In July 2004 CS was being treated as a detained patient at Runwell Hospital under the Mental Health Act. She absconded and went on to commit suicide by throwing herself in front of a train. A public inquest was held and concluded that the precautions in place at the hospital were inadequate.
S, the daughter of CS, lacked locus standi to bring an action against the hospital using either of the remedies in domestic law. She commenced an action under s 7 of the Human Rights Act 1998, based on the alleged breach of her mother’s rights under Article 2(1)* of the European Convention on Human Rights, guaranteeing the right to life. The Trust successfully applied to the High Court to have the action struck out. S appealed to the Court of Appeal on the grounds that the decision in Osman v United Kingdom (2000) 29 EHRR 245 should be followed: that a duty to take steps to prevent a patient from committing suicide arises if the authorities know or ought to know there is a real and immediate risk of the patient doing so. The Trust contended that the approach in Osman (above) had been rejected in Powell v United Kingdom (2000) 30 EHRR CD362, but the Court allowed S’s appeal. The Trust appealed to the House of Lords seeking clarification on whether or not duties imposed upon the state by Article 2 extend to a positive duty to protect one specific life.
* Article 2 provides: ‘1. Everyone’s right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law. 2. Deprivation of life shall not be regarded as inflicted in contravention of this Article when it results from the use of force which is no more than absolutely necessary: (a) in defence of any person from unlawful violence; (b) in order to effect a lawful arrest or to prevent the escape of a person lawfully detained; (c) in action lawfully taken for the purpose of quelling a riot or insurrection.’
[Adapted from INTERIGHTS summary, with permission]
In dismissing the appeal and allowing the case to go to trial, it was held that:
Per Lord Rodger of Earlsferry and Baroness Hale of Richmond (Lord Walker of Gestingthorpe, Lord Scott of Foscote and Lord Neuberger concurring):
(1) Powell v United Kingdom (above) and Osman (above) related to different aspects of the Article 2 obligations of health authorities and their staff to protect life and were not mutually exclusive. The circumstances in Powell (above) were different from circumstances where a patient presents a real risk of suicide, and it provided no guidance in this case.
(2) Fundamentally, Article 2 required a state to have in place a structure of law which will help to protect life. The primary duty of the state had been established as being to secure the right to life by putting in place effective criminal law provisions (Osman (above) applied). It also had established that in certain circumstances there was a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk.
(3) If triggered, the positive duty of the state to protect the right to life on one specific person would have applied to medical authorities as well as other public authorities (Osman (above) and LCB v United Kingdom (1998) 27 EHRR 212 applied). The obligation to take additional steps to protect the lives of particular individuals arises when the police authorities know, or ought to know, that there is a real and immediate risk to the individuals’ lives from the criminal acts of third persons.
(4) The European Court of Human Rights has recognized that, in certain circumstances, the state’s duty under Article 2 does include a duty to take steps preventing people from committing suicide (Keenan v United Kingdom (2001) 33 EHRR 38 and Salman v Turkey (Application no 21986/93) 27 June 2000 considered). These cases applied to prisoners, as they are in a vulnerable position. The same principle applied to conscripts (Kilinc v Turkey (unreported) considered). It was clear that the relevant authorities had two obligations under Article 2. The first was to ensure there is a legislative and administrative framework which will make for the effective prevention of suicides. The second was to ensure that practical measures are adopted to protect those who could be at danger from suicide.
(5) CS was not only a patient in a hospital, but a detained patient. Plainly she was in a vulnerable position, comparable to that of prisoners and conscripts. Accordingly, the hospital authorities responsible for detained patients had an obligation to protect them from self-harm and suicide.
(6) Article 2 imposed on the health authorities an over-arching obligation to protect the lives of patients in their hospitals, but also a further ‘operational’ obligation. This obligation only arises if members of staff know, or ought to know that a particular patient presented a ‘real and immediate risk of suicide’ This was the trigger, and in these circumstances Article 2 required them to do all that can be reasonable expected to prevent the patient from committing suicide. If they failed to do so, there would be a violation of the operational obligation to protect the patient’s life. It was for the trial judge to apply the law to the facts, as established by the evidence in this case.
Observations (per Lord Scott of Foscote):
(1) The locus standi of S to bring this claim must be decided in trial, as it was not the function of Article 2(1) to add to the class of persons who under ordinary domestic law can seek financial compensation for the death of a person.
(2) Apart from the similarities between detained patients and prisoners, there were clear differences, as patients are detained for protection and not punishment. Accordingly, their personal autonomy must be protected. It would be difficult to prove whether there was a real and immediate risk of CS committing suicide that was known or ought to have been known, particularly in the absence of prior suicide attempts.
(3) These issues were not to be dealt with in this case, but should be dealt with at trial. The standard of protection required by Article 2(1) to be extended by the state to individuals within the state’s jurisdiction was flexible, and the circumstances alter cases. The trial judge must decide these issues.
