Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate)

Article 2 of the European Convention on Human Rights imposes complementary duties on public health authorities. They must maintain competent staff, professional standards and systems capable of protecting patients’ lives. An isolated clinical error or act of negligence does not itself breach article 2 where those general duties have been fulfilled.

For a compulsorily detained psychiatric patient, an additional operational duty arises where staff know or ought to know of a real and immediate risk of suicide. They must then do all that can reasonably be expected to prevent that risk. This is a more demanding test than ordinary negligence. Reasonableness includes proportionality, therapeutic welfare, personal autonomy, competing Convention rights and available resources.

Mrs Carol Savage, who suffered from paranoid schizophrenia, was compulsorily detained at Runwell Hospital under section 3 of the Mental Health Act 1983. She absconded from an open psychiatric ward and took her own life. Her daughter brought proceedings under section 7 of the Human Rights Act 1998, alleging that the NHS trust had breached her mother’s right to life under article 2 of the European Convention on Human Rights.

Swift J held that the alleged conduct had to amount at least to gross negligence capable of sustaining a manslaughter charge and 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 central issue was whether the operational duty derived from Osman v United Kingdom and Keenan v United Kingdom applies to a compulsorily detained psychiatric patient, or whether ordinary medical negligence falls exclusively within the approach in Powell v United Kingdom.

1. Appeal dismissed unanimously. Lord Rodger of Earlsferry and Baroness Hale of Richmond delivered the principal speeches and adopted the same test. Lord Scott of Foscote agreed with their reasons, while Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury expressly agreed with both opinions. The claimant’s action was permitted to proceed to trial.

2. Per Lord Rodger and Baroness Hale, article 2 of the European Convention on Human Rights imposes an overarching duty on public health authorities to protect patients’ lives. This includes general duties to employ competent staff, maintain high professional standards and establish suitable systems of work. A failure in those systems may violate article 2. Where adequate systems exist, an isolated error of judgment, negligent treatment or negligent co-ordination does not by itself establish a substantive violation. The approach in Powell v United Kingdom (2000) 30 EHRR CD362 was approved to that extent.

3. Per Lord Rodger and Baroness Hale, those general duties are complemented by an operational duty towards a particular compulsorily detained psychiatric patient. The duty arises where hospital staff know or ought to know that the patient presents a real and immediate risk of suicide. They must then do all that can reasonably be expected of them to prevent that risk. The principles in Osman v United Kingdom (1998) 29 EHRR 245 and Keenan v United Kingdom (2001) 33 EHRR 913 therefore apply in this setting.

4. Powell v United Kingdom did not establish that medical staff could never owe an operational duty. It concerned the treatment of a naturally occurring illness and ordinary medical negligence. It did not govern a known real and immediate risk that a detained patient would take her own life. The systemic and operational duties were complementary rather than mutually exclusive.

5. The operational threshold is high and is more difficult to establish than ordinary negligence. The required response must be assessed proportionately. Relevant considerations include the patient’s autonomy, liberty, therapeutic welfare, the potentially harmful effects of excessive restriction, competing Convention rights and finite resources. Whether the risk existed and whether further restrictions or supervision were reasonably required were matters for trial.

6. Baroness Hale left open the position of informal patients, patients deprived of liberty by their condition, patients on leave and persons generally at immediate risk of self-harm. Lord Scott separately doubted whether the claimant qualified as a “victim” of the alleged substantive breach for the purposes of section 7 of the Human Rights Act 1998. Standing was outside the preliminary issue and also remained for determination at trial.

1. House of Lords: In Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellate) [2008] UKHL 74, the House unanimously dismissed the NHS trust’s appeal and held that the action should proceed to trial.
2. Court of Appeal: In [2007] EWCA Civ 1375, the court allowed the claimant’s appeal, set aside the striking-out decision and ordered a trial.
3. High Court: Swift J held that the applicable threshold was at least gross negligence capable of sustaining a manslaughter charge and struck out the action: [2006] EWHC 3562 (QB).