There have been a number of cases brought against health trusts in recent years arising out of the suicide of mental health patients who had attended hospital seeking assistance shortly prior to their deaths. In many of these cases, there is evidence that the deceased had presented at hospital in the days or hours prior to his or her death, only to be discharged or to abscond without having received the appropriate treatment. In cases of this nature, whilst often the hospital is found liable under the standard principle of negligence, families are now seeking redress from the state as well under the provisions of the Human Rights Act.
There have been a number of decisions which have passed through the lower courts to the House of Lords and indeed the European Court of Human Rights querying whether families have any right of recovery for breach of article 2 of the Human Rights Act. Article 2 is the article which safeguards the right to life. In order to satisfy its obligations under article 2, not only must a state refrain from the unintentional and unlawful taking of life, it must also take appropriate steps to safeguard the lives of those within its jurisdiction. It was stated in the case of Savage v South Essex Partnership NHS Trust that in order to bring a claim under article 2, the Plaintiff must demonstrate that at the relevant time the Trust knew or ought to have known of the existence of a real and immediate risk to life and that it failed to take measures within the scope of their powers to avoid that risk. The test is therefore not absolute. The Trust must be deemed to have been aware that there was a risk to the patient’s life and had the opportunity to avoid that risk materialising.
It is well established that in cases involving a prisoner in custody, the onus upon the state to ensure that prisoner’s safety is a significant one. This is because a prisoner is detained by the state and therefore definitively within the control of the state. It would appear to be as a result of these prison related cases that a distinction has arisen between where a patient has been detained under the provisions of the Mental Health Act and where a patient presents at hospital on a voluntary basis. There have been three key cases before the House of Lords in respect of this issue. These are :- the Savage v South Essex Partnership NHS Trust, Takoushis v Coroner & St Guy’s & Thomas Trust and most recently, Rabone v Pennine.
In the case of Takoushis, the deceased had been admitted to hospital as a voluntary psychiatric patient. A number of days after admission he was granted permission to leave the ward to visit the day hospital, which was within the hospital grounds. He left the hospital and attempted to jump off the Tower Bridge, in London. He was taken to a different hospital in London, St Thomas’, to the A&E department, where he arrived at around 13.00. The triage system in place in respect of patients with mental health problems indicated that they should be seen within a period of 10 minutes from the time of assessment. It was accepted by the court that the period of 10 minutes started in Mr Takoushis’ case from at the latest, 13.30 hours. By 14.00 he had not been seen by a doctor, and was found to have absconded. Mr Takoushis’ body was recovered from the River Thames some five weeks later.
The case ended up before the Court of Appeal on the basis that a proper inquiry had not been conducted by the Coroner, and that his failure to hold an inquest by way of a jury represented a breach of article 2. It has long been established that in addition to its positive obligation to safeguard the lives of its citizens, the state has an obligation under article 2 to carry out an appropriate investigation into a death. This is usually fulfilled by way of a coroners inquest, or other civil or criminal procedures. It was found in the case of Mr Takoushis that the coroner had been wrong in refusing to allow the inquest to take place without a jury. However, this was not to say that an inquest by jury was a prerequisite in every case involving possible medical negligence. The Court of Appeal found that the pertinent question in each case is whether the system as a whole, including any investigation initiated by the state and the possibility of civil and criminal proceedings and of a disciplinary process, satisfies the requirements of article 2. As a footnote to their decision, the Court also stated that there was an important distinction to be made between patients who are detained by the state and those who are not. This point was further elaborated on in the Savage case, which was decided in 2007 by the Court of Appeal.
The deceased in this case was Mrs Carol Savage. She had a long history of mental health problems and was admitted to hospital under the Mental Health Act in March 2004. During her time in hospital she made a number of attempts to leave and eventually succeeded in doing so on 5th July 2004, when she jumped in front of a train and was killed. The deceased’s daughter issued proceedings under articles 2 and 8 of the European Convention on Human Rights. The Defendant Trust argued that there had to be ‘gross negligence’ in order to prove a breach of the Convention and that simple negligence was not sufficient.
The case reached the Court of Appeal, who discussed a number of custody cases and hospital cases in its judgment. They noted the stark contrast in the approaches taken by the courts in dealing with same. The Plaintiff argued that there should be no distinction between cases where a patient was detained under the provisions of the Mental Health and Act and cases where a prisoner was detained in custody by the state. The Court found that it was not necessary for the Plaintiff to prove that gross negligence had occurred in her mother’s care. They held that both patients detained under the Mental Health Act and prisoners were particularly vulnerable and under the control of the state in a way in which ordinary patients are not. The Court therefore established a distinction as regards the duty owed to patients detained under the Act and patients who had been admitted voluntarily.
Following on from this decision came the Rabone case , which was decided in May 2010. Melanie Rabone was admitted to hospital on 11th April 2005 following a number of suicide attempts. Although she was admitted on a voluntary basis, it was indicated in her notes and records that should she attempt to leave she should be assessed for detention under the provisions of the Mental Health Act. On 19th April 2005, Melanie was allowed home leave for a period of two days. The following day, Melanie hung herself. Whilst it was agreed that the decision to discharge Melanie was negligent, her family argued that there had also been a breach of article 2. The appeal was made on a number of points, the most relevant for these purposes being whether the Trust had an obligation under art 2 to take measures to safeguard Melanie against the risk to herself notwithstanding the fact that she was a voluntary patient and not detained under the Mental Health Act.
The Court held that there was no reason why every fatal accident claim involving the death of a patient in hospital should lead to a parallel claim under art 2. Where a patient with a mental illness was detained under the MHA, he or she was held in custody by an authority acting on behalf of the state. Essentially, the court reiterated the view previously expressed by the Court of Appeal in the Rabone case. They held that in cases involving voluntary patients, the state did not have such an onerous obligation to ensure that patients did not abscond, even where these patients posed a ‘real and immediate risk’ to themselves.
If hospitals had a positive obligation under article 2 to protect against life, it would be impossible to separate patients into categories where the obligation applied and it did not. For example, they stated that a patient undergoing major heart surgery might be at just as great a risk of death as a schizophrenic patient with a suicidal tendency. The appropriate remedy therefore, in cases of this nature, was clinical negligence and not redress under the European Convention.
The outcome of these cases is that patients who have been detained in hospital and abscond are in a position to claim that a breach of the European Convention has occurred, whilst those who are in hospital on a voluntary basis are not. This distinction certainly appears to be somewhat artificial, particularly given that a number of patients are admitted voluntarily, but on the proviso that should they attempt to leave, they will be detained. Unfortunately, it seems that this will remain the position at present, at least until another of these cases comes before the Supreme Court.