Savage v South Essex Partnership NHS Foundation Trust (No 2)

JurisdictionEngland & Wales
JudgeTHE HONOURABLE MR JUSTICE MACKAY,Mr Justice Mackay
Judgment Date28 April 2010
Neutral Citation[2010] EWHC 865 (QB)
CourtQueen's Bench Division
Date28 April 2010
Docket NumberCase No: HQ05X01907

[2010] EWHC 865 (QB)

IN THE HIGH COURT OF JUSTICE

QUEEN'S BENCH DIVISION

Before: The Honourable Mr Justice Mackay

Case No: HQ05X01907

Between
Anna Savage
Claimant
and
South Essex Partnership Nhs Foundation Trust
Defendant

Ms Jenni Richards (instructed by Bindmans and Partners) for the Claimant

Mr Edward Bishop (instructed by Bevan Brittan LLP) for the Defendant

Hearing dates: 22–26, 30 March 2010

Approved Judgment

I direct that pursuant to CPR PD 39A para 6.1 no official shorthand note shall be taken of this Judgment and that copies of this version as handed down may be treated as authentic.

THE HONOURABLE MR JUSTICE MACKAY Mr Justice Mackay

Mr Justice Mackay:

1

Carol Savage met her death on 5 July 2004 by throwing herself in front of a train at Wickford station in Essex. She was 50 years of age and left a husband, two children and a close-knit and caring extended family. At the time of her death she was a patient at Runwell Hospital which was managed and staffed by employees of the defendant. She was detained under Section 3 of the Mental Health Act 1983, for the purposes of treatment and for her own safety. She had suffered from mental illness on an intermittent or fluctuating basis for many years.

2

This claim is brought by her adult daughter under Section 7(1) of the Human Rights Act 1998, based on Article 2 of the European Convention on Human Rights. The claimant says she is a victim for the purposes of Section 7(7) of the Act and seeks a finding that the defendant Trust was in breach of Article 2, together with just satisfaction.

3

A preliminary issue in this claim has been considered by the House of Lords and is now reported at [2009] 1 AC 681. Their Lordships considered the nature and scope of the defendant's obligation under Article 2 in the circumstances of this case. They ruled that where there is a “real and immediate risk” of a detained mental patient such as Mrs Savage committing suicide Article 2 imposes an operational obligation on the hospital authority to do all that can be reasonable expected of it to prevent it. That obligation arises only if members of staff knew or ought to have known that the particular patient presented such a risk. The threshold that the Claimant has to surmount is a high one, higher than, for example, the familiar Bolam test in clinical negligence cases in domestic law. I will have to consider the law more fully later in this judgment. For the moment I must now set out in some detail the facts leading up to her death as I find them to be.

The facts

4

Carol Savage's history of mental illness went back to the birth of her son in the late 1970's when she suffered from post-natal depression. There is not a complete record available of all her subsequent episodes of illness. But more recently between October 2001 and April 2002, for something like five and a half months, she had been an in patient at the same Runwell Hospital detained under Section 3 of the Mental Health Act. In the course of this stay she was recorded as being at risk of suicide or self harm, being said to feel she was being persuaded by others to kill herself. On 23 November 2001 she absconded and was found on the A130 main road some distance away, walking between the cars. She told staff when she was taken back to the hospital that she wanted to die, though she later said she was alright. Her mental history and symptoms attracted a diagnosis of paranoid schizophrenia.

5

She then lived in the community with her husband, holding down a part time job, until her mental state deteriorated to such a state that on 16 March 2004 her husband took her back to Runwell Hospital initially on an informal basis. Her illness took the form of delusions, that she heard voices, was agitated and concerned, and anxious in particular that harm might come to the claimant her daughter (who had just started a new job in Norfolk). Mr Savage and other family witnesses called these her “horrible thoughts”.

6

When she reached Runwell Hospital on 16 March with her husband Mrs Savage was very ill. She was said to have been pacing up and down for ten days, unable to sleep, and she would not answer any questions asked of her. She was admitted and assessed as requiring level three observations. She was threatening to abscond.

7

The following day 17 March she was still on close observations. She was described as pacing and not answering questions, just saying (obviously in respect of her daughter whose safety was and remained throughout her time in hospital an obsession with her) “I know that she is safe” and “I want her safe”. The doctor assessed her as a risk of absconsion (the term used in the NHS for absconding) and she was detained initially under section 2 of the Mental Health Act 1983. The following day she was no better and was detained under section 3.

8

On 19 March she was still very restless and agitated, refusing oral medication and trying to get out of the ward. She smashed a glass window and had to be restrained by two members of staff. She was put on 15 minute observations and consideration was given to her transfer to a Psychiatric Intensive Care Unit at the earliest opportunity, but no bed was available. The decision was taken to transfer her on 20 March to the Cygnet Clinic in Beckton, East London, a private establishment which had a secure facility. She was plainly still very ill at this stage.

9

A risk assessment was carried out on that date which assessed the risk of suicide as low and the risk of absconding as high. She stayed at the Cygnet Clinic until 13 April. While there she was risk assessed by a Consultant Psychiatrist on 1 April who said it was difficult to assess her mental state, describing her as “not hostile nor is she suicidal. No signs at all of depression or mania.” He assessed her as a medium risk of absconsion, a low risk of self harm and suicide but said it was too early for her to leave the unit.

