Article 2 Claims
We have a limited amount of time to talk to you today, but in the time we do have, I thought I would pose 4 questions about Article 2 claims that I thought might be of interest.
- What is Article 2?
- What circumstances might give rise to a claim under Article 2?
- What does the pursuer have to prove to make a claim under Article 2?
- What is the value of a claim under Article 2?
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What is Article 2?
“(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.”
There are three duties on the state under A2:
- A duty to refrain from taking life save in exceptional circumstances
- A duty to conduct a proper and open investigation into deaths for which the state might be responsible (“the investigatory duty”) and
- A duty to protect life in certain circumstances: (i) a duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to life (“the adjectival duty”); and (ii) an “operational duty” to take steps in certain “well defined circumstances” to safeguard the lives of particular individuals.
Today we are going to focus on the third of these.
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What circumstances might give rise to a claim under Article 2(3)?
Recent cases have extended the apparent scope of this Article
If a patient is detained in hospital under mental health legislation then the situation will arise. The next speaker is also going to speak about the situation where they voluntarily place themselves under care in hospital.
Also, residential care and nursing homes for the elderly and disabled may involve the detention of patients in the care of a local authority or the NHS.
There are residential care homes which cater for three different types of resident: (i) permanent care homes for the elderly, (ii) homes for (young) adults with disabilities and (iii) homes for children. All of these may be run by both local authorities or NHS Trusts.
Care homes for the elderly may provide personal care or nursing care (medical care for dementia patients). Adults between the ages of 18 and 65 with disability or problems with drugs and alcohol dependency may be permanent or temporary residents in homes; and homes for children deal with children who are disabled or have emotional problems.
There are NHS Care Homes and Nursing Homes in Dundee (Glenlaw House) (NHS Tayside), Falkirk (Ercall Road Home) (NHS Forth Valley) and there are 17 in the Highlands (NHS Highlands)
This situation could also potentially arise in relation to children in care. Generally children placed in Children’s Homes will be placed in the care of their local authority care e.g. under supervision orders. An example is the Erskine Bridge suicide claims where two girls committed suicide whilst in the care of Argyll & Bute Council and the Good Shepherd children’s home. NHS staff may be involved in the assessment of such children who may have social and emotional difficulties. There are NHS residential homes for children with special needs but from my own research these appear to be run by local authorities or charities rather than being run by the NHS. As far as I am aware there are no NHS-run hospices for children (the only two in Scotland being run by a charity (CHAS)).
If any person in the state’s care dies, either at their own hand or the hands of another then there is a potential claim under Article 2. Examples from news reports include that of Liam McQuade, 26, Arbroath. He was admitted to the Susan Carnegie Centre at Stracathro Hospital in Angus. He was under close observations, but committed suicide whilst in the care of NHS Tayside in January 2013.
Apparently NHS Tayside are the only UK health authority to have had criminal charges taken against them for allowing a patient to commit suicide. In 2004 they were fined £10,000 for allowing a psychiatric patient Rhona McDonald, 37, Arbroath to hang herself in a ward where window fixtures had previously been identified as a suicide risk. Health Chiefs admitted responsibility for the death of this lady in 2001 at Sunnyside Hospital, Montrose.
Susan Carnegie Centre was the replacement for the Sunnyside Hospital and has accommodation for up to 52 inpatients including 25 general adult psychiatry beds as well as services for older people.
There is also the case of an unnamed woman who committed suicide in Hogmanay 2010/11 in Kyle Ward in Ailsa Hospital, Ayr, whilst in the care of NHS Ayrshire & Arran.
Nadine Dougall, Lecturer in the University of Stirling has done a research paper into suicide rates in Scotland following discharge from Scottish hospitals (2013) and notes that there were 772 suicides in Scotland in 2011 and this is the leading cause of mortality in young people. 14% of all suicides in Scotland occur within one month of discharge from hospital. 36% of all suicides occur within one year of discharge. This research is important in terms of how aftercare might be organised for people being dicharged from Hospital.
There may be a question of whether Ms Dougall regarded “discharged” as meaning physically left a Hospital, or did so when authority to detain them by virtue of a CTO had been suspended. An interesting issue arises – if a CTO was still in force and if the Hospital was aware of an imminent risk of Suicide, the Art.2 obligation could attach if “care and control” were capable of being exercised? As we will look at shortly, although a deceased commits suicide after leaving a hospital, a successful claim may still be made under A2.
