HUMAN RIGHTS — Right to life — Breach — Compulsorily detained mental patient absconding from hospital and committing suicide — Action against hospital trust for breach of deceased’s Convention right to life — Proper approach to establishing breach — Human Rights Act 1998, Sch 1, Pt 1, art 2
Where there was a real and immediate risk of a patient detained in a mental hospital committing suicide, art 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms, as scheduled to the Human Rights Act 1998, imposed an operational obligation on the medical authorities to do all that could reasonably be expected of them to prevent him doing so.
The House of Lords so held in dismissing an appeal by the defendant, South Essex Partnership NHS Foundation Trust, from a decision of the Court of Appeal (Sir Anthony Clarke MR, Waller and Sedley LJJ)  1 WLR 1667 allowing an appeal by the claimant, Anna Savage, from a decision of Swift J sitting in the Queen's Bench Division  EWHC 3562 (QB) in determining a preliminary issue and giving summary judgment for the defendant.
LORD RODGER OF EARLSFERRY said that the decisions of the European Court of Human Rights in Powell v United Kingdom (2000) 30 EHRR CD 362 and Osman v United Kingdom (1998) 29 EHRR 245 related to different aspects of the art 2 obligations of health authorities and their staff to protect life. The obligations were not alternative but complementary. Under the Powell case, health authorities were required to ensure that the hospitals for which they were responsible employed competent staff and that they were trained to a high professional standard. In addition, the authorities had to ensure that the hospitals adopted systems of work which would protect the lives of patients. Failure to perform those general obligations might result in a violation of art 2. If, for example, a health authority failed to ensure that a hospital put in place a proper system for supervising mentally ill patients and, as a result, a patient was able to commit suicide, the health authority would have violated the patient’s right to life under art 2. Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of art 2 since the health authority would have done all that the art required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. The same approach would apply 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. However, art 2 imposed a further “operational” obligation on health authorities and their hospital staff. That obligation was distinct from, and additional to, the authorities’ more general obligations. The operational obligation arose only if members of staff knew or ought to have known that a particular patient presented a “real and immediate” risk of suicide. In those circumstances art 2 required them to do all that could reasonably be expected to prevent the patient from committing suicide. If they failed to do that, not only would they and the health authorities be liable in negligence, but there would be a violation of the operational obligation under art 2 to protect the patient’s life. That was comparable to the position in Osman.
LORD SCOTT and BARONESS HALE delivered concurring opinions. LORD WALKER and LORD NEUBERGER agreed.
Savage v South Essex Partnership NHS Foundation Trust  UKHL 74;  WLR (D) 386
HL(E): Lord Scott of Foscote, Lord Rodger of Earlsferry, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger of Abbotsbury: 10 December 2008
Appearances: Edward Faulks QC and Angus McCullough (Bevan Brittan LLP) for the defendant; Nigel Giffin QC and Cecilia Ivimy (Department of Works and Pensions, Litigation Division) for the Secretary of State for Health, intervening; Philip Havers QC and Jenni Richards (Bindmans LLP) for the claimant; Dinah Rose QC, Richard Hermer and Paul Bowen (Bhatt Murphy Solicitors) for Inquest, Justice, Liberty and MIND, intervening.
Reported by: B L Scully, barrister