Savage v South Essex Partnership NHS Foundation Trust

In a claim arising from the suicide of a patient compulsorily detained under section 3 of the Mental Health Act 1983, the substantive positive obligation under Article 2 did not impose the same test as the duty owed to a person in custody. Where the allegations concerned clinical negligence, the applicable threshold was, at least, gross negligence of a kind sufficient to sustain a charge of manslaughter. The distinction between compulsory and voluntary hospital patients did not justify a lower threshold, because detention under section 3 was therapeutic and patients remained within the ordinary health-care system. The investigatory obligation under Article 2 was distinct from the substantive obligation. The Article 8 claim, based on the same alleged clinical failures, had no real prospect of success where the Article 2 claim failed.

The claimant, the daughter of a woman who died after absconding from an open psychiatric ward, brought proceedings under the Human Rights Act 1998. The deceased had been detained for treatment under section 3 of the Mental Health Act 1983. The claim alleged breaches of Articles 2 and 8 of the Convention arising from the defendant’s alleged failure to assess and manage the risk of absconding and suicide.

The defendant applied for determination of the appropriate Article 2 legal test as a preliminary issue and sought summary judgment or strike-out. The central issue was whether the claim was governed by the gross-negligence threshold applicable to clinical negligence in hospital, or by the real-and-immediate-risk test applicable in cases involving custody, self-harm or criminal acts of third parties.

1. Preliminary issue and Article 2. The court was required to determine the legal test, rather than merely whether the claimant’s case was arguable. The substantive obligation under Article 2 was distinct from the investigatory obligation. The existence of an investigatory duty did not determine the threshold for a substantive breach.
2. Clinical negligence. Powell v UK and Calvelli and Ciglio v Italy established that the substantive obligation in the hospital context was primarily regulatory. Individual errors of judgment, negligent co-ordination or ordinary clinical negligence were insufficient. R (Takoushis) v Inner North London Coroner and Another confirmed that, at the least, gross negligence of a kind sufficient to sustain a charge of manslaughter was required.
3. Compulsory detention. Detention under section 3 of the Mental Health Act 1983 was therapeutic rather than punitive. Compulsorily detained and voluntary patients could receive the same treatment, in the same health system, under the same professional standards. Applying a different Article 2 threshold merely because a patient was detained would create unjustified distinctions and could encourage defensive treatment. The gross-negligence test therefore applied to clinical-negligence allegations concerning a section 3 patient.
4. Alternative authorities. The real-and-immediate-risk test in Osman v UK and Keenan v UK applied to different contexts, including risks from third-party criminal acts and prison self-harm. R (A and Others) v Lord Saville of Newdigate and Others and Van Colle v Chief Constable of Hertfordshire Police concerned risks created or materially intensified by State conduct and did not establish a generally lower threshold for clinical negligence.
5. Disposition. The claimant accepted that her Article 2 case could not succeed under the gross-negligence test. Summary judgment was therefore entered for the defendant on Article 2. The Article 8 allegations arose from the same clinical failures. In this context, the culpability threshold under Article 8 was the same, or virtually the same, as under Article 2. The Article 8 claim also had no real prospect of success, and summary judgment was entered for the defendant.