A real and immediate risk of suicide: a new obligation for trusts

Summary

Article 2 of the European Convention on Human Rights places a duty on NHS trusts to do all that can be reasonably expected of them to prevent patients who present a real and immediate risk of suicide from succeeding. The judgment in Savage v South Essex Partnership NHS Trust is not entirely clear, but it appears this duty could extend to patients whether or not they are detained and it creates a positive obligation on all NHS bodies and staff to protect all such patients. In addition trusts must ensure that they protect patients’ right to life by ensuring that they employ competent staff and safe systems of work to protect the lives of suicidal patients. For now, we need to work on the assumption that it does apply to all patients.

The obligation is likely to arise in cases involving mental health trusts but it may not be so limited and could foreseeably arise in any situation where any patient is under the care of the NHS (in A&E for example).

Where the trust has done all that could be reasonably expected, medical and nursing staff could be personally liable if their negligence leads to a patient killing themself, although the relevant NHS trust would normally be vicariously liable to meet any claim for damages.

Background

Mrs Savage had a history of mental illness and she absconded from hospital where she was being treated for paranoid schizophrenia as a detained patient on an open ward. She jumped under a train and killed herself. Her daughter sought compensation arguing that the trust had not provided enough care to protect her mother and was therefore liable for breaching her mother’s article 2 right to life. Mrs Savage had made a number of attempts previously to leave the hospital. The case was based on the premise that the hospital had failed to appreciate the risk this patient presented and failed to make sure adequate measures were in place to protect her life.

It is well known that ”the State” must not only refrain from intentionally and unlawfully taking life, but in certain circumstances, it must take appropriate action to safeguard the lives of people.

The claim failed in the first court because it was said that the daughter had to prove ”gross negligence” not merely negligence. The case went to the House of Lords to determine the proper test to apply if there was thought to be a breach of the right to life.

Judgment

The House of Lords decided that the trust was liable despite the absence of ”gross negligence”. Where a patient was compulsorily detained in a mental hospital, the trust owed the same duty as the duty owed by the State to someone held in prison.

NHS trusts must under article 2 protect the lives of patients in their hospital.

There are now three complementary obligations imposed on NHS trusts:

  1. to ensure they employ competent staff trained to a high professional standard to deal with patients at risk;
  2. to ensure they adopt safe systems to identify and protect the lives of mentally ill patients (for example, by way of a proper system of supervision of patients at risk); and
  3. ”an operational obligation” which the court defined as where members of staff knew or ought to have known that a particular patient presented a “real and immediate” risk of suicide. In this circumstance the court determined that article 2 requires NHS trusts to do “all that can be reasonably expected” to prevent the patient from succeeding.

The court felt that the third ”operational obligation” listed above, did not in reality, extend the duties of NHS trusts above that which was common sense and would (so they thought) be in place already and enforced by the law of negligence. This obligation was said to arise in the critical circumstances of a real and immediate risk of a patient committing suicide and simply meant that priority had to be given to saving a patient’s life.

These obligations are distinct and in addition to the usual obligations imposed by the civil law of negligence. It could be seen as a “double whammy” in that the NHS would be liable under the normal civil law of negligence and also (or alternatively) liable for a breach of obligations under the Human Rights Act 1998.

The role of professional staff

The House of Lords went further and said that liability might still arise (although not under article 2) even if competent staff were employed and a safe system of work was put in place. It might be that a doctor negligently treated a patient or a nurse negligently left their post and the patient committed suicide as a result. In this situation article 2 would not be relevant but the member of staff might be personally liable in damages for the death and the NHS trust would be vicariously liable too. The test here would be the normal standard of negligence applied in civil cases.

This is probably no more than a statement of the current law of negligence as it applies in the healthcare setting. But it is a worrying emphasis on the ”personal” liability of medical and nursing staff – and probably other healthcare professionals. Why did the court feel the need to make this comment ? What is the court thinking?

Implications for the NHS

It is not clear from reading all the judgments (which extend to 28 pages) whether this ruling was intended to apply only to ”detained” patients. The main judgment given in the case appears to indicate that it has a general application to all hospital patients in whatever setting. How this would apply in a busy A&E department is hard to imagine and these issues are likely to result in more litigation.

However, on the plus side for the NHS, it seems the threshold for the duty is high – there needs to be a ”real and immediate risk to life” about which the authorities knew or ought to have known. The duty then is to do ”all that reasonably could have been expected”. The problem arises because the (legal) consequences can be devastating, not just for the patient but also for the staff and the service.

The court recognised that the steps to be taken must be proportionate. This is even more so in the hospital setting where the regime is therapeutic and protective rather than penal. It is clear that it is appropriate to develop a patient’s ability to make sensible choices and to maintain a good quality of life and that is an important part of treating mental health. Keeping a patient secluded, restrained and absolutely safe where staff have assessed there to be a real and immediate risk, may do more harm than good. The court also noted that the NHS had to provide a reasonable service within the constraints of its resources.

These are all good words, but the fact remains that this judgment potentially imposes on trusts a duty under article 2 in quite wide ranging circumstances. There will need to be a careful balancing act made between providing appropriate care for patients; monitoring patients and putting in place proper safeguards and systems to protect them from themselves. It is not clear exactly where that line might be but using our professional judgment, draw it we must and hope we get it right.

Expect more cases.