Savage v South Essex Partnership NHS Foundation Trust

The House of Lords held that Article 2(1) of the European Convention on Human Rights imposes both general/state-wide obligations on health authorities to put in place systems to protect patients' lives and, in well-defined circumstances, an additional "operational" duty to take steps in relation to a particular detained patient when there is a "real and immediate" risk to life which the authorities knew or ought to have known. The court rejected the submission that Powell v United Kingdom precluded any operational duty in the healthcare context, but emphasised that ordinary medical negligence will not by itself engage Article 2 where proper systems and investigations exist.

Accordingly, where a detained psychiatric patient presents a real and immediate suicide risk, hospital staff and authorities must do all that can reasonably be expected to prevent that risk; whether that threshold is met and what measures were reasonably required are matters for trial. The appeal was dismissed and the claim may proceed to trial.

Background and parties:

• Mrs Carol Savage, detained under section 3 of the Mental Health Act 1983 in an open acute ward, absconded and committed suicide. Her adult daughter, Anna Savage (the respondent), brought proceedings under section 7 of the Human Rights Act 1998 alleging a breach of her mother's Article 2 rights by the South Essex Partnership NHS Foundation Trust (the appellants). The husband, who might have brought conventional domestic claims, chose not to do so.

Procedural history:

• Swift J in the Queen's Bench Division struck out the action ([2006] EWHC 3562 (QB)).
• The Court of Appeal allowed the claimant's appeal and ordered a trial ([2007] EWCA Civ 1375).
• The Trust appealed to the House of Lords, which dismissed the appeal ([2008] UKHL 74) and directed that the matter proceed to trial on the facts.

Issues framed:

• Whether and in what circumstances Article 2 imposes an operational duty on hospital authorities and staff, distinct from the general obligation to establish systems and standards of care.
• Whether the test derived from Osman (the "real and immediate" risk and failure to take measures reasonably expected) applies to detained psychiatric patients, or whether Powell precludes such an operational duty in healthcare cases.
• Whether the respondent had locus standi to bring proceedings under section 7 of the Human Rights Act 1998 (raised but not determinatively decided).

Court's reasoning:

• The Lords reviewed Strasbourg jurisprudence (including Osman, Keenan, LCB, Powell and others) and concluded the principles are complementary: general systemic obligations coexist with an operational duty that is triggered when staff know or ought to know of a "real and immediate" risk to an identified individual.
• Powell does not exclude the operational duty where a detained patient presents a real and immediate suicide risk; Powell concerned ordinary medical error where staff were engaged in treatment and there was no such immediate risk.
• Mental health patients detained under the Mental Health Act are vulnerable and under state control; therefore the Osman/Keenan operational test applies a fortiori to detained psychiatric patients. The threshold for that duty is high and its satisfaction is a question of fact for trial.
• The court also observed, without finally deciding, doubts about the respondent's standing to seek purely vindicatory damages as a non-dependant, but allowed the article 2 questions to proceed to trial.

Relief sought:

• Just satisfaction under Article 41 (including damages) for an alleged breach of Article 2 and an asserted breach of Article 8; the principal contested issue concerned Article 2.

Appeal dismissed. The House of Lords held that Article 2 imposes both general obligations on health authorities to have systems protecting patients' lives and an additional operational duty, in line with Osman/Keenan, to take reasonable steps to avert a "real and immediate" risk to a detained patient's life where that risk is known or ought to be known; Powell does not preclude such an operational duty in the detained patient context. Whether the threshold is met and what reasonable measures were required were matters for trial.

First instance: Swift J struck out the action in the Queen's Bench Division ([2006] EWHC 3562 (QB)). Court of Appeal: the claimant's appeal was allowed and a trial ordered ([2007] EWCA Civ 1375). House of Lords: appeal by the NHS Trust dismissed ([2008] UKHL 74).