EU Law

Savage (Respondent) v South Essex Partnership NHS Foundation Trust (Appellants), [2008] UKHL 74

Wed, 10 Dec 2008 10:07:00 GMT

In July 2004 Mrs Carol Savage, who was suffering from paranoid schizophrenia, absconded from Runwell Hospital where she was being treated as a detained patient. She then committed suicide by throwing herself in front of a train. Mrs Savage’s adult daughter, Miss Savage, brought the present proceedings alleging that the South Essex Partnership NHS Foundation Trust violated Mrs Savage’s art.2 Convention right to life by allowing her to escape from the hospital and kill herself. Miss Savage also stated that as a result of her mother’s death, she suffered distress, anxiety, vexation, bereavement, loss and damage. She claimed just satisfaction for the violation of art.2, including damages.

The Trust successfully applied for a question of law to be determined as a preliminary issue. The question related to the proper test for establishing a breach of art.2 of the Convention on the basis of the facts set out in the particulars of claim. The Trust contended that the extent of the obligations of health authorities to protect a patient’s life in a case like the present was to be found in the decision of the European Court in Powell v United Kingdom (2000) 30 EHRR CD362. The claimant argued, on the basis of Osman v United Kingdom (1998) 29 EHRR 245, that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities know or ought to know that there was a real and immediate risk of her doing so. The court accepted the argument for the Trust and struck out the action. The Court of Appeal allowed the claimant’s appeal and ordered a trial. The Trust appealed to this House.

The House of Lords unanimously dismissed the appeal. Per Lord Rodger of Earlsferry, in terms of art.2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, they may require to fulfil a number of complementary obligations. Firstly, health authorities must ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of art.2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under art.2.

If a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide, there would be no violation of any obligation under art.2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too.

Finally, art.2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances art.2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under art.2 to protect the patient’s life.

In re E (a child) (AP) (Appellant) (Northern Ireland), [2008] UKHL 66

Wed, 12 Nov 2008 16:36:00 GMT

The essence of the appellant’s case is that the state and its emanation, the police force, failed to take appropriate steps to discharge their positive obligation under art. 3 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the Convention”) to protect the appellant and her young daughter against the infliction upon them of inhuman and degrading treatment. It was also claimed that the police had discriminated against them in their handling of the events in which such treatment occurred.

At the material time, the appellant’s daughter went to a Catholic primary school (Holy Cross) in Ardoyne Road in a largely Catholic district. The appellant and her daughter walked to school. A housing estate which was inhabited by Protestant families bordered Ardoyne Road.

Serious disorder broke out on Ardoyne Road on 19 June 2001. This developed into abuse towards and attacks on children returning from school and their parents. This situation continued for the rest of that school term and then again into the new school session. At one point, an explosive device was thrown into the road. During that time, in order to enable the children to get to school without physical harm, they walked in a group between lines of armoured vehicles and police or service personnel holding riot shields. The situation ended in November 2001.

The appellant does not claim that she and her daughter were directly subjected to abuse or attacks, but she states that her daughter was frightened and upset by witnessing a violent incident which took place.

The police saw the events as part of a complex community dispute, in which a loyalist enclave on this area of North Belfast saw itself as under threat from the encroaching nationalists, and was exercising a right to ‘protest’ about this. The police later accepted that this was not a legitimate exercise of the right to protest. However, at the time they believed that more sinister forces on the loyalist side might exploit the dispute to foment much more serious violence elsewhere in Belfast if the matter was not carefully handled and ultimately a political solution found.

The essential dispute before the House was whether the police were entitled to take into account the risk of serious harm and even death to unspecified people elsewhere in Belfast when deciding how to protect the Holy Cross school children.

Both the trial judge and the Court of Appeal thought that the police were entitled to take those wider considerations into account.

The House of Lords held that, as a general principle, a police officer is not entitled to stand by and let one person kill or seriously ill-treat another, when he has the means of preventing it, just because he fears the wider consequences of doing so. In this case, however, the House held that it had not been shown that, had the police behaved at the outset in the way in which it is now said that they should have behaved, the children’s experience would have been any better. Indeed, it could have been a great deal worse. They were in very real physical danger at the beginning. The difficulties and dangers to them in doing what it is now suggested should have been done could not be ignored.

For that reason, the House unanimously dismissed the appeal.

Nigel Maurice Johnston v. The Scottish Ministers

Thu, 26 May 2005 23:00:00 GMT

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