European convention on human rights: duty to preserve life
Kay J’s preferred approach is mirrored in the decisions under the European Convention. The Commission has held that force-feeding a prisoner who was on hunger strike was not a breach of the right to freedom from inhuman and degrading treatment (Art 3). It concluded, given that Art 2 (the right to life) imposes ‘in certain circumstances’ a duty to take positive action to preserve life, that it was incumbent on the State in particular to take:
‘active measure to save lives when the authorities have taken the person in question into their custody.’
However, the force-feeding of a prisoner in Nevmerzhitsky v Ukraine was a breach of Art 3 where the detaining authorities had failed, at the time of providing the treatment, convincingly to demonstrate the medical necessity for such acts.
In Keenan v UK, it was noted that Convention case law establishes that Art 2 (the right to life) is not exclusively concerned with intentional killing by the use of force by agents of the State but also imposes a positive obligation on the State to take appropriate steps to safeguard lives. The European Commission on Human Rights determined that prison authorities had an obligation under Art 2 to take appropriate steps to safeguard the lives of the prisoners under their control:
‘When depriving an individual of his liberty, the authorities thereby assume a responsibility for his welfare, the individual’s autonomy to undertake that responsibility for himself having been largely removed.’
The approach adopted in Keenan, imposing a positive obligation to protect prisoners whose lives are in danger, applies to patients detained under the MHA and acutely vulnerable patients who are not detained under the MHA but who arguably could be. In Savage v South Essex Partnership NHS Foundation Trust the House of Lords considered the scope of Art 2 in a case where Mrs Savage, a woman with a diagnosis of paranoid schizophrenia, absconded from hospital and took her own life while being detained for treatment under s 3 of the MHA. In applying the reasoning in Keenan the court held that where the medical authority knew, or ought to have known, that an individual patient was a suicide risk and there was a ‘real and immediate risk to life’, Art 2 requires those caring for the patient to do all that could reasonably have been expected of them to prevent the suicide from occurring.
However, in Keenan the Commission recognised that limits have to be placed on the obligation to interfere and intervene. No regime which respects prisoners or patients as human beings can ensure that no attempts are made to self-harm. Just as in Keenan, the court in Savage was mindful of the competing claims of personal autonomy and the need to take these into account when considering the scope and nature of any interference required. It was in relation to those rights of liberty and autonomy that Baroness Hale observed:
‘… the steps taken must be proportionate. If this is so in prison, it must even be more so in hospital, where the objectives of detention are therapeutic and protective rather than penal.’
Lord Scott stated that it behove the hospital to:
‘… respect their personal autonomy and to impose restrictions on them to the minimum extent of strictness consistent with the need to protect them from themselves … the hospital were, in my opinion, entitled, and perhaps bound, to allow Mrs Savage a degree of unsupervised freedom that did carry with it some risk that she might succeed in absconding. They were entitled to place a value on her quality of life in the Hospital and accord a degree of respect to her personal autonomy above that to which prisoners in custody could expect.’
Savage only examined the scope of Art 2 in relation to detained patients. However, the reasoning in the judgments was extended in Rabone to patients admitted informally to psychiatric settings (as was the case originally for Mrs Savage). In Rabone, a voluntary psychiatric patient was allowed home for two days in circumstances where there was a real and immediate risk of her death. She hanged herself while on leave. The Supreme Court considered that the difference between her situation and that of a patient compulsorily detained under the MHA was one of ‘form not substance’, where if she had insisted on being discharged she could and should have been detained under the MHA, and had she been refused permission to leave, she would not have insisted upon it. The hospital trust had assumed responsibility for her care and by reason of her mental state, she was extremely vulnerable. In theory, the same reasoning could apply to an acutely vulnerable patient admitted to a general hospital, provided their mental state was known.
In terms of imposing liability in any given case, the threshold for triggering the duty is high. There must be a risk to life. That risk must be real and immediate – in Keenan it was obvious that the risk of suicide was real but there was no particular indication on the day in question. Those responsible must also be aware of the risk at the time – not sooner or later. Lord Dyson in Rabone endorsed an interpretation of ‘real’ as ‘substantial or significant, and not remote or fanciful’ and, although warning of the pitfalls of putting a gloss on the meaning of ‘immediate’, stated:
‘I think that the phrase “present and continuing” captures the essence of its meaning.’
The legal test formulated in Reeves, Savage and Rabone thus predicates a duty to prevent suicide on the awareness of risk. There is a gap between this approach and the actual ability of professionals to foresee accurately and protect against such risk.
The National Confidential Inquiry’s 2019 annual report noted that ‘the immediate risk of suicide at the time of ﬁnal service contact was judged by clinicians to be low or not present for the majority of patients who died by suicide.’ Their recommendation was that ‘risk assessment tools should not be seen as a way of predicting future suicidal behaviour’.
Further, the Inquiry’s 2017 survey into suicide by children and young people specifically addressed the worrying prevalence of so-called ‘out of the blue’ suicides in the young. Out of 316 deaths by suicide in children and young people under 20, and an estimated 124 deaths by suicide in the 20 – 24 age group, 29% and 35% respectively had never expressed suicidal thoughts or previously self-harmed.