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Savage v South Essex Partnership NHS Foundation Trust, Court of Appeal, 20 December 2007

11 January 2008
The issues

Human Rights Act 1998; Mental Health Act 1983 Section 2; mental patient; suicide; European Convention on Human Rights Article 2 – Right to Life.

The facts

On the 5th July 2004 Carol Savage committed suicide after absconding from Runwell Hospital where she had been detailed under Section 3 of the Mental Health Act 1983. She had a long history of mental illness and had been an in-patient on previous occasions. In March 2004 she was admitted to the hospital voluntarily but on the 17th March 2004 she was detained for the first time under Section 5(3) of the MHA and later under Section 3. She was detained for treatment for paranoid schizophrenia on an open acute psychiatric ward. She tried to leave the hospital a number of times. On the 5th July 2004 she succeeded. She walked 2 miles to the railway station at Wickford where she jumped in front of a train and was killed.

On the 1st July 2004 the daughter of Carol Savage started an action against the South Essex NHS Foundation Trust claiming damages under Sections 6, 7 and 8 of the Human Rights Act 1998 on the basis that the Trust was a Public Authority, liable for an alleged breach of Carol Savage’s right to life under Article 2 of the European Convention or for an alleged breach of her right to respect the private and family life under Article 8 of the Convention. There was no claim in negligence or under the Law Reform (Miscellaneous provisions) Act 1934 or the Fatal Accidents Act. Liability was denied by the Trust.

Shortly before Trial the Trust issued an Application asking the Court to decide, as a preliminary issue, what, on the facts alleged, was the proper test in law to establish a breach of Article 2 of the Convention. The Trust’s case was that it was necessary, at least, to establish gross negligence. The Claimant’s case was that it was sufficient to establish negligence or perhaps something less. The Judge heard the issue as a preliminary one and decided in favour of the Trust, making a declaration that in order to establish a breach of Article 2 the Claimant would be required to establish that the Trust had been guilty of, at the least, gross negligence sufficient to sustain a charge of manslaughter. On that basis, the Judge gave Summary Judgment for the Trust, vacated the Trial date and granted permission to appeal.

The Claimant appealed to the Court of Appeal.

The decision

In Osman v United Kingdom (1998) the Court had noted that the Strasbourg Court’s Jurisprudence established that Article 2 covered not only the negative obligation not to take the life of another person, but imposed on the contracting State the positive obligation to take certain steps towards the prevention of loss of life at the hands of other than the State. In Osman, which was a case involving the police, the Court rejected the view that a failure to perceive the risk of life in the circumstances known at the time, or to take preventative measures to avoid that risk, had to amount to gross negligence or wilful disregard of the duty to protect life. The Court came to the view that such a rigid standard was incompatible with the requirement of Article 1 of the Convention. It was 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 had or ought to have had knowledge, which was a question which could be answered in the light only of all the circumstances of any particular case. Other cases in the Strasbourg Jurisprudence, including Abdurrahman Kilnic v Turkey, Ataman v Turkey and Oneryildiz v Turkey showed that the principles in Osman were not limited to cases involving the police or prisoners.

The remaining question was whether the principles in Osman applied to the facts of this case or whether there was some higher standard of at least gross negligence that was relevant. The Court of Appeal reached the conclusion that the answer was that the principles in Osman did apply to the assumed facts and that it was not necessary for the Claimant 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 was more akin to the position of a person detained in prison to that of an ordinary patient in a hospital. Prisoners, as the European Court of Human Rights had observed in a number of cases, were particularly vulnerable. So too were patients detained under the MHA. Both prisoners and such patients fell under control of the State in a way in which ordinary patients were not. It would not be right to regard those detained under Section 3 of the MHA housed in an unlocked ward in any different way from those housed in a locked ward. There was 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 a prison hospital, whether closed or open. The relevant test was the Osman test. In order to establish a breach of Article 2 on the assumed facts the Appellant had to 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 had failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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