Heavy duty

The case of Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QBD) sets a legal precedent as the first claim to be brought under article 2 of the European Convention on Human Rights (ECHR) by a family member where a health authority fails in its responsibilities towards a vulnerable detained patient.

Anna Savage's mother, Carol Savage, was detained pursuant to section 3 of the Mental Health Act 1983 for treatment for paranoid schizophrenia on an open acute psychiatric ward at a Runwell hospital for which the defendant NHS trust was responsible. On 5 July 2004 Carol absconded, jumped in front of a train and was killed.

Carol's husband, Robert, was so distressed by his wife's death that he was not willing to engage in litigation, although he was entitled to bring a claim in negligence as the administrator of the estate.

The claimant, Anna Savage, started proceedings against the trust, claiming a declaration that her mother's right to life under article 2 ECHR had been violated and sought just satisfaction, pursuant to the Human Rights Act 1998, on the basis that the trust was a public body and she was a victim pursuant to section 7 of the Human Rights Act.

The case proceeded up to the point of exchange of expert evidence and listing for trial, when the defendant made an application to strike out the claim on the grounds that a preliminary issue of law needed to be determined '“ namely the applicable test for a breach of article 2. The defendant argued that the claim was bound to fail as the test was gross negligence akin to manslaughter. The claimant argued that the appropriate test was that of real and immediate risk.

The defendant succeeded at first instance. The claimant appealed and the Court of Appeal overturned the High Court decision. The defendant appealed to the House of Lords. The House of Lords found that the test was: is there a real and immediate risk to the life of the patient? If so, did the trust take all reasonable precautions to avert that risk? (Savage v South Essex Partnership Foundation NHS Trust [2008] UKHL 74.) The obligation arises if the trust had actual or constructive knowledge of the risk. The test is a higher one than the Bolam test for clinical negligence.

Carol Savage was born on 18 May 1953. She had been married for 31 years and lived with her husband in Rayleigh, Essex. The couple had two adult children, David and Anna. Carol had a history of mental illness dating back to 1983 when she was diagnosed as suffering from paranoid schizophrenia.

Between 1988 and 2004, she had a number of inpatient admissions. During her penultimate admission under section for six months between 2001 and 2002, she had attempted to abscond and had on one occasion been found wondering among cars on the A130 stating she wanted to die.

On 16 March 2004, she was admitted for the final time to Runwell hospital where she was sectioned. During this admission, she was repeatedly noted to be paranoid and tormented by voices '“ she mentioned voices and her fear of harm on about 24 occasions. There were around 19 occasions when she spoke about her paranoid ideas about harm coming to her family. On about 11 occasions she absconded or talked about absconding, including on two occasions when responding to hallucinations telling her to jump out of the window.

Carol eventually absconded from the ward on 5 July 2004, walked approximately two and a half miles to Wickford railway station and was killed when she jumped in front of a train. On 14 October 2005, an inquest jury concluded that 'the precautions in place on 5 July 2004 to prevent Ms Savage from absconding were inadequate'.

In this litigation the High Court heard evidence from expert psychiatrists and nursing experts instructed for each party as well as the trust staff responsible for the care of Carol Savage over a period of six days.

Knowledge of 'real and immediate risk'

The High Court delivered its judgment on 28 April 2010. There were two stages in the test defining the duty of the state under article 2 to take steps to prevent people killing themselves, in the context of a detained patient. The first was to decide whether the defendant had the requisite knowledge, actual or constructive, of a 'real and immediate risk to life'. The second was whether the defendant failed to do all that could reasonably have been expected of it to avoid or prevent that risk.

The test depended not only on what the relevant authority had known but also what it ought to have known at the time. The court would have to warn itself against the dangers of hindsight. The authorities were clear that there was a high threshold to be crossed before the test was satisfied. The threshold was higher than the test in clinical negligence cases in domestic law. Once the test was triggered by the requisite knowledge, and consideration was focused on whether the state had done all that could have reasonably been expected, that was a question that could only be answered in the light of all the circumstances of any particular case. At the second stage, the test for causation was not the English 'but for' test, but a looser one: the claimant did not have to show that had the trust acted appropriately there would probably have been no death, but merely that she had 'lost a substantial chance of that'.

