Savage v South Essex Partnership NHS Trust (2008) UKHL 74

This was an appeal to the House of Lords by the Health Trust against a finding that the authority owed a duty under article 2 of the ECHR (the right to life) to prevent a patient detained under s.3 MHA from committing suicide if it knew or ought to have known that there was a real risk of an attempt. S’s daughter, who had been diagnosed as suffering from paranoid schizophrenia, had committed suicide after escaping from a secure hospital under the Trust’s control, an inquest had later ruled that the actions taken by the hospital to prevent her from absconding were inadequate. S sought to claim against the Trust for consequential distress, bereavement, loss and damage. The Trust sought to establish that the ruling of the European Court of Human Rights in Osman v UK (1999) should not apply to hospital patients and that to apply this to the care of mental health clients would conflict with other obligations, particularly under article 5 (right to liberty) as it would encourage medical staff to be too cautious in restricting patients’ liberty for fear that they may commit suicide.

The House of Lords rejected the Trust’s argument, holding that article 2 did require health authorities to protect the lives of hospital patients. Firstly article 2 required the Trust to employ competent staff and adopt systems of work which would protect lives, but in addition article 2 imposed a further duty, to do what could reasonably be expected to prevent the suicide, where staff knew or ought to have known that there was a real and immediate risk of suicide. Osman and Keenan v UK (2001) applied. The Judges distinguished the case of Powell v United Kingdom (2000) which stated that ordinary medical negligence did not constitute a breach of article 2 because this related to a different aspect of article 2 obligations. The ‘operational’ obligations identified in this case required that hospital staff would need to prioritise the saving of the patient’s life over other considerations where it had identified a real and immediate risk of suicide. This was consistent and complementary with the primary obligation to protect the lives of patients and, were a hospital to fail to do, would likely face liability in negligence. The House of Lords highlighted that the test established Osman was far harder to satisfy than a case of negligence, but also recognised that resources available for the care of those with mental illness were limited. They did not believe that the identification of this operational responsibility under article 2 would mean that Trust become over cautious as it requires no more than that expected under the law of negligence. However the Lords also highlighted that s.7 of the Human Rights Act allowed for a claim to be made only by a ‘victim’ of an unlawful act or omission, thy did not believe that article 2 could be utilised to expand the class of persons who could claim for financial loss and distress where domestic law provided a remedy but limited this to the person’s estate and to their dependants.

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