Interesting comments have been made recently in R (on the application of Letts) v Lord Chancellor [2015] 1 WLR 4497 where the court held that the suicide of an involuntary psychiatric patient was capable of triggering the investigative duty under art.2, which arose irrespective of whether the state was in breach of its art.2 substantive duties. However, the precise limits of that principle were hard to define. The factors considered relevant by the courts concentrated on the circumstances when a mental patient could be said to be under the control or care of the state. It might take further cases to draw the boundaries with greater clarity.
(2) There were limits … The position in relation to cases other than mental health cases was also fact-sensitive and complex. There was a danger of over-reaching the issue and trespassing into issues not squarely before the court. Even in relation to mental health suicides, the outer limits of the automatic duty were not clear.
Today, we are focusing on Rabone and Savage which cover a situation where a mental patient commits suicide and the family sue the NHS, but before I turn to look at that in more detail, I want to draw your attention to another area where the NHS may become involved.
Selwood v Durham County Council, Tees, Esk & Wear Valleys NHS Foundation Trust, Northumberland, Tyne & Wear NHS Foundation Trust [2012] EWCA civ 979
This was a claim by an individual against her employers and two NHS Trusts.
Ms Selwood brought an action against the Council (her employer) along with two NHS Trusts with whom she collaborated in the course of her work. She was a senior social worker employed by Durham County Council in their Children in Need Team in South Easington. She alleged that all three had been negligent and she had been exposed to danger, in the course of her employment, from a man who was mentally disturbed and had threatened to harm her (she was his daughter’s social worker). She also claimed a breach of A2. He attacked her with a long-bladed knife and caused very serious injuries. The two Trusts applied (successfully) to strike out her claim on the basis they did not owe her any duty of care in respect of the action of a third party. The appellant appealed that decision to the Court of Appeal.
The court held that Rabone was not primarily concerned with the operational duty of an NHS Trust towards a person who might be at risk from a potentially dangerous voluntary mental patient. It was arguable that the position of an NHS trust was analogous to the position of the police who may be under an operational duty to warn a person whom they know if at real and immediate risk of being killed by a person with whom they have been involved. All depends on whether the necessary factual nexus exists and accordingly all issues were sent for trial.
This is more akin to the Mitchell v Glasgow City Corporation 2009 SC (HL) 21 case and the tripartite relationship which exists between the NHS, patients in their care and their employees. Again, an A2 claim may arise where there is a real danger to employees of which the NHS Trust is or ought to be aware.
The Selwood case was mentioned in the recent case of Michael v Chief Constable of South Wales [2015] 2 WLR 343 which ultimately went to the Supreme Court. The mother of the late Joanna Michael appealed against a decision granting summary judgment to the chief constable on her claim against them in negligence. The chief constables cross-appealed against a decision that a claim under ECHR A2 should proceed to trial.
Ms. Michael had made a 999 call from her home in South Wales in the early hours of the morning. The call was picked up by Gwent Police. Her former boyfriend Mr Williams had broken in and found her with another man. She told the operator that her ex-partner had assaulted her and that, although he had left, he had threatened to return imminently and kill her. There was a dispute about whether the operator heard the word “kill” or misheard it as “hit”. The operator relayed the details of the call to South Wales police, but did not mention the threat to kill.
South Wales police downgraded the priority of the call, deeming an immediate response unnecessary. Ms Michael made a second 999 call about 15 minutes after the first. In it, she could be heard screaming. Police officers arrived at her home within eight minutes of the second call to find that she had been killed by her ex-partner. Data held by South Wales police recorded a history of domestic violence towards M by her ex-partner.
F brought claims against Gwent and South Wales police in common law negligence and in respect of ECHR A2.
The Court of Appeal granted summary judgment to the police on the negligence issue, but held that the A2 claim should proceed to trial.
The issues were whether the police (i) owed a common law duty of care to M; (ii) had assumed responsibility to take reasonable care for M’s safety; (ii) had, arguably, breached A2.
The Supreme Court dismissed the appeal and the cross-appeal (Hale and Kerr JJ.S.C. dissenting)
The police did not owe a common law duty of care in negligence to a specific member of the public where they were aware, or ought reasonably to have been aware, of a threat to her life or physical safety. Nor did they owe such a duty where a member of the public had given them apparently credible evidence that an identifiable third party presented a specific and imminent threat to her life or physical safety. But the claimants were allowed to proceed with their Article 2 claim for damages and there were clear indications that Parliament would have to change the law in this regard if it was considered appropriate due to the issue of domestic violence and the shocking statistics.
