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Savage v South Essex Partnership NHS Foundation Trust, High Court, 28 April 2010

13 May 2010
The issues

Human Rights Article 2: obligation to protect right to life.

The facts

Carol Savage died in July 2004 when she threw herself in front of a train. At the time, she was a patient at Runwell Hospital. She had been detained under Section 3 of the Mental Health Act 1983. The claim was brought by her adult daughter under Section 7(1) of the Human Rights Act 1998 based on Article 2 of the European Convention on human rights. The Claimant argued that she was a victim for the purposes of Section (7) of the Act and sought a finding that the Trust was in breach of Article 2, together with just satisfaction. The claim had previously gone to the House of Lords on a preliminary issue. The House had ruled that where there was a real and immediate risk of a detained mental patient committing suicide, Article 2 imposed an operational obligation on the Authority to do all that could be reasonably expected to prevent it. That obligation arose only if members of staff knew or ought to have known that the patient presented such a risk.

The decision

The Court had to remind itself of the dangers of hindsight, which were particularly strong in a case such as this which had culminated in such a dramatic and tragic outcome.

The Defendant, though its staff, either had or ought to have had, on the evidence, knowledge available to it that: a) Mrs Savage had been assessed as a suicide risk in October 2001 and had made a significant attempt to kill herself. She had also absconded several times; b) before she had gone to her Cygnet clinic in Beckton, she had broken a window, requiring restraint;
c) whilst she was at Beckton she had tried twice to climb out of a window in apparent response to command hallucinations; d) there had been no proper risk assessment or consideration of the appropriate level of observation after her admission to Chalkwell Ward, or any review after her two expressions of suicidal ideation and her four attempts at absconding, nor any review of the consequences of any future successful attempt to abscond; e) at all times in the last two months of her detention he had known that she was impulsive, felt persecuted and was terrified, treatment resistant, was experiencing unpredictable psychotic thoughts and took the view that “anything could happen at any moment” so far as she was concerned; f) there was no basis for any conclusion that her condition was improving in any meaningful way.

It was clear therefore that the Claimant presented a real and immediate risk of absconding and that she indicated a similar risk of suicide. The Defendant had not done all that it could have reasonably have been expected to do. All that had been required to give Mrs Savage a real prospect or substantial chance of survival was the imposition of a raised level of observation, which would not have been an unreasonable or unduly onerous step to require of the Defendant in light of the evidence.

The Claimant had to show, for the purposes of Section 7 of the Human Rights Act 1998, that she was a victim, ie that she was a victim of an unlawful act. She relied on a number of cases in which relatives had been accorded the necessary standing to bring a claim based on an Article 2 violation, see Renolde v France [2008]; Edwards v UK [2002]; Kats v Ukraine [2008] and Yasa v Turkey [1998]. In those cases rights had been extended to siblings, parents, parents and son, and a nephew respectively. In the Court’s view, the Claimant was entitled to bring the claim as a victim. The deceased was her mother, to whom she was close. She was entitled to a finding and declaration that the Defendant had violated its positive obligation to protect the life of Carol Savage under Article 2 of the ECHR. The amount that the Court would grant by way of award could never compensate for the loss of her mother and could only be a symbolic acknowledgment that the Defendant ought to give some compensation. The figure for just satisfaction purposes would be assessed at £10,000.00.

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