Human Rights and Mental Illness

Savage v South Essex Partnership NHS Foundation Trust [2007] All ER (D) 316 (Dec); [2007] EWCA Civ 1375 (20 December 2007)

The UK Court of Appeal has held that the right to life includes a positive obligation to actively safeguard life and that the negligent failure of a psychiatric hospital to take adequate steps to prevent the suicide of a patient amounted to a violation of that patient’s right to life.

Facts

In the United Kingdom, persons suffering from mental illness or impairment can be involuntarily detained for treatment under s 3 of the Mental Health Act 1983 (UK).  This case arose from the suicide of a patient detained in the psychiatric ward of theRunwellHospital, a public facility inEssex.  After a number of thwarted attempts to leave the hospital, the patient eventually succeeded, and ultimately jumped in front of a train and was killed.

The patient’s daughter, the plaintiff, commenced proceedings against the hospital in the High Court, alleging that the hospital or its employees were a public authority and had negligently failed to:

• take reasonable measures to prevent the risk of suicide; and
• properly assess the risk of the deceased absconding from the hospital,

– in breach of the deceased’s right to life under art 2 of the European Convention on Human Rights, which enshrines the right to life.  The plaintiff sought damages for breach of ss 6-8 of the Human Rights Act 1998 (UK).

The defendants applied for a preliminary determination of the proper test to establish a breach of art 2 of the Convention.  At first instance, the High Court held that the test was one of ‘gross negligence such as would be sufficient to sustain a charge of manslaughter’.  It was common ground that the plaintiff’s allegations did not amount to gross negligence, so this conclusion would have brought proceedings to an end.  The plaintiff appealed to the Court of Appeal.

The Court of Appeal allowed the appeal, concluding that, in the circumstances, the proper test was one of ordinary negligence.

Decision

The scope of the right to life

Under article 2 of the Convention, ‘[e]veryone’s right to life shall be protected by law’.  The right to life encompasses both:

• the negative obligation to refrain from the intentional and unlawful taking of life; and
• the positive obligation to actively safeguard life.

The cases on art 2 distinguish between ordinary persons, on the one hand, and persons in the custody of the State, on the other.  Article 2 requires a higher standard of care to be exercised in respect of persons detained by the state because of their special vulnerability.  Thus, to establish a breach of art 2 in the case of ordinary persons, it is necessary to establish gross negligence, while in the case of detainees, it is necessary only to establish ordinary negligence.

The threshold test

The fundamental difficulty in this case was that the deceased was neither a prisoner in the strictest sense, nor an ordinary medical patient.  The plaintiff submitted that the deceased’s position was the same as a person detained in a prison, both being in the care of the state, detained under compulsion, and unable to leave the hospital or prison.  In the hospital’s submission, the proper comparator was not persons in prison, but other patients, because the treatment would ‘in many cases’ be exactly the same as that between voluntarily and involuntarily treated patients.

Ultimately, applying Osman v United Kingdom (1998) 29 EHRR 245, the Court unanimously concluded that the deceased’s position was ‘more akin to a person detained in prison than an ordinary patient in a hospital … receiving treatment for [mental health] problems … or otherwise’.

The critical factor was the vulnerability of both prisoners and patients detained under the MHA, who ‘are under the control of the state in a way in which ordinary patients are not … [and] in a different way’.  There was no reason to afford persons involuntarily detained under the MHA ‘any less rights under article 2 … than those detained in prison’.

In response to the suggestion that health professionals ‘might adopt a defensive approach to treatment’ of involuntarily detained patients, the Court observed that, no matter what the position under the Convention, at common law, the same duty of care is owed to both.

Accordingly, the Court held that to establish a breach of art 2 the plaintiff must establish:

that at the material time the [hospital] knew or ought to have known of the existence of a real and immediate risk to the [deceased’s] life … from self-harm and that it failed to take measures within the scope of [its] powers which, judged reasonably, might have been expected to avoid that risk.

A ‘real risk’ is one that is objectively justified, and an ‘immediate risk’ is one that is present and continuing.

Implications for the Victorian Charter

Section 9 of the Charter gives effect to the right of life, to which ‘[e]very person has the right’, and, similarly to the UK Mental Health Act, the Victorian Mental Health Act allows persons to be involuntarily detained for treatment.  Assuming those responsible under the Victorian Mental Health Act are public authorities, for the purpose of the Charter, Savage gives guidance on the scope of their obligation to safeguard the life of involuntarily detained patients in their care.

Sam Porter and Merav Bloch, Human Rights Law Group, Mallesons Stephen Jaques