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What does the pursuer have to prove to make a claim under Article 2?
It is this aspect of the duty under A2 that I want to focus on today, namely:
- A positive duty to protect life in certain circumstances:
- an “operational duty” to take steps in certain “well defined circumstances” to safeguard the lives of particular individuals.
The pursuer should be offering to prove the following:
- The pursuer is a victim [section 7(1)]
- That the defenders are a public authority [s. 6(1)]
- That they have acted unlawfully, i.e. in contravention/in a way incompatible with Article 2 [section 8(1)]
The pursuer’s claim for damages (or relief) arising out of section 8, states:
8.— Judicial remedies.
(1) In relation to any act (or proposed act) of a public authority which the court finds is (or would be) unlawful, it may grant such relief or remedy, or make such order, within its powers as it considers just and appropriate.
How can a pursuer prove that the public authority acted unlawfully?
Question 1: Does the “operational duty” apply?
There are certain factors which point the way to the answer although these are simply relevant and not a definitive guide.
- It will exist where there has been an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control) [Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681 at paragraph [5]]”[also see comments in Mitchell v Glasgow City Council about assumption of responsibility]
- In circumstances of particular vulnerability, the duty may exist even where there has been no assumption of control by the state such as where the local authority fails to exercise powers to protect a child [Z v UK (29392/95)(2002) 34 EHRR 3
- The nature of the risk: an ordinary risk of the kind that individuals in the relevant category should reasonably be expected to take will not give rise to a breach of the obligation, an exceptional risk may do so. [Stoyanovi v Bulgaria (42980/04)]
[per Lord Dyson in Rabone paragraph [22]
The courts “must take into account” any judgment of the ECtHR [section 2 of the HRA 1998], but the rights under A2 will be extended at common law on a case by case basis and it is not easy to define the precise extent of the application of A2 in the future.
For there to have been a breach of A2, it is always necessary for the pursuer to prove that there had been a “real and immediate” risk to life.
A “real risk” has to be “objectively verified” [per Lord Carswell Re Officer L [2007] UKHL 36 and approved by Lady Hale in Rabone [107]] and not remote or fanciful [Rabone per Lord Dyson [38]].
For a risk to be “immediate” it has to be “present and continuing” [per Lord Carswell Re Officer L [2007] UKHL 36]
A real and immediate risk is not the same as a foreseeable risk. It will be very difficult to prove and will not arise in many situations, although it will be easier to prove in relation to a patient in a hospital or health care setting, particularly where they have a psychiatric history or a history of self-harming. It may also apply to those with dementia or young children who may be particularly vulnerable, even if they have no previous history of self harming and are not suicidal.
Of particular interest to this audience, is the fact that this “operational duty” has been held to arise in relation to psychiatric patients detained in a public hospital under mental health legislation, as in the case of Savage (below) and I am going to come on to that in a moment.
In Watts v United Kingdom (53586/09)(2010) 51 EHRR SE5 and the applicant complained that her transfer from an existing care home would reduce her life expectancy. The court held that a badly managed transfer of elderly residents could have an adverse impact on their life expectancies and that A2 was applicable to this situation, although she ultimately failed on the facts in the absence of expert evidence about the impact on her life expectancy.
Lord Rodger considered the nature of the duties in Savage and emphasised that the pressing practical problem for the authorities is for them to do what can reasonably be expected of them in the circumstances to prevent the suicide [39]. The operational duty is not particularly stringent but the threshold (real and immediate risk to life) for triggering the duty is high.
Question 2: If the operational duty applies, has there been a breach?
If the “operational duty” applies then it is up to the pursuer to prove that a breach has occurred. The standard is one of reasonableness [per Lord Dyson in Rabone [43]].
This brings into consideration the circumstances of the case and the ease or difficulty of taking precautions and the resources available [83]. Although you would want to have pleadings on the matter if you want to present any argument.
