A recent judgment of the House of Lords (Savage v South Essex Partnership NHS Foundation Trust) has clarified the obligations imposed on health authorities by Article 2 of the European Convention of Human Rights, which protects the right to life.
Where members of staff know, or ought reasonably to know, that a patient detained in a mental hospital presents a ‘real and immediate’ risk of suicide, Article 2 imposes an operational obligation on the authority to do all that can reasonably be expected to prevent the patient from taking his or her own life.
The case concerned a patient, Carol Savage, who had for some years suffered from paranoid schizophrenia. She had been compulsorily detained, under Section 3 of the Mental Health Act 1983 (MHA), for three months when she absconded from the hospital and committed suicide by jumping in front of a train. Her daughter, Anna Savage, brought a claim against the NHS Trust on the basis that it was a Public Authority and therefore liable for a breach of her mother’s right to life.
The Trust had argued that Miss Savage would have to demonstrate that it had been guilty of at least gross negligence sufficient to sustain a charge of manslaughter to establish her claim.
In reaching their decision, the Law Lords referred to two earlier decisions of the European Court of Human Rights that dealt with complementary aspects of the Article 2 obligations on health authorities. Under Powell v United Kingdom, health authorities were ruled to have a duty to follow procedures that will protect the lives of patients in their care and to ensure that hospitals employ competent staff who are trained to a high professional standard. A failure to comply with these general obligations could be deemed a breach of Article 2. If, on the other hand, a health authority fulfils these obligations and a doctor negligently treats a patient who subsequently dies, the doctor would be personally liable in damages and the health authority would be vicariously liable for his or her negligence. There would not, however, have been a breach of Article 2.
The other case referred to, Osman v United Kingdom, dealt with the situation where, in addition to these general obligations, Article 2 imposes a further operational obligation on health authorities and their staff. This arises when staff know, or ought to know, that a patient in their care poses a real and immediate suicide risk. In such circumstances, there is an obligation to do all that can reasonably be expected to prevent the suicide. Failure to do so would not only render the authority and the culpable staff member liable in negligence but would also be a breach of the operational obligation to protect the patient’s life.
Patients detained under Section 3 of the MHA are similar to prisoners in that they are under the control of the state and thus they have similar protection under the Human Rights Act.