Right to Life and Positive Obligation to Protect the Lives of Hospital Patients

Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 (10 December 2008) The House of Lords has held that, pursuant to the right to life, health authorities have an ‘over-arching obligation to protect the lives of patients in their hospitals’.  This obligation includes a duty to ensure that staff are highly trained, professional and competent and that the policies, procedures and systems in place at the hospital adequately safeguard life.

In addition to this ‘general obligation’, hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.

Facts

In July 2004, Carol Savage, who was suffering from paranoid schizophrenia, absconded from a hospital where she was being treated as an involuntary patient in an open acute psychiatric ward.  She walked about two miles to a railway station and jumped in front of a train which killed her.  An inquest jury concluded that the precautions taken to prevent her from absconding from the hospital were inadequate.

Subsequently, the daughter of the deceased, Anna Savage, brought proceedings alleging that the South Essex Partnership NHS Foundation Trust violated Mrs Savage's right to life under art 2 of the European Convention by allowing her to escape from the hospital and kill herself.  The issue before the House of Lord was the scope of the state's obligation to protect life under art 2.

Decision

Obligations imposed by the Right to Life

The House of Lords unanimously held that the right to life imposes three different duties upon the state, namely:

• a negative duty to refrain from taking life, save in exceptional circumstances – It was not suggested that this duty was broken in this case.
• a positive duty to properly and openly investigate deaths for which the state might bear some responsibility – It was not disputed that this obligation applied in this case, but it was not suggested that it was broken as there had been a proper investigation.
• a duty to take positive steps to protect the lives of those within its jurisdiction (per Baroness Hale at [76]).

This case concerned the scope of the last obligation, particularly as it applies to hospital patients.  In particular, ‘when does it extend beyond the primary duty, to have proper systems in place for protecting life, into an operational duty to protect this particular life?’ (per Baroness Hale at [76]).

General Positive Obligation to Protect Life

Outlining the scope of the positive obligation, the House of Lords held that

The State is under an obligation to adopt appropriate (general) measures for protecting the lives of patients in hospitals.  This will involve, for example, ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of working are put in place.  If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of article 2. (per Lord Rodger at [45])

Operational Positive Obligation to Protect Life

In addition to the ‘general obligation’ to protect life through proper systems, the House of Lords held that hospitals are under an ‘operational obligation’ to take all reasonable steps and measures to prevent the suicide of any patient that the hospital knows or ought to have known presents a ‘real and immediate’ risk of suicide.  ‘If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient's life’ (per Lord Rodger at para 72).  Reiterating jurisprudence of the European Court, the House of Lords stated that ‘the authorities are under an obligation to protect the health of persons deprived of liberty.  By this the Court does not mean simply an obligation to have systems in place to provide access to necessary health care, but an obligation actually to provide it’ (per Baroness Hale at [98]; see also Keenan v United Kingdom (2001) 33 EHRR 913, [110]).

Heightened Positive Obligation to Protect Life of People with Mental Illness

In considering the scope of both the ‘general obligation’ and the ‘operational obligation’ to safeguard life, the Lords affirmed the approach of the European Court which recognises the particular vulnerability of people with mental illness, holding that ‘the position of inferiority and powerlessness which is typical of patients confined in psychiatric hospitals calls for increased vigilance in reviewing whether the Convention has been complied with’ (per Herczegfalvy v Austria (1992) 15 EHRR 437, [82]).

Expanding on this, the Lords held that:

The fact that patients are suffering from mental illness is also relevant to the authorities' obligations under article 2…[I]n deciding what measures should be taken to protect the lives of patients in mental hospitals, or of patients in general hospitals who are suffering from mental illness, the authorities will have to take account of the vulnerability of these patients – including a heightened risk they may commit suicide. (per Lord Rodger at [46])

Will the Positive Obligation to Protect Life of Patients Unduly Burden Hospitals?

In response to the submission that such an approach may impose an undue burden on hospitals to safeguard the life of particular patients to the detriment of caring for other patients, the Lords stated:

That is hardly so.  The operational obligation simply means that, in these critical circumstances, priority has to be given to saving the patient's life.  That is only practical common sense, since nothing else can be done to assist the patient or to promote her recovery unless her life is saved…[W]here there is a real and immediate risk of a patient committing suicide, article 2 imposes an operational obligation on the medical authorities to do all that can reasonably be expected of them to prevent it (per Lord Rodger at [66]).

In answer to the further submission that the positive obligation to protect life may ‘encourage hospitals to be too restrictive of their patients' liberty for fear that they might commit suicide or otherwise come to harm’, the Lords held that ‘it is hard to understand how applying [this] approach in these cases can add to the hospitals' difficulties.  They already face potential liability in negligence if they fail to take reasonable care of their patients.  This test is different from and in practice more difficult to establish than negligence.’ (per Baroness Hale at [99])

The Lords went on to state that due regard must be had to ‘competing values in the Convention, in particular the liberty and autonomy rights’.  Accordingly, any steps to safeguard life ‘must be proportionate’.

Developing a patient's capacity to make sensible choices for herself, and providing her with as good a quality of life as possible, are important components in protecting her mental health.  Keeping her absolutely safe from physical harm, by secluding or restraining her, or even by keeping her on a locked ward, may do more harm to her mental health.  In judging what can reasonably be expected, the Court has also taken into account the problem of resources.  The facilities available for looking after people with serious mental illnesses are not unlimited and the health care professionals have to make the best use they can of what they have.  For all of these reasons, applying the [right to life] 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. (per Baroness Hale at [100])

The decision is available at www.bailii.org/uk/cases/UKHL/2008/74.html.

Philip Lynch is Director of the Human Rights Law Resource Centre