Savage v South Essex Partnership NHS Foundation Trust [2009] 1 AC 681
Mrs Carol Savage was a mental patient with a long history of mental illness. She had been an in-patient on previous occasions and detained for treatment for paranoid schizophrenia under section 3 of the Mental Health Act 1983 on an open acute psychiatric ward in an NHS hospital. After several attempts to leave she succeeded in absconding from the hospital and committed suicide. Her daughter brought an action against the NHS trust responsible for the hospital claiming damages under sections 6, 7 and 8 of the HRA1998 for, inter alia, breach of the deceased’s right to life under A2. The trust denied liability and applied for the determination, as a preliminary issue, of the proper test to establish a breach of the right under article 2. The judge made a declaration that the claimant would be required to show that the trust had been guilty of, at the least, gross negligence sufficient to sustain a charge of manslaughter. The claimant having conceded that the allegations of negligence as to, inter alia, whether there had been a failure to take reasonable measures to prevent the risk of the deceased absconding from hospital did not amount to gross negligence, the judge gave summary judgment for the trust.
The Court of Appeal allowed the claimant’s appeal on the ground that a duty to take steps to prevent a detained mental patient from committing suicide arose if the authorities knew or ought to have known that there was a real or immediate risk of her doing so and in those circumstances the claimant had only to show that the trust had failed to take reasonable steps to avoid that risk.
On appeal by the trust
Held , dismissing the appeal, that there were different aspects to health authorities’ article 2 obligation to protect life which were complementary rather than alternative; that authorities were under an obligation to adopt appropriate general measures to protect the lives of patients in hospitals, which included ensuring that competent staff were recruited, high professional standards maintained and suitable systems of work put in place; that with regard to mental patients, and especially detained mental patients, that obligation required the authorities to take account of their particular vulnerability, including the heightened risk of suicide, and to have in place appropriate systems to protect them; that, if the hospital authorities had performed those obligations, casual acts of negligence by members of staff would give rise to a domestic claim in damages but not a breach of article 2 ; but that, where members of staff knew or ought to have known that a particular detained mental patient presented a real and immediate risk of suicide, article 2 imposed a further operational obligation on hospital authorities, distinct from and additional to their more general duties, which required the staff to do all that could reasonably be expected of them to prevent the patient committing suicide; and that, accordingly, the case would be allowed to go to trial for the judge to apply the law to the facts as established by the evidence.
But in order to determine whether there has been a breach of duty, it is important to identify what duties existed in relation to hospital authorities.
Lord Rodger in Savage focused on what duties were imposed on hospital authorities. He separated out the duties into three chapters:
- The duty to protect the lives of hospital patients [44 – 45; 49];
- The duty to protect the lives of patients suffering from mental illness [46 – 48];
- The duty to protect detained patients’ lives [49].
A pursuer would be expected to have an expert report identifying the specific duties applicable to the circumstances of the case.
Looking at these in turn:
1. The duty to protect the lives of hospital patients [44 – 45];
Mrs Savage was a detained patient but first and foremost she was a patient in a hospital. A2 requires hospitals to have regulations for the protection of their patients’ lives. The state is under an obligation to adopt appropriate (general) measures to protect the lives of patients in hospitals. This involves e.g. ensuring that competent staff are recruited, that high professional standards are maintained and that suitable systems of work (and plant and equipment) are in place. If the hospital authorities have performed these obligations, casual acts of negligence by members of staff will not give rise to a breach of A2.
2. The duty to protect the lives of patients suffering from mental illness [46 – 48];
This is a relevant factor to the authorities’ obligations under A2 due to their vulnerability. The authorities will have to take account of the vulnerability of these patients including any heightened risk they may commit suicide. At common law he pointed out that a hospital is under a duty to take precautions to avoid the possibility of injury, whether self inflicted or otherwise, occurring to patients who it knows, or ought to know, have a history of mental illness [Thorne v Northern Group Hospital Management Committee (1964) 108 SJ 484 per Edmund Davies (not a detained patient)]
In Scotland, a duty to have appropriate systems in place in case women in a maternity ward developed a mental illness and tried to harm themselves was assumed by Lord Cameron in McHardy v Dundee General Hospitals’ Board of Management 1960 SLT (N) 19 (unreported on this point) (not detained)].
Accordingly, it is clear that if it turned out that the hospital authorities had not had in place appropriate systems e.g. for preventing patients, who were known to be suffering from mental illness, from committing suicide, not only would the authorities be potentially liable under domestic law for the resulting suicide but they would also have violated one of their obligations under A2 [48].
