Savage v South Essex Partnership NHS Foundation Trust
| Jurisdiction | England & Wales |
| Judge | Sir Anthony Clarke MR |
| Judgment Date | 20 December 2007 |
| Neutral Citation | [2007] EWCA Civ 1375 |
| Court | Court of Appeal (Civil Division) |
| Date | 20 December 2007 |
| Docket Number | Case No: B3/2007/0445 |
[2007] EWCA Civ 1375
IN THE SUPREME COURT OF JUDICATURE
COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM THE QUEEN'S BENCH DIVISION
The Honourable Mrs Justice Swift DBE
Royal Courts of Justice
Strand, London, WC2A 2LL
Sir Anthony Clarke Mr
Lord Justice Waller and
Lord Justice Sedley
Case No: B3/2007/0445
TLQ/06/0548
Miss J Richards (instructed by Messrs Bindman & Partners) for the Claimant/Appellant
Mr E Faulks QC & Mr A McCullough (instructed by Messrs Bevan Brittan) for the Defendant/Respondent
Mr P Bowen & Ms Alison Gerry (instructed by the MIND Legal Unit) for the Intervener
Hearing date: 8 October 2007
This is the judgment of the court.
Introduction
This appeal arises out of a tragic event. On 5 July 2004 Mrs Carol Savage committed suicide after absconding from the Runwell Hospital ('the hospital'), where she had been detained pursuant to section 3 of the Mental Health Act 1983 ('the MHA'). She was only 49 years of age. She had a long history of mental illness and had been an in-patient on previous occasions. On 16 March 2004 she was admitted to the hospital on a voluntary basis but on 17 March she was first temporarily detained under section 5(3) of the MHA and then later detained under section 3. She was detained for treatment for paranoid schizophrenia on an open acute psychiatric ward. During her time in hospital she had made a number of attempts to leave. On 5 July she succeeded in leaving the hospital and then walked about two miles to the railway station at Wickford, where she jumped in front of a train and was killed.
On 1 July 2005 the deceased's daughter, Anna Savage, who is now the appellant, commenced proceedings against the South Essex NHS Trust ('the Trust') which was responsible for the hospital. The appellant claims damages under sections 6, 7 and 8 of the Human Rights Act 1998 ('the HRA') on the basis that the Trust is a public authority and is liable for an alleged breach of the deceased's right to life under article 2 of the European Convention on Human Rights ('the Convention') and/or for an alleged breach of her right to respect for private and family life under article 8 of the Convention. No claim was made at common law in negligence or under the Law Reform (Miscellaneous Provisions) Act 1934 or the Fatal Accident Acts by the deceased's estate or by her husband, daughter or any other member of the family. This is thus a most unusual claim. However, it is conceded on behalf of the Trust that the appellant is arguably a victim for the purposes of the HRA.
The Trust denied liability on a number of grounds and a date for the trial of the action was fixed for 29 January 2007. Although there is little dispute of fact, as Swift J said at [4] of her judgment, there are substantial issues about the nature and adequacy of the hospital's management of the deceased. They include the question whether the Trust or its employees were guilty of negligence. The allegations of negligence centre on whether there was a failure to take reasonable measures to prevent the risk of suicide and, in particular, whether there was a failure properly to assess the risk of the deceased absconding from the hospital. It is common ground that the issue of negligence can only be determined after a trial. On the other hand it is also common ground that the allegations do not amount to allegations of gross negligence such as would be sufficient to sustain a charge of manslaughter.
On 3 January 2007, only a short period before the date fixed for trial, the Trust issued an application asking the court to determine as a preliminary issue what, on the facts alleged in the particulars of claim, is the proper test in law in order to establish a breach of article 2 of the Convention. The case for the Trust is that it is necessary (at least) to establish gross negligence, whereas the case for the appellant is that it is sufficient to establish negligence, or perhaps something less. It was submitted to the judge by Mr Richard Hermer on behalf of the appellant that the question what is the true test should not be decided as a preliminary issue but at the trial after the trial judge had heard the evidence. Mr Angus McCullough submitted on behalf of the Trust that it should be decided as a preliminary issue on the ground that, if it was decided in favour of the Trust, there would be a considerable saving of time and money because it was common ground that, if the test was gross negligence, the appellant could not succeed and judgment would have to be given for the Trust under CPR Part 24.
