The obligations that Article 2 of the European Convention on Human Rights (ECHR) places on NHS Trusts has been considered by the courts in two recent cases, Savage v South Essex Partnership NHS Foundation Trust and Rabone v Pennine Care NHS Trust.
Real and immediate risk
Mrs Savage was compulsorily detained under section 3 Mental Health Act 1983 (MHA). She had a long history of mental illness but she had never deliberately self harmed. She had expressed suicidal ideation on only three occasions, once in November 2001 (nearly three years before her death) and twice in April 2004. During her last admission to hospital she was under the care of the Trust from 16 March 2004 to 5 July 2004. From 29 April 2004 she was placed on general observations on an unlocked ward. She enjoyed repeated regular visits home and during these visits did not threaten or attempt self harm. Her key concern was for the safety of her family. Her suicide risk was assessed as low. On 5 July 2004 Mrs Savage left the hospital grounds and committed suicide. Her daughter, Anna Savage, pursued a claim under section 7(1) of the human rights Act 1998 (HRA). She alleged that the Trust had violated Mrs Savage’s right to life under Article 2 ECHR. A claim in negligence was not pursued.
In April 2009 the House of Lords considered the nature and scope of the Trust’s obligations under Article 2. They decided that where there is a ‘real and immediate’ risk of a detained patient, such a Mrs Savage, committing suicide, Article 2 of the ECHR imposes an operational obligation on the hospital to do all that can be reasonably expected to prevent a suicide. The obligation arises only if members of the staff knew or ought to have known that the particular patient presented such a risk. The House of Lords stressed in their decision that the threshold to breach Article 2 was a high one.
Rabone - the informal patient
Following the House of Lord’s decision in Savage the case of Rabone proceeded to trial before Mr Justice Simon. Melanie Rabone was a 24 year old lady who suffered from severe depression and anxiety. She had a history of suicide attempts. She agreed to be admitted to hospital as a voluntary patient. She was assessed as being a moderate to high suicide risk and placed on 15 minute observations whilst an in patient. Shortly after admission, a doctor allowed Melanie Rabone to return home for two days, despite concerns being raised by her mother and father about her safety. During this leave Melanie Rabone committed suicide. Her parents brought a negligence claim against the Trust and they also alleged a violation of Article 2. The Trust admitted negligence and this aspect of the case was settled pre-trial.
At trial Mr Justice Simon, taking on board the House of Lords words that the threshold to succeed in an Article 2 case was a high one concluded:
(1) On the facts there was not a real and immediate risk to Melanie Rabone’s life;
(2) She was not a patient who was detained compulsorily under the MHA and therefore Article 2 was not applicable as there was no operational duty on the Trust to take all reasonable steps to prevent her death;
(3) The Claimants, Melanie Rabone’s parents were not victims within the meaning of section 7 HRA; and
(4) If the Claimants had succeeded, the proper award would have been £1,500 for each Claimant.
The Claimants appealed to the Court of Appeal. The main focus of the appeal was whether or not it was critical to the House of Lords decision in Savage that the patient was a detained patient. The Court of Appeal upheld Mr Justice Simon’s decision and concluded that those patients who are formally detained are subject to Article 2 whereas those who are not detained i.e. voluntary patients are not. Melanie Rabone was not detained under section 3 MHA and she was not therefore detained for the purposes of Article 2. There was no operational obligation on the Trust to take all reasonable steps to prevent Melanie Rabone’s suicide. The appeal was dismissed but the Court of Appeal did go on to consider a number of other issues. In particular:
(1) If there had there been an operational duty on the Trust in Melanie Rabone’s case, it would have found that there was a real and immediate risk of suicide;
(2) The Claimants were not entitled to pursue a claim under section 7 HRA because they had already obtained ‘effective redress in so far as the law can afford redress for a loss that lies beyond the reach of financial compensation’ through the negligence claim which was settled pre-trial; and
(3) If an award of compensation had been made the Court of Appeal would have awarded £5,000 per Claimant.
Savage - the detained patient
Following the House of Lords decision in Savage, the case was referred back to the High court and came before Mr Justice McKay, who considered the substantive issues at trial. He concluded ‘There is no doubt that [Mrs Savage] presented a real and immediate risk of absconding…..As to whether that also indicated a similar risk of suicide, I am also of the view that it did. There was little or no risk of this whilst she was on the ward or at home with her family. But once she was out in the world on her own such was her psychotic state of mind it truly was the case that anything could happen at any moment and the risk of suicide must be assessed as both real and immediate’.
On the face of it Mr Justice McKay does not appear to provide any particular support for the conclusion he reaches that there was a real and immediate risk to Mrs Savage’s life. Ignoring the high threshold set by the House of Lords, he appears to have taken a Bolam approach.
Mr Justice McKay considered that the Claimant, Mrs Savage’s daughter was a victim within the meaning of section 7 HRA and awarded her £10,000.
Were do theses two cases leave us? It seems to us that the law is in somewhat of a mess. The judicial approach is inconsistent and the high threshold set by the House of Lords in Savage does not necessarily appear to have been followed. In Rabone the approach was robust with due regard given to the high threshold set by the House of Lords. The approach in Savage was more akin to a Bolam standard breach of duty.
A suicidal patient like Melanie Rabone who should have been detained cannot pursue an Article 2 claim but a detained patient like Mrs Savage (where there may or may not be forseeability of suicide) with an assessed risk that was significantly less than the risk in Melanie Rabone’s can pursue a claim.
The victim status issue is confusing. If you chose to bring a negligence claim you may not be a victim within the meaning of section 7 HRA. But if you chose to pursue an Article 2 claim, even where the option of a negligence claim is open to a party but not necessarily the Claimant, you may be a victim.
As for damages, Claimants will inevitably be seeking £10,000 in a Savage type case. Whilst the Court of Appeal indicated an award of £5,000 per party, Mr Justice McKay awarded £10,000 without any analysis or reference to Rabone.
We can only await further developments to see if the cases are appealed with the hope of establishing clarity and consistency.