3. The duty to protect detained patients’ lives [49].
The fact a patient is detained is also a relevant factor under A2. Patients who have been detained, because their health and safety demands that they should receive treatment in hospital, are vulnerable. They are vulnerable not only by reason of their illness (which may affect their ability to look after themselves) but also because they are under the control of the hospital authorities. In detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution.
The obligations on the hospital authorities for detained patients under A2 include an obligation to protect those patients from self harm and suicide. The very fact that patients are detained carries with it a risk of suicide against which the hospital authorities must take general precautions.
It may be of interest to any practitioner considering a claim in this area to consider the recent guidance issued by the Supreme Court in Woodland v Swimming Teachers Association [2014] AC 537 regarding common law claims and non-delegable duties of care owed by local authorities and hospitals in relation to vulnerable persons in their care and control.
Lord Rodger noted in Savage that when deciding on the most appropriate treatment and therapeutic environment for detained patients, medical staff would have to take proper account of the risk of suicide. Those who presented a comparatively low risk could be treated in a more open environment and those who presented a greater risk would need to be supervised to an appropriate extent and those presenting the highest risk would have to be supervised in a locked ward. This risk may vary with fluctuations in their medical condition. They would have to balance the potentially adverse effect of too much supervision on the patient’s condition and the possible positive benefits expected from a more open environment. That would involve clinical judgment.
If there is a real and immediate risk of a patient committing suicide then A2 imposes an operational obligation on the medical authorities to do all that can reasonably be expected of them to prevent that [66]. If they fail to do so, they are at risk of being held liable not only in negligence, but there will also be a violation of the operational obligation under A2 to protect the patient’s life [72]
The HOL allowed the case to go to trial and the report of the outcome is in:
Savage v South Essex Partnership NHS Foundation Trust [2010] EWHC 865 (QB)
Carol Savage died on 5 July 2004 by jumping in front of a train at Wickford station in Essex. At the time of her death she was detained as a patient at Runwell Hospital. The court allowed the claim and held that (i) the claimant was a victim within the meaning of s. 7 of the HRA 1998. The deceased was the mother of the claimant and they were close. (ii) the defendant failed in its positive obligation to protect the life of Mrs Savage under A2.
Question 3: What about causation?
The HOL in Savage did not explore the issue of causation as it was not necessary for the purposes of determining the case before them. However, this was an issue that was considered by Mackay J when the case came before him for trial.
Issue: at common law a practitioner would ask themselves the question whether ‘but for the breach of duty the deceased would have lived’. But if someone wants to commit suicide then they are going to try again and it’s only a matter of time before they succeed isn’t it?
You cannot stop people committing suicide if they want to…
The question – whether the defenders breach of duty caused or materially contributed to the death of the deceased – is it the same for a claim under Article 2?
I would like to focus on some issues regarding causation as I am of the view that the test is different, an easier hurdle to cross, for Article 2 cases as opposed to common law claims.
Savage v South Essex Partnership Foundation Trust [2010] EWHC 865; and [2010] HRLR 24 per Mackay J (QBD) at paragraphs [79] and [89]
He was of the view that there were two stages to the exercise he faced.
- whether the defendant had the requisite knowledge, actual or constructive of a real and immediate risk to the life of Carol Savage from self harm; and
- whether the defendant failed to do all that could reasonably have been expected of it to avoid or prevent that risk
Once the test is triggered and consideration turns to whether they had done all that could have reasonably been expected of them, unsurprisingly the ECtHR has held that this is a question that can only be answered in the light of all the circumstances of any particular case. Lord Rodger in Savage [42] said that this second limb duty does allow for competing considerations but “…the immediacy of the danger to life means that, for the time being, there is in practice little room for considering other, more general matters concerning his treatment. There will be time enough for them, if and when the danger to life has been overcome. In the meantime, the authorities’ duty is to try to prevent the suicide.” Finally, at this second stage
“the test for causation is not the English “but for” test, but a looser one; the claimant does not have to show that had the trust acted appropriately there would probably have been no death, but merely that she has “lost a substantial chance of this” – Van Colle, per Lord Brown of Eaton-under-Heywood at [138].”