Mackay J giving judgment found the defendant through its staff either had or ought to have had knowledge of the real and immediate risk that Carole Savage would abscond for the following reasons:

(1) She had been assessed as a suicide risk in October 2001 and had made a significant attempt to kill herself. She had also absconded several times during this course of treatment. Only one nurse thought she knew about this history; all other members of the team were ignorant of it because they had not made it their business to study her history.

(2) Carol Savage had broken a window, requiring restraint.

(3) She had tried twice to climb out of a window, in response to command hallucinations.

(4) There was no proper risk assessment or consideration of the appropriate level of observations after her admission to Chalkwell ward; or any review of these after the two occasions when she talked about suicide and four attempts at absconding; or the consequences of any future successful attempt to abscond '“ the assumption that all she was attempting to do was to go home was superficial and could not be made with any confidence.

(5) At all times in the last two months of her detention she was known to be in psychological terms in the state accepted by Dr Ague '“ namely that Mrs Savage was impulsive, felt persecuted and was terrified, was experiencing unpredictable psychotic thoughts and that in that state 'anything could happen at any moment'.

(6) There is no doubt that she presented a real and immediate risk of absconding.

But once she was out in the world on her own such was her psychotic state of mind it truly was the case that anything could happen at any moment and the risk of suicide must be assessed as both real and immediate.

Inadequate precautions

In answer to the second limb of the test, as to what precautions could reasonably have been taken by the trust to alleviate the risk, Mackay j found:

'As to whether the defendant did all it could reasonably have been expected to do the answer to that must be that it did not. At the least there was a real prospect or substantial chance that had she been made subject to level two observations at 15 or even 30 minute intervals she would not have slipped away unnoticed in the way she did on the 5 July'¦ But in my judgment all that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant in the light of the evidence in this case.'

Costs were awarded to the claimant and leave to appeal was refused.

Was the claimant a victim?

In the instant case, the claimant had been entitled to bring the claim as a victim. The deceased was her mother to whom she was close and much of the deceased's final illness had centred around a deluded but sincere concern for the safety of the claimant. She was entitled to be treated as a victim. In those circumstances, the claimant had been entitled to a finding and declaration that the defendant had violated its positive obligation to protect the life of the deceased under article 2 of the Convention.

Accordingly, there had been a violation of article 2 of the Convention. Van Colle v Chief Constable of Hertfordshire Police; Smith v Chief Constable of Sussex Police [2008] UKHL 50 applied; Keenan v United Kingdom (Application 27229/95) [2001] ECHR 27229/95 considered; Opuz v Turkey (Application No 33401/02) [2009] ECHR 33401/02 considered; Rabone v Pennine Care NHS Trust [2009] All ER (D) 55 (Aug) considered.

On just satisfaction Mackay J found that domestic courts should generally follow the approach of the European Court of Human Rights and not aim to be significantly more or less generous in their awards. Compensation could never compensate the claimant for the loss of her mother and could only be a symbolic acknowledgment that the defendant ought properly to give her some compensation to reflect her loss. In the circumstances of the instant case, the appropriate award was £10,000.

This is the first case to decide that a family member could be a 'victim' in these circumstances, thus acknowledging that the category of people who can bring such a claim is wide compared to negligence claims. When making submissions on costs, the trust argued that a declaration that the trust had breached Carol Savage's right to life was meaningless because an inquest had taken place and the inquest finding was sufficient. This submission was roundly rejected by Mackay J on grounds that the inquest served a different purpose and the remit of the inquest is narrow by comparison with this type of litigation which provided a high level of scrutiny of the issues. As to overlap with negligence claims, the case confirms that the tests are rather different and there will be a choice to be made as to which type of claim to pursue.

Finally, the case serves to confirm the importance of claims involving a declaration under article 2 which will be a powerful tool for families where there is some evidence of system failures and where the family has concerns about issues of wider public importance.