Savage v South Essex Partnership NHS Foundation Trust & Anor

Article 2 requires the state to take reasonable operational measures to protect a person whose life is at real and immediate risk and whose risk the authorities knew or ought to have known. The Osman test applies where a mental-health patient is compulsorily detained under section 3 of the Mental Health Act 1983. Such a patient is under state control and is more akin to a prisoner than an ordinary hospital patient. The claimant need not prove gross negligence or conduct sufficient for manslaughter. Whether the test is satisfied remains fact-sensitive and, on the assumed facts, required a trial.

Carol Savage was detained for treatment under section 3 of the Mental Health Act 1983. She absconded from hospital and died by suicide. Her daughter brought a claim against the Trust under sections 6, 7 and 8 of the Human Rights Act 1998, alleging breaches of articles 2 and 8 of the Convention. No common-law negligence claim was brought.

Swift J determined as a preliminary issue that Article 2 required proof of at least gross negligence sufficient to sustain manslaughter. She declared that requirement, entered summary judgment for the Trust and vacated the trial. The appeal concerned whether that test could be determined before trial and whether gross negligence, rather than the Osman test, was required. MIND intervened and relied on Article 14.

1. Appeal allowed. The declaration requiring proof of gross negligence and the summary judgment were set aside. The action was to proceed to trial.
2. Article 2 imposes a substantive positive obligation to safeguard life. The operational test stated in Osman v United Kingdom (1998) 29 EHRR 245 requires the claimant to show that the authorities knew or ought to have known of a real and immediate risk to the life of an identified person and failed to take measures within their powers which, judged reasonably, might have been expected to avoid it. The question is fact-sensitive.
3. The gross-negligence formulation originated in observations in R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129 and R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440. The observations concerning the relevant test were obiter and did not establish a requirement of gross negligence. The hospital cases, including Powell v United Kingdom (2000) 30 EHRR CD 152 and Calvelli and Ciglio v Italy Reports of Judgments and Decisions 2000-I, concerned the regulatory obligation and ordinary treatment errors. They did not govern the position of a person detained by the state. Tarariyeva v Russia application no 4353/03 strongly supported applying Article 2 to negligent medical care affecting a prisoner in a civilian hospital.
4. A patient detained under section 3 of the Mental Health Act 1983 is particularly vulnerable and under state control, like a prisoner. That remains so whether the ward is locked or unlocked. The therapeutic purpose of detention and the common-law duty of care do not remove the distinct significance of compulsory state detention for Article 2.
5. The court did not decide whether the Osman test was satisfied on the assumed facts. It considered that the preliminary legal issue could be determined, but that point required no formal ruling. Article 14 was left undecided.

• Court of Appeal (Civil Division): [2007] EWCA Civ 1375. Appeal allowed; the declaration and summary judgment were set aside and the action was to proceed to trial.
• Queen’s Bench Division: Swift J held that Article 2 required proof of at least gross negligence sufficient to sustain manslaughter, made a declaration to that effect, entered summary judgment for the Trust and vacated the trial date.