Jo Easterbrook and Julie Charlton on the House of Lords' judgment on Savage.
In an important case for health professionals, the House of Lords has provided useful guidance on the nature and extent of the obligation under Article 2 (The Right to Life) in the provision of healthcare. Bevan Brittan LLP was instructed by the NHSLA to represent the Appellant, South Essex Partnership NHS Foundation Trust.
The judgment on 10 December 2008 in the case of Savage v South Essex Partnership NHS Foundation Trust, confirms that where a patient is detained under the Mental Health Act and there is a “real and immediate risk of suicide” the positive obligations of Article 2(1) include a requirement to take operational steps to prevent that harm. As such, a right to bring a claim under the Human Rights Act 1998 will arise. The case concerns a compulsorily detained patient with a long history of mental illness who was cared for on an open acute psychiatric ward and had periods of leave outside the hospital. She absconded from the hospital and committed suicide. Her daughter brought proceedings under the Human Rights Act 1998 alleging that the hospital had violated her mother’s right to life under Article 2. No claim was brought in negligence under either the Law Reform (Miscellaneous Provisions)Act 1934 or the Fatal Accidents Acts. The Trust denied liability and sought a determination as a preliminary issue of the proper test to establish a breach under Article 2. Relying on Powell v United Kingdom, the court found that in the absence of gross negligence (and it was conceded that there had been no gross negligence) the claim must fail because the obligations arising from Article 2 did not require health authorities to take operational measures to prevent the harm. In other words, a negligent error by a nurse or clinician was not sufficient to trigger a breach of Article 2.
The appellate courts disagreed and the House of Lords found that in this case, the current thrust of the Strasbourg jurisprudence favoured the view taken in Osman v United Kingdom(1998) that Article 2 implied “in certain well defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual” and that such circumstances would include those detained under the Mental Health Act 1983. Referring to the case of Keenan where a prisoner in custody committed suicide, Baroness Hale noted that “the authorities are under an obligation to protect the health of persons deprived of liberty” and that does not mean simply an obligation to have systems in place to provide access to necessary healthcare, but an obligation to provide it.
In accordance with what is known as the Osman test, that obligation will only arise where there is “a real and immediate risk of suicide”. The threshold is noted to be high and more difficult to establish in practice than ordinary negligence. However, if triggered, then Article 2 requires staff to do all that can reasonably be expected to prevent the patient from committing suicide.
As to how the obligation may be interpreted in practice, there is some helpful guidance and perhaps reassurance to those concerned that it might lead to greater restrictions on patients’ liberty. The steps taken by the hospital should be proportionate, balancing Article 2, with the rights of liberty and autonomy in Articles 5 and 8, and taking into account the therapeutic objectives of the detention and the resources available. Baroness Hale concluded that “Applying the Osman/Keenan approach in this context should not persuade the professionals to behave any more cautiously or defensively than they are already persuaded to do by the ordinary law of negligence”.
Having established the appropriate test, this particular case can now proceed to a trial on its merits. However, this is a developing area of law and further case law will undoubtedly follow which will define the nature and extent of the Osman/Keenan test in the health context.