Abstract
This case had been to the House of Lords in December 2008 for a ruling on the circumstances in which the death of a sectioned patient might engage Article 2 of the European Convention on Human Rights. The decision of the House is reported in the March 2009 issue of Healthcare and Law Digest (Clinical Risk 2009;
Mrs Savage met her death on 5 July 2004 by throwing herself in front of a train. She was 50 years of age and left a husband and two children. This claim was brought by her adult daughter under Article 2 (right to life), who alleged that she was a ‘victim’ for the purposes of section 7 (7) of the Act.
The House had ruled that where there is a ‘real and immediate risk’ of a detained mental patient committing suicide, the hospital authority has an operational obligation to do all that can reasonably be expected of it to prevent death. However, that obligation arises only if members of staff knew, or ought to have known, that the particular patient presented such a risk. The threshold required for the Claimant to surmount is a high one, higher than in the familiar Bolam test in clinical negligence cases.
The deceased had a long history of mental illness, dating back to the late 1970s. For example, between October 2001 and April 2002 she had been detained under Section 3 and had been recorded as being at risk of suicide or self-harm. She was diagnosed as having paranoid schizophrenia.
The same diagnosis was reached in April 2004, following detention under Section 3 in March. On 29 April she was reported as saying ‘I would harm myself if I could’. At this point, she was receiving 30-minute observations.
On 30 April, her consultant psychiatrist agreed daily leave for a maximum of six hours, Mrs Savage being returned to the ward nightly by her husband.
On 16 May, she was observed to be leaving the ward with her suitcase and agreed to come back when staff stopped her. A similar occurrence took place on 18 May. She was assessed as having a significant risk of absconding.
On 27 May, a further risk assessment indicated a low risk of suicide but with a history of absconding. However, this assessment was described as ‘incomplete, inaccurate and worse than useless’ by the Judge.
On 28 May, Mrs Savage made another attempt to leave hospital and this pattern continued over the following days. Through June, Mrs Savage was granted further home leave but this was terminated by a junior psychiatrist who considered that the patient was still showing clear signs of paranoid schizophrenia.
The junior doctor granted leave on 3 July, and on 4 July the nursing assessment was that Mrs Savage ‘poses no management problems at the moment’. The following day she was killed at the local railway station, having taken about 50 minutes to cover the two miles from the hospital.
Mackay J concluded that there was no documented risk assessment for Mrs Savage worthy of the name from the time she arrived at Chalkwell Ward on 29 April 2004 until that of her death, nor any risk management or care plan.
The expert psychiatrist called on behalf of the Claimant, Dr Walsh, believed that the diagnosis of paranoid schizophrenia was incorrect and misleading, and that the correct diagnosis was schizo-affective disorder. She concluded that significant parts of the deceased's symptoms were never treated in a proper way. She thought that the history-taking and recording of treatment were both inadequate, and that the psychiatric history appeared to have been unknown to those who were treating Mrs Savage. She also criticized the decision to grant home leave.
Held: The recommendation of 30-minute observations was ignored. However, the criticism of granting home leave was unjustified because this caused the deceased no harm, and probably did her good. Granting home leave did not exacerbate Mrs Savage's mental state.
The defence psychiatric expert, Dr Turner, was a ‘measured and careful witness’. He accepted the diagnosis of paranoid schizophrenia. He agreed that there was a real and immediate risk of absconding, but considered that the deceased's attempts to leave the ward in May and June 2004 were for the simple purpose of going home. He did not accept that there was a real and immediate risk of suicide.
Professor Rogers was the nursing expert called by the Claimant. His criticisms of the nursing staff's approach to recording the administration of drugs were exposed by defence counsel as unfounded. However, he also criticized the lack of risk assessments, and considered that the risk of absconding had become high by the time of Mrs Savage's death.
Dr Carter was the defence nursing expert. His view was that there was no real and immediate risk of suicide. Mrs Savage had had copious opportunities to harm herself previously and had not taken them. He accepted that there was a failure to comply with the Trust's own policy about risk assessment and levels of observation. He described many of the medical notes as being ‘telegraphic in their brevity’.
Held: Dr Carter was over-indulgent towards the Trust's position. His written report was unimpressive.
The Defendants argued that the absence of adequate risk assessment documentation was not of itself indicative of the Trust's liability. The Article 2 obligation was not to keep good records of clinical steps taken.
Mr Gillett, the ward manager, accepted that a daily record of decisions on levels of observation was extremely important, but agreed that there were no documents of that nature at all. He could not answer why there was no risk assessment by any member of the hospital staff.
Held: He did not have a clear picture of Mrs Savage's problems and risks or an appropriate grip on the procedures and policies to be adopted. Indeed, none of the staff who gave evidence seemed to have had any specific training in these areas.
Dr Ague, the consultant psychiatrist, ‘was alarmingly ignorant of the previous history’. His notes were laconic and illegible, he did not read any risk assessments and very rarely read the nursing notes. Crucially, he accepted under cross-examination that ‘anything could happen at any moment’ so far as Mrs Savage was concerned. There was nothing reassuring in his evidence, nor anything which enabled the Court to say that despite the manifest absence of proper documentation, Mrs Savage did not present a real and immediate risk of suicide.
Held: Overall, there was no doubt that the deceased presented a real and immediate risk of absconding. Dr Turner, the defence expert, rightly accepted that. As to whether that also indicated a similar risk of suicide, the Judge concluded that it did. There was little or no risk of that while she was on the ward, or at home with her family, but once she was out in the world on her own, such was her psychotic state of mind that it truly was the case that anything could happen at any moment.
As to whether the Defendant did all that it could reasonably have been expected to do, the answer was that it did not. There was a real prospect, or a substantial chance, that had the deceased been made subject to observations at 15- or even 30-minute intervals, she would not have slipped away unnoticed in the way that she did. All that was required to give Mrs Savage a real prospect or substantial chance of survival was the imposition of a raised level of observations. That would not have been an unreasonable or unduly onerous step.
As to whether the adult daughter was a ‘victim’ for the purposes of the Human Rights Act, Article 34 states: ‘the Court may receive applications from any person … claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the convention’.
Held: It was clear that the Claimant was entitled to bring this claim as a victim. The Court had no hesitation therefore in regarding the daughter as being entitled to be treated as a victim for the purposes of this action.
Turning to damages, an award could never compensate for the loss of a mother and could only be a symbolic acknowledgement. The figure for just satisfaction purposes was £10,000.
Jenni Richards (instructed by Bindmans) appeared for the Claimant. Edward Bishop (instructed by Bevan Brittan) appeared for the Trust.
Comment
This was arguably a surprising ruling, given that Mrs Savage had not attempted suicide in the weeks and months leading to her death. The Judge was clearly perturbed by the absence of proper risk assessments and recording of observations, and latched onto a concession by the treating psychiatrist that ‘anything could happen at any moment’. However, while there was little doubt that the deceased presented a real and immediate risk of absconding, the Judge then concluded that there was a similar risk of suicide, which was by no means clear from the evidence. Accordingly, at the time of writing, the Trust is considering an appeal against this ruling.