The judge decided to proceed with the hearing of the preliminary issue. She resolved the issue in favour of the Trust and made a declaration that
“in order to establish a breach of article 2 of the [Convention], on the basis of the facts set out in the particulars of claim and the factual and expert evidence disclosed by the [appellant], the appellant would be required to establish that the [Trust] had been guilty of, at the least, gross negligence such as would be sufficient to sustain a charge of manslaughter.”
In the light of that declaration the judge gave summary judgment for the Trust and vacated the trial date. She also granted permission to appeal.
Issues in the appeal
The appellant advances two grounds of appeal, first that the judge was wrong in law to conclude that it was possible to determine the issue without a trial of the facts and, secondly, that, in so far as it is possible to determine the issue without recourse to a factual examination, the judge was wrong in law to hold that the applicable test was one of gross negligence. Permission was given for MIND to intervene in the appeal. They support the appellants' grounds of appeal but also rely upon article 14 of the Convention. In the light of that reliance Miss Richards, who now represents the appellant, also relies, so far as necessary, upon article 14. It is convenient to consider first the issue of principle, namely what is the correct test in order to establish a breach of the right to life in article 2 of the Convention. We note in passing that there is no allegation of any breach of what has sometimes been called the adjectival or procedural right which has been held to be implicit in article 2, namely the right to have a relevant death properly investigated. That is because it is accepted that there was a coroner's inquest and because it was open to the deceased's husband and family to bring a civil action in respect of her death and that, together, they amount to a discharge of the duty to investigate in article 2.
Article 2
The principles
Article 2 of the Convention is entitled “Right to life” and provides, among other things, that “Everyone's right to life shall be protected by law”. It is common ground that, as the judge said at [9], it is now well established that article 2(1) requires the state, not only to refrain from the intentional and unlawful taking of life, but also to take appropriate action to safeguard the lives of those within its jurisdiction. In R (Middleton) v. West Somerset Coroner [2004] UKHL 10, [2004] 2 AC 182 (a case in which a prisoner committed suicide) Lord Bingham, delivering the opinion of the appellate committee of the House of Lords, said at paragraph 2:
“The European Court of Human Rights has repeatedly interpreted article 2 of the European Convention as imposing on member states substantive obligations not to take life without justification and also to establish a framework of laws, precautions, procedures and means of enforcement which will, to the greatest extent reasonably practicable, protect life.”
There is now a considerable amount of jurisprudence both in Strasbourg and here which considers the scope of the duty to investigate under article 2, whereas until very recently there have been a comparative lack of cases which consider the substantive duty. There is no English case which clearly identifies the test in a medical negligence case. The Trust's case that the test is at least that of gross negligence can perhaps be seen by reference to two cases in this court, namely R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461 and R (Khan) v Secretary of State for Health [2003] EWCA Civ 1129, [2004] 1 WLR 971. They were both cases about the duty to investigate but they both contain some reference to the relevant test.
In Takoushis I gave the judgment of this court, which also comprised Chadwick and Moore-Bick LJJ. At [96] we agreed (probably obiter) with this statement made by Richards J in R (Goodson) v Bedfordshire and Luton Coroner [2004] EWHC 2931 (Admin) [2006] 1 WLR 432:
“Simple negligence in the care and treatment of a patient in hospital resulting in the patient's death, is not sufficient in itself to amount to a breach of the state's positive obligations under article 2 to protect life. This is stated clearly in Powell.”
That was a reference to the decision of the European Court of Human Rights ('ECtHR') in Powell v United Kingdom (2000) 30 EHRR CD 152. We added that it is important to note that Richards J referred to simple negligence and that the position is or may be different in a case in which gross negligence is alleged. We also added that by gross negligence we meant the kind of negligence which would be sufficient to sustain a charge of manslaughter. That may be the source of the formulation of the preliminary issue in the instant case.
As stated at [96], the reference to gross...
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