Where health services and practitioners face claims under the Human Rights Act (HRA), they will usually have to show that they did all that could reasonably be expected of them.
That was the decision in a case involving a woman with paranoid schizophrenia, who was able to leave the hospital in which she was detained, walk two miles to a railway station and throw herself in front of a train. (Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74)
The woman’s daughter wishes to bring proceedings against the NHS trust that manages the hospital. She says the trust breached her mother’s right to life under article 2 of the European Convention on Human Rights. She is unable to bring proceedings under either the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accidents Accident Act 1976, and therefore chose to pursue her claim via the HRA. Ultimately, she will have to establish that she is a ‘victim’ of the alleged breach, but for present purposes, that issue was not in play.
In a judgment delivered on 10 December 2008, the House of Lords said the daughter’s claim could proceed to trial, and it gave guidance as to the standard the trust will have to meet if it is to defend the proceedings successfully.
Their Lordships said the effect of article 2 is to impose two duties upon health bodies such as NHS trusts.
The first duty is to protect the lives of patients. Hospital trusts must ensure they employ competent staff, who are trained to a high professional standard, and adopt safe systems of work. If, for example, there was no proper system for supervising mentally ill patients - and if, as a result, a patient was able to commit suicide - the trust would have violated his right to life.
Even where there are competent staff and safe systems, of course, an individual doctor or nurse might act negligently and thereby cause a patient’s death. In that situation, the practitioner would be personally liable in damages. The health body might also be vicariously liable for the practitioner’s negligence, but it would not have breached article 2, because it had done all that the article requires of it to protect the patient’s life.
Their Lordships said the second duty imposed by article 2 is operational in nature and more specific than the first one. It arises only if members of staff know or ought to know that a particular patient presents a ‘real and immediate’ risk. In that circumstance, article 2 requires staff to do all that can reasonably be expected to do to protect the patient from the risk. If they fail in this regard, not only will they and the health body be liable in negligence; there will also be a violation of the obligation under article 2 to protect the patient’s life. It was accepted, however, that resources are not unlimited, and their Lordships said that in attempting to fulfil their obligation to a patient, practitioners need not behave any more cautiously than they were already persuaded to do by the ordinary law of negligence.
Traditionally, of course, the right to life has most often been engaged by deaths occurring in custody, with little or no distinction being made between prison and police custody and detention under the Mental Health Act. One judge, however, suggested that article 2 might extend further than that.
Baroness Hale – who, as well as being a senior judge, is also a noted mental health law expert – said she found it difficult to distinguish between compulsory hospital patients and those on formal leave, and also between detained and informal patients, and between them and the incapable patients who, from next April, will be subject to the Deprivation of Liberty Safeguards. All of them, she implied, might now be entitled to the protection of this special duty of care.
The primary function of this decision is to clarify the obligations imposed by the Human Rights Act: generally, it is unlikely to impose upon health care services and practitioners greater obligations than they already owed. But the decision does acknowledge a special duty in some circumstances, and in time, we may conclude that its greatest novelty was to extend those circumstances and, therefore, the number of patients protected by article 2.
