Savage v South Essex Partnership NHS Foundation Trust
| Jurisdiction | UK Non-devolved |
| Judge | LORD SCOTT OF FOSCOTE,LORD RODGER OF EARLSFERRY,LORD WALKER OF GESTINGTHORPE,BARONESS HALE OF RICHMOND,LORD NEUBERGER OF ABBOTSBURY |
| Judgment Date | 10 December 2008 |
| Neutral Citation | [2008] UKHL 74 |
| Date | 10 December 2008 |
| Court | House of Lords |
[2008] UKHL 74
Appellate Committee
Lord Scott of Foscote
Lord Rodger of Earlsferry
Lord Walker of Gestingthorpe
Baroness Hale of Richmond
Lord Neuberger
HOUSE OF LORDS
Appellants:
Edward Faulks QC
Angus McCullough
(Instructed by Bevan Brittan LLP)
Respondent:
Philip Havers QC
Jenni Richards
(Instructed by Bindmans LLP)
First Interveners
Bhatt Murphy
Dinah Rose QC
Richard Hermer
Paul Bowen
(Instructed by Inquest, Justice, Liberty and Mind)
Second Interveners
Department of Health
Nigel Giffin QC
Cecilia Ivimy
(Instructed by Secretary of State for Health)
My Lords,
I have had the advantage of reading in draft the opinions on this appeal of my noble and learned friends Lord Rodger of Earlsferry and Baroness Hale of Richmond and am in full agreement that, for the reasons they give, this appeal should be dismissed. There are two matters, however, on which I want to add a few words of my own. In doing so I gratefully adopt and need not repeat Baroness Hale's outline of the facts and of the relevant legislative background to the issues.
The first matter on which I want to comment is the locus standi of the respondent, the adult daughter of Mrs Savage, the deceased, to have instituted the action that has led to this appeal. Following Mrs Savage's self-inflicted death, an inquest was held into the causes and circumstances of her death. The inquest was held in public, the investigation by the coroner into the circumstances and causes of the death was a full one – no one has suggested that it was in any respect inadequate – and the coroner's and the coroner's jury's conclusions were made public. It is accepted that these conclusions do not warrant the commencement of criminal proceedings against anyone. The jury concluded that
"…the precautions in place [at Runwell Hospital] on 5 July 2005 to prevent Mrs Savage from absconding were inadequate"
and thereby exposed publicly the potential liability of the Hospital and its staff to the compensation remedies available in a civil court under ordinary domestic law.
There are two remedies under the ordinary domestic law which, following the inquest, could have been sought from the Hospital and its staff. The Hospital and its staff would, of course, have owed Mrs Savage the common law duty of care, a duty inherently flexible that imposes a standard of care dependant on the circumstances of each individual case. The jury's verdict at the inquest would have justified the commencement of an action in negligence on behalf of Mrs Savage's estate, pursuant to the Law Reform (Miscellaneous Provisions) Act 1934, to recover damages for any pain and suffering caused to Mrs Savage by the Hospital's failure to accord her the standard of care that it owed, assuming, of course, that that failure could be established in the action. The jury's verdict would have justified, also, the institution of an action under the Fatal Accidents Act 1976 on behalf of any dependants of Mrs Savage who had suffered financial loss on account of her death. Either or both of these actions, to which the NHS Trust would have been the defendant, would, if successful, have established in a court of law that the care taken of Mrs Savage at Runwell Hospital had fallen below the standard to which she had been entitled under ordinary domestic law. But her husband, Mr Savage, who, as the person presumably entitled to her estate, could have instituted an action under the 1934 Act and who may also have been a dependant of his wife for the purposes of the 1976 Act, was not willing to institute either action.
The respondent, being neither entitled to bring an action on behalf of her mother's estate nor having been a dependant of her mother for the purposes of the 1976 Act, would have lacked locus standi under domestic law to institute either action. She commenced instead an action under section 7 of the Human Rights Act 1998, based on what she alleges to have been a breach of her mother's rights under article 2(1) of the European Convention on Human Rights, incorporated into our domestic law by the 1998 Act. Article 2(1) guarantees the right to life:
"Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally …".
