Abstract
Mrs Carol Savage had been detained under section 3 of the Mental Health Act, 1983 for treatment for paranoid schizophrenia on an open psychiatric ward at Runwell Hospital, operated by the Trust. She had a long history of mental health issues with a number of inpatient admissions. Since 16 March 2004, when her final admission began, she had made various attempts to leave. On 5 July 2004, she succeeded in absconding, walked two miles to a railway station and jumped in front of a train, suffering fatal injuries.
Her daughter commenced proceedings against the Trust not in negligence, but rather alleging infringements of the Human Rights Act, 1998. Specifically, she claimed breach of Article 2 (right to life) and Article 8 (right to respect for private and family life). The Trust applied for determination of a preliminary issue, namely the proper test in law to establish a breach of Article 2, and for summary judgment.
The trial judge, Swift J, held that the test was at least one of gross negligence, i.e. such as to enable a charge of manslaughter to be brought. It was accepted by the Claimant's representatives that there had been no gross negligence in this case and therefore the claim was struck out. Further details of that decision are reported in the May 2007 issue of Healthcare and Law Digest (pages 125–6). The Claimant appealed. MIND, the mental health charity, was granted permission to make written representations.
On giving the judgment of the court, the Master of the Rolls observed that there was no English medical negligence case identifying the test for the substantive duty under Article 2. However, in R (Takoushis) v Inner North London Coroner [2006] 1 WLF 461, he had specifically approved, albeit not as part of the decision in that case, the comment of Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2006] 1 WLR 432: ‘Simple negligence in the care and treatment of a patient in hospital, resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under Article 2 to protect life.’
In Takoushis he had gone on to state: ‘In our opinion there is an important distinction between those who are detained by the state and those who are not’. Partly based on that comment, those acting for the present Claimant maintained that the same test should be adopted in this case as if the deceased were to have been detained in prison.
There had been a stark contrast between the approach of the Strasbourg court in custody and hospital cases until its December 2006 decision in Tarariyeva v Russia, where the Claimant was convicted of causing grievous bodily harm. He was sentenced to six years imprisonment at a ‘correctional’ facility. All his medicines were removed from him and no medical assistance was provided. He was for a time transferred to a civilian hospital, but on return to prison he died. It was held that the Russian state had failed to protect Mr Tarariyeva, with defective surgery at the public hospital, a return to prison despite postoperative complications, the withholding of crucial details of the surgery and inadequate medical facilities in the prison. Breach of Article 2 had been made out.
This case was of significance because it showed that the state might be liable under Article 2 in respect of a death caused by negligent acts at a civilian hospital in the case of a prisoner.
Overall, the principles laid down by Strasbourg in Osman v UK [1998] 29 EHRR 245, albeit a police case, were relevant to the present claim. The position of a mental health patient detained under section 3 of the Mental Health Act was more akin to that of a person detained in prison than to an ordinary patient in a hospital, whether that patient is receiving treatment for mental health problems or otherwise.
The critical point was that prisoners and detained patients were both particularly vulnerable. Both were under the control of the state in a way in which ordinary patients were not. Voluntary patients, including mental patients, were vulnerable in a different way from that in which those detained by the state were vulnerable. It would not be right to regard those detained under section 3 and housed in an unlocked ward in a different way from those housed in a locked ward.
The relevant test in a case of this kind was the Osman test: in order to establish a breach of Article 2, the Claimant must show that at the material time the Trust knew or ought to have known of the existence of a real and immediate risk to the life of Mrs Savage from self-harm and that it failed to take measures within the scope of its powers which, judged reasonably, might have been expected to avoid that risk. The action would therefore have to proceed to trial.
Jenni Richards (instructed by Bindmans) appeared for the Claimant. Edward Faulks QC and Angus McCullough (instructed by Bevan Brittan) appeared for the Trust. Paul Bowen and Alison Gerry (instructed by MIND) appeared for MIND.
Comment
This was a very disappointing outcome for the NHS. Sectioned patients have been linked to prisoners rather than to ‘ordinary’ patients in terms of their rights under Article 2. This can only lead to an escalation in claims against the NHS.
While there might be superficial similarities between prisoners and those sectioned under the Mental Health Act, there is surely a major distinction: the former are incarcerated at least in part for punitive reasons, whereas the latter are detained so that they may receive treatment. To equate the two is therefore arguably misleading and inappropriate. It remains to be seen if the House of Lords will be interested in hearing the issues.