In Van Colle v Chief Constable of Hertfordshire [2008] UKHL 50 para 138:
“Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter – the one year (albeit extendable) limitation period under s. 7(5) of the HRA 1998 comparable to the one year permitted for defamation claims intended analogously, to vindicate a claimant’s reputation. I t is also why section 8(3) of the Act provides that no damages are to be awarded unless necessary for just satisfaction. It also seems to me to explain why a looser approach to causation is adopted under the Convention than in English tort law. Whereas the latter requires the claimant to establish on the balance of probabilities that, but for the defendant’s negligence, he would not have suffered his claimed loss – and so establish under Lord Bingham’s proposed liability principle that appropriate police action would probably have kept the victim safe – under the Convention it appears sufficient generally to establish merely that he lost a substantial chance of this.”
In the case of Savage it was held by the court that there was a real prospect or substantial chance that had Mrs Savage been made subject to level two observations at 15 or even 30 minute intervals she would not have slipped away unnoticed in the way she did on the day of her death. All that was required to give her a real prospect or substantial chance of survival was the imposition of a raised level of observations, which would not have been an unreasonable or unduly onerous step to require of the defendant in the light of the evidence in this case.
If you are acting for a pursuer then you should be focusing in your pleadings on the issue of causation and perhaps consider producing an expert report supportive of this “loss of a substantial chance” of survival (depending on the circumstances).
If you are acting for the defenders, what you may find is the pursuer offering to prove “but for” in the pleadings. So be it. If you are acting for the defenders, then leave it be. That is a higher hurdle for them to meet and if they offer to do so then that is up to them. I am not recommending you take them to debate on this issue to have the bar lowered. My advice is keep quiet.
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What is the value of a claim under Article 2?
Section 8 of the HRA 1998
“(2) But damages may be awarded only by a court which has power to award damages, or to order the payment of compensation, in civil proceedings.
(3) No award of damages is to be made unless, taking account of all the circumstances of the case, including—
(a) any other relief or remedy granted, or order made, in relation to the act in question (by that or any other court), and
(b) the consequences of any decision (of that or any other court) in respect of that act,
the court is satisfied that the award is necessary to afford just satisfaction to the person in whose favour it is made.
(4) In determining—
(a) whether to award damages, or
(b) the amount of an award,
the court must take into account the principles applied by the European Court of Human Rights in relation to the award of compensation under Article 41 of the Convention.
What is just satisfaction?
In Rabone Lord Dyson indicated that awards for A2 breach in Strasbourg range from £5,000 to £60,000 depending on a number of factors. These include the closeness of the family link (victim and deceased); the nature of the breach and the seriousness of the non-pecuniary damage suffered [para 85].
Savage an award of £10,000 was given for just satisfaction although it was recognised that damages could never compensate the claimant for the loss of her mother and could only be a token acknowledgement that the defendants ought properly to give her some compensation to reflect her loss. It should be noted that the claimant openly stated that she did not bring the action for financial reward and there was no element included in the award for the “adjectival duty” under A2 as there had been a full inquest which properly investigated the death.
Van Colle the Court of Appeal (whose decision in this respect was not varied by the HOL) reduced the compensation from £15,000 to £10,000 and the individual compensation to each parent from £17,500 to £7,500.
Reynolds v United Kingdom (2012) 55 EHRR 35
The applicant’s son had been diagnosed with schizophrenia in 1998. On 16 March 2005 he was hearing voices in his head telling him to kill himself and he was taken to hospital (run by an NHS Trust). During assessment he confirmed he did not want to kills himself and he was admitted as a voluntary patient to a Unit for which the Council were responsible. He was assessed as low suicide risk. He had reduced his medication in order to drink and socialise at the weekend and his psychotic symptoms had returned but he had stabilised rapidly as he had already re-taken his medication that morning. The voices had diminished and weren’t troubling him anymore. He had no history of self harm or attempted suicide and even when having hallucinations had sought help. During the evening he was found wandering outside the building and at 10.30pm he broke a window in his room and fell to his death. There was an inquest held and the applicant did not qualify for legal aid and was unrepresented at the inquest. An open verdict was returned as there was insufficient evidence of an intention to commit suicide. The applicant obtained legal aid and issued an action for damages under s. 7 of the HRA 1998 against the NHS Trust (assessment at the hospital) and the Council (occupiers of the voluntary psychiatric unit where he was admitted) arguing they had failed to adequately discharge their duties to the deceased in breach of inter alia A2 and 13 and they had failed to ensure his appropriate placement, failed to ensure the Unit was safe and failed adequately to assess the suicide risk or to admit him for in patient care. A civil claim for damages was struck out as disclosing no cause of action on the basis of Savage (the 2006 decision later overturned on appeal). The applicant alleged that there had been a violation of Article 2 alone and with Article 13 (“everyone shall have an effective remedy before a national authority…”. Held that there had been a violation of A13 with A2.