It is, of course, not contended by the respondent that the NHS Trust, or any of its staff at Runwell Hospital, intentionally deprived Mrs Savage of her life. It is common ground, however, that article 2(1) requires the State not only to refrain from the intentional and unlawful taking of life (the negative obligation) but also to take appropriate steps to safeguard the lives of those within its jurisdiction (the positive obligation). And, additionally, the jurisprudence of the European Court of Human Rights (the Strasbourg court) has developed article 2(1) so as to require the State to provide an effective investigation into the circumstances of a death where agents of the State have played, or appear to have played, a part (see R (Amin) v Secretary of State for the Home Department [2004] 1 AC 653 and the Strasbourg court cases there cited). It is accepted that the investigative duty has, in the present case, been fully discharged by the coroner's inquest. So it is a breach of the positive obligation that is relied on by the respondent. It is alleged that the article 2(1) positive obligation required the Hospital to take adequate steps to protect Mrs Savage from the risk that she would abscond and come to serious harm or harm herself and that the Hospital failed to take those steps.
One problem, and it seems to me a major problem, with the respondent's claim is that a claim under section 7 of the 1998 Act may only be brought by a "victim" of the unlawful act or omission relied on (sections 7(1) and (7)). I can well understand how a member of a deceased's family may be regarded as a "victim" for the purposes of the article 2(1) investigative obligation. An important, and perhaps the main, purpose of the investigative obligation is to enable the family of the deceased to understand why and how the deceased died and who, if anyone, was responsible for the death. It would follow that a close family member, such as a daughter of the deceased, could properly be regarded as a "victim" of a failure by the State to discharge its investigative obligation. But I am quite unable to understand how a close family member can claim to be a "victim" in relation to an act, in breach of the article 2(1) negative obligation, or in relation to an omission, in breach of the article 2(1) positive obligation, that had led to the death. The domestic law of a country may, as the domestic law of this country does, provide a remedy to the estate of the deceased and to the dependants of the deceased in any case where an act or omission unlawful under civil law has caused death. But I do not see it as any part of the function of article 2(1) to add to the class of persons who under ordinary domestic law can seek financial compensation for a death an undefined, and perhaps undefinable, class composed of persons close to the deceased who have suffered distress and anguish on account of the death. To do justice to the respondent, I do not imagine that her purpose in bringing the action was, or is, to obtain financial benefit for herself. She wants, I imagine, the consolation of a formal vindicatory recognition that Runwell Hospital had failed in its duty to her mother. But that recognition has already been afforded by the verdict of the coroner's jury. What vindicatory improvement is this action expected to produce? For my part, I doubt very much the legitimacy of the respondent's prosecution of this action.
Be that as it may, the locus standi of the respondent to bring this action, which could have been a short preliminary point of law potentially dispositive of the action, is not the preliminary issue that is the subject of this appeal. The parties' have preferred to raise as a preliminary issue the determination
"… of the following point of law …., namely the proper test in law 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".
The provenance of this preliminary issue appears to be a perceived conflict between two lines of authority emanating from the Strasbourg court. The evident intention of the preliminary point is that the court should indicate into which line of authority the present case should be regarded as falling.
One line of authority relates to the death by suicide of those who were at the time of the suicide in the custody of the State. Keenan v United Kingdom (2001) 33 EHRR 38 was such a case. My noble and learned friend Baroness Hale has, in paragraph 81 of her opinion, dealt with Keenan and cited the Strasbourg court's formulation of the test to be applied to decide whether there had been a breach by the United Kingdom of the article 2(1) positive duty owed to Keenan. I need not repeat her citations. She has cited also (in para 82 of her opinion) Kilinç v Turkey, an unreported decision of the court, in which the test formulated in Keenan was repeated.
The other line of Strasbourg authority stems, particularly, from Powell v United Kingdom (2000) 30 EHRR CD 362, dealt with by my noble and learned friend in paragraphs 89 and 90 of her opinion. Powell was a case of alleged medical negligence in which a young boy had died in an NHS hospital. His parents said that his death had been caused by the negligence of the hospital and that therefore it "must be concluded that there was a breach of the State's obligation to protect life." The Strasbourg court rejected that conclusion, at p 364:
"… it cannot accept that...
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