defendant; Mr Nigel Giffin, QC and Ms Cecilia Ivimy for the Secretary of State for Health, intervening; Mr Philip Havers, QC and Ms Jenni Richards for Ms Savage; Ms Dinah Rose, QC, Mr Richard Hermer and Mr Paul Bowen for Inquest, Justice, Liberty and MIND, intervening.

LORD RODGER said that the decisions of the European Court of Justice in Powell v United Kingdom (Application No 45305/99) ((2000) 30 EHRR CD 362) and Osman v United Kingdom (Application No 23452/94) ((1998) 29 EHRR 245) related to different aspects of the article 2 obligations of health authorities and their staff to protect life. The obligations were not alternative but complementary.

In terms of article 2, health authorities were under an overarching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they might require to fulfil a number of complementary obligations.

In the first place, health authorities were required to ensure that the hospitals for which they were responsible employed competent staff and that they were trained to a high professional standard. In addition, the authorities had to ensure that the hospitals adopted systems of work which would protect the lives of patients. Failure to perform those general obligations might result in a violation of article 2.

If, for example, a health authority failed to ensure that a hospital put in place a proper system for supervising mentally ill patients and, as a result, a patient was able to commit suicide, the health authority would have violated the patient’s right to life under article 2.

Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life.

Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. That was the situation envisaged by Powell.

The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide.

There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, that was just an application of Powell.

Finally, article 2 imposed a further operational obligation on health authorities and their hospital staff. That obligation was distinct from, and additional to the authorities’ more general obligations.

The operational obligation arose only if members of staff knew or ought to have known that a particular patient presented a real and immediate risk of suicide. In those circumstances article 2 required them to do all that could reasonably be expected to prevent the patient from committing suicide.

If they failed to do that, not only would they and the health authorities be liable in negligence, but there would be a violation of the operational obligation under article 2 to protect the patient’s life. That was comparable to the position in Osman.

Lord Scott and Baroness Hale delivered concurring opinions. Lord Walker and Lord Neuberger agreed.

Solicitors: Bevan Brittan LLP; Solicitor, Department of Works and Pensions; Bindmans LLP; Bhatt Murphy.

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