Healthcare - July 2010

At what cost “just satisfaction”?

Much has been written about the decision of the House of Lords on the preliminary issue of whether the NHS Trust owed an operational obligation to a detained patient in Savage v South Essex Partnership NHS Foundation Trust in December 2008. In March 2010 this matter was heard by Mr Justice Mackay in the High Court it having been referred to trial following the decision in 2008. 

The facts
A patient detained under Section 3 of the Mental Health Act 1983 made several attempts at absconding from the hospital.  She had also made suicide threats, including advising those caring for her that she was suffering from hallucinations telling her to jump out of the window.

On 5 July 2004, Mrs Savage absconded from the hospital, jumped in front of a train and was killed.  At Court, whilst recognising that the Claimant was not bringing the claim for a financial gain, Mr Justice Mackay awarded damages of £10,000 – an amount considered appropriate for “just satisfaction”.

Criticisms
The issue to be determined by the court, the CA having held that the NHS Trust owed an operational obligation, was whether there was a “real and immediate” risk Mrs Savage might self-harm or commit suicide.

Mr Justice Mackay was highly critical of the quality of the risk assessments performed on Mrs Savage together with actions (if any) taken in light of the assessed risk.  The Judge considered that Mrs Savage was not at risk of self-harm/suicide attempts when she was on the ward but that this became a “real and immediate” risk upon absconsion and one that the Defendant Trust should have been aware of.  The Judge decided that the Trust failed to do all that could reasonably be expected of it to avoid or prevent that “real and immediate” risk.

Future impact
The Judge emphasised the importance of the quality of risk assessments, of members of staff acting upon them and of regular reviews of the risks attached to individual patients.  It is important that staff are aware both by the actions of patients and also during handover between shifts of any risks posed by individual patients and of the frequency required to review those risks.  It may be that Trusts consider reviewing their risk assessment policies to reflect this case. 

Whilst the threshold of “real and immediate risk” is relatively high (in this case, it was held there was a 20% chance Mrs Savage might self-harm), the test for causation creates a much lower threshold - lower than the standard clinical negligence threshold of the “but for” test rather that, in an Article 2 claim, the Claimant merely has to prove that they “lost a substantial chance” that the deceased would not have committed suicide. 

Emma Galland, Solicitor
Weightmans LLP