10

She was re-assessed on 11 April on a score sheet which included a zero score for “non accidental self injury”. She was transferred to the Basildon Hospital Belhus unit (a secure unit) on 13 April. Her discharge summary from Beckton diagnosed her as suffering from paranoid schizophrenia. It set out a full account of her presentation at the Cygnet unit and included the information that she had acted bizarrely, seemingly responding to hallucinations which were telling her to jump out of the window and at one stage she had had to be restrained while attempting to climb through a window. She had done the same again on the 22 March. This discharge report and, it seems reasonable to assume, the other assessments made at the Cygnet unit must in due course have reached the staff at Basildon hospital run by the defendant when she was transferred to that unit.

11

On arrival at Basildon she was immediately assessed by a nurse who stated that the primary identified risks were absconding and sudden outbursts of aggression, hence the move to Cygnet where it was reported that she had become significantly more settled. She received a mental health assessment later that day. The resultant risk assessment indicated that there was a low apparent risk of suicide and a significant risk of severe self neglect. On the second page there are boxes ticked which state that there was a risk history of absconding as well as current warning signs. There is no mention of a risk of absconding on the face of this document until it was reviewed on 18 May by which time the absconsion risk was stated to be significant.

12

The next day 14 April she was seen by the SHO and said she had been admitted because people wanted to kill her in the community because of her daughter who was in Norfolk. When asked if she felt like self harming she said it would be better if she took tablets and disappeared. She felt worthless and that her husband did not love her. Mr Savage was an assiduous visitor to his wife on a daily basis and could not have done more to care for her, and therefore this remark must have been a further manifestation of her delusional state. Over the days that followed she remained isolated, reported that everyone was “after her” but by 22 April was deemed suitable to be transferred to Grangewater ward, an open ward, and was adjudged fit to go home that weekend on leave with her husband. Up to this point there is not nor could there be any serious criticism of her care by the Trust.

13

Although Mr Savage expected to take her back to Grangewater ward on the Sunday evening he was told he could not because there were no beds available and she therefore stayed on at home on the Monday Tuesday and Wednesday, not returning until the Thursday 29 April. He said she seemed to go downhill as a result of this extended and enforced leave period. When he returned her to hospital it was to Runwell Hospital in Chalkwell ward, an open ward.

14

She was seen there by a Senior House Officer Dr Abrar who thought that she had settled a little bit compared with before (meaning mid March on her first admission) but she was still complaining of people being after her to kill her, saying she was “all confused”. Her mood was frightened and confused, and she was quoted as saying “I would harm myself if I could” and “would take some tablets”. A diagnosis of paranoid schizophrenia was again suggested and the plan was to admit her with 30 minute observations and to be seen by the Consultant Dr Ague prior to any leave.

15

There is no record of the instruction for level two 30 minute observations ever having been amended nor is there any record sheet of those observations, which should have been kept in accordance with the Trust's policy, and which had been kept during her 2001/2 stay. The then current policy guidance was that level 2 observations should be at intervals of no more than 15 minutes....

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5 cases
  • Rabone v Pennine Care NHS Trust
    • United Kingdom
    • Court of Appeal (Civil Division)
    • 21 Junio 2010
    ...Mrs Savage's daughter was entitled to bring her claim as victim: see Savage v South Essex Partnership NHS Foundation Trust (No. 2) [2010] EWHC 865 (QB) at [92]-[94]. In the light of the Strasbourg authorities citied above, I consider that Mackay J's conclusion in Savage (No. 2) was 93 Reve......
  • Rabone and another v Pennine Care NHS Trust
    • United Kingdom
    • Supreme Court
    • 8 Febrero 2012
    ...in the light of such guidance as can be gleaned from the Strasbourg decisions on the facts of individual cases. 85 In Savage (No 2) [2010] EWHC 865 (QB), Mackay J considered a substantial number of decisions of the ECtHR in which compensation has been awarded for non-pecuniary loss to vict......
  • R (on the application of Tainton) v HM Senior Coroner for Preston and West Lancashire
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 16 Junio 2016
    ...substantive right to life under article 2 of the ECHR was in issue (as it was in Savage v. S. Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB); see per Mackay J at [82]). At the oral hearing before us, it became clear that these points were accepted by the claimant. There was no ......
  • R Daniel Roque Hall v University College London Hospitals NHS Foundation Trust and Another
    • United Kingdom
    • Queen's Bench Division (Administrative Court)
    • 8 Febrero 2013
    ...to preserve life. However, Article 2 is only engaged where there is a "real and immediate risk" of death (see, e.g., Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB)). 18 Ms Krause put the claim on the following basis. i) Prior to sentence on 6 July 2012, the Claim......
  • Request a trial to view additional results
1 books & journal articles
  • Risk and responding to self injury: is harm minimisation a step too far?
    • United Kingdom
    • Emerald The Journal of Mental Health Training, Education and Practice No. 14-1, January 2019
    • 14 Enero 2019
    ...prevention”,Advances inPsychiatric Treatment, Vol. 19 No. 1, pp. 295-301.Savage v. South Essex Partnership NHS Foundation Trust (2010), EWHC 865 QB.Shaw, C. (2012), “Harm minimisation for self harm”, Mental Health Today, September/October, pp. 19-21.Shaw, C. and Shaw, T. (2009), “Harm-Ed Du......

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