Mental HHealth - July 2010

At what cost ‘just satisfaction’?

The obligation that the ‘right to life’ imposes on mental health services has now been clarified

Much has been written about the decision of the House of Lords, made in December 2008 in Savage v South Essex Partnership NHS Foundation Trust, on the issue of whether the trust owed an operational obligation to a detained patient, so that her relatives could recover damages after she killed herself. In March 2010, this matter was heard by Mr Justice Mackay in the High Court, it having proceeded to trial following the earlier decision. 

The facts
Mrs Savage, who was detained in hospital under section 3 of the Mental Health Act 1983, made several attempts to abscond.  She had also threatened suicide, informing those caring for her that she was experiencing hallucinations that told her to jump out of a window. On 5 July 2004, Mrs Savage absconded from the hospital, jumped in front of a train and was killed.  At trial, the judge, though recognising that the claim had not been brought for financial gain, awarded damages of £10,000 – a sum he considered appropriate for ‘just satisfaction’.

Criticisms
The House of Lords having decided that the trust owed an operational obligation to Mrs Savage, the issue to be determined now was whether there was a “real and immediate” risk that she would harm herself or commit suicide.  Mackay J was highly critical of the risk assessments performed on Mrs Savage, and of the actions (if any) taken in light of the assessed risk.  He held that she was not at risk of self-harm or suicide when she was on the ward, but that this changed, and there was a ‘real and immediate’ risk, once she absconded. He said the trust should have been aware of this change, and that it had failed to do all that could reasonably be expected of it to avoid or prevent the new risk.

Future impact
The judge emphasised the importance of risk assessments, of members of staff acting upon them, and of regular reviews of the risk posed by individual patients. He said staff should be aware, both from the actions of patients and from information provided by colleagues from earlier shifts, of any risks posed by individual patients and the frequency with which those risks should be reviewed. NHS hospital trusts might wish to consider reviewing their risk assessment policies in that regard. 

Whilst the threshold of “real and immediate risk” is relatively high – here, there was held to be a 20 per cent chance that Mrs Savage would self-harm - the test for causation creates a much lower threshold. It is lower than the standard clinical negligence threshold created by the ‘but for’ test. In a claim brought under Article 2 of the ECHR, a claimant merely has to prove that a substantial chance was lost to prevent the deceased committing suicide. 

Emma Galland, Solicitor
Weightmans LLP

The decision of the House of Lords in this case may be found here.

The most recent decision may be found here.