The applicant claimed that she suffered bereavement and distress following her son’s death which was compounded by her distress and frustration at the failure of the state to provide an adequate civil remedy. She claimed 25,000 Euros for non pecuniary damages. The court noted that the applicant did have the benefit of a detailed inquest which elucidated the central facts of the present case, but it accepted that the lack of civil remedy likely caused some frustration and distress so that the court awarded the applicant the sum of 7,000 Euros for non pecuniary damages and 8,000 Euros costs.
Rabone v Pennine Care NHS Foundation Trust [2012] 2 AC 72
Under the Fatal Accidents Act 1976, victims of a breach of duty are entitled to compensation known as a “bereavement award”. These victims will also be entitled to damages under the HRA 1998.
Mr Rabone brought a claim on behalf of his daughter’s estate under the Law Reform (Misc Prov) Act 1934 seeking compensation for funeral expenses and his daughter’s pre-death pain and suffering. That claim was settled in 2009 without admission of liability and the defendants paid £7,500. A year later they made a formal admission that they had been negligent in granting her leave to go home. The ordinary law of tort in England does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child [per Lady Hale, para [91] – [92]]. The claimants were not entitled to the statutory bereavement award under the FAA nor were they financially or otherwise dependent on their daughter and having no other means of redress they sought recognition for their own suffering by bringing claims under the HRA 1998.
They would have been awarded £1,500 each (had they not lost at trial) but the Court of Appeal said £5,000 each was more appropriate. In the Supreme Court, Lord Dyson indicated that had they appealed he would have increased the awards further [85]. Interestingly, a person only ceases to be a victim within the meaning of A34, only if two conditions are satisfied, namely that the public authority has (i) provided adequate redress; and (ii) acknowledged either expressly or in substance the breach of the Convention [per Lord Dyson in Rabone para 49]
The extent to which the courts would make awards in line with the English cases and Strasbourg decisions arising out of English cases is not entirely clear. In England, relatives may be entitled to an award known as a “bereavement award” under the Fatal Accidents Act 1976. They were not entitled to a claim for non pecuniary damages such as the equivalent of a “loss of society” award or an award for grief and loss under the Damages (Scotland) Act 2011.
In Williams v Hackney LBC [2015] EWHC 2629 parents were awarded damages against a local authority of £10,000 which had kept their 8 children in foster care after the expiry of a police protection order. This was on the basis that the parents had not been fully informed of matters relating to the order under the Children Act 1989, namely their right to seek independent legal advice before signing the consent order; and their right to take the children away from the local authority.
What is clear is that in light of the above, none of the claimants would have been awarded more than £10,000.
If there is no previous award for “bereavement” (as in Reynolds) then the award under A2 will arguably be greater. If there has been a previous award for “bereavement”, then the award for the breach of A2 should arguably be lower.
Also, if there has been an inquest (as in Reynolds) or an FAI then the award may be arguably lower under any A2 claim than otherwise.
Also, if there has been an early public apology or admission, then again the award may be lower.
Interestingly, if you are handling a case involving distant relatives (who may not have a claim under the Damages (Scotland) Act 2011 they may still have an A2 claim. For example, a step-sibling who never lived as part of the family cannot claim under the 2011 Act but arguably would have an A2 claim.
If you’re claim involves large families the strength of the actual relationship will have to be explored.
Timebar
In valuing the claim under A2, you may wish to ensure that you have pleadings regarding timebar where appropriate. Section 7(5) of the HRA 1998 imposes a one year limitation period for such claims but with provision for the court to extend that period if it is “equitable” to do so having regard to all the circumstances. Tactically this may give you a stronger bargaining position when discussing damages with the pursuer’s agents.
The Supreme Court in Rabone allowed the claim to be lodged 16 months after the Patient’s death. If it is a well-founded claim the court may be loathe to see it fail due to this strict time limit.
I am also aware that in the circumstances of the Mitchell case the defenders (local authority) decided not to take the point at all.
