piBlawg

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A collaboration between Rebmark Legal Solutions and 1 Chancery Lane

Savage v South Essex Partnership NHS Foundation Trust: will the Court of Appeal agree with the first instance decision?

In Anna Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB), the Claimant claimed a declaration and damages under the Human Rights Act 1998 after her mother Carol Savage (“CS”), a patient detained in a psychiatric ward under the Mental Health Act 1983, absconded and committed suicide in July 2004.  The case had already been to the House of Lords on a preliminary point on the correct test for determining whether the NHS trust had violated CS’s article 2 right to life (Savage v South Essex Partnership NHS Foundation Trust (2008) UKHL 74, (2009) 1 AC 681).  Applying the test laid down by the House of Lords, Mackay J held that the Trust had violated article 2 and awarded £10,000 damages for just satisfaction.

The issues were (a) whether the Trust knew or should have known there was a real and immediate risk of CS committing suicide (b) whether the Trust should have taken steps that would have had a substantial chance of preventing the suicide (c) whether the Claimant was a “victim” entitled to bring proceedings under the 1998 Act and (d) what remedies should be granted.

The Judge was critical of the Trust’s failure to comply with its policies on risk assessment and observation and decided (a) the Trust should have known there was a real and immediate risk of CS absconding and that this – because her mental state was so poor that “anything could happen” –amounted to knowledge of a real and immediate risk of suicide (b) 15 or 30 minute observations should have been imposed and would have had a substantial chance of preventing the suicide (c) the Claimant, as CS’s daughter, was a “victim” and entitled to bring proceedings (this aspect of the decision has been recently approved by the Court of Appeal in Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698) and (d) the Claimant was entitled to both a declaration and damages.

The Defendant has sought and obtained permission to appeal and the case is due to be heard in the Court of Appeal in February 2011.  Do you think the High Court reached the right conclusion?

 

 

Comments (1) -

  • Simon Readhead Q.C.

    11/19/2010 9:19:55 AM |

    The Court of Appeal will need to have regard to the fact that the law in relation to hospitals appears to developing differently to that in respect of prisons although the relationship of control and vulnerability is similar in both. Following Morgan arguably the common law goes further in the protection it affords to hospital patients than the Convention but not as far as the Convention in the protection it provides to prisoners.

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