Article 2 in Psychiatry – Savage and beyond

The Right to Life, enshrined in Article 2 of the European Convention on Human Rights (ECHR), holds profound implications for the care and treatment of individuals within mental health services. Article 2 declares that “Everyone’s right to life shall be protected by law.” This publication explores the evolution of legal understanding concerning the positive obligations imposed on Nation States to safeguard the lives of those entrusted to their care. Savage v South Essex Partnership NHS Foundation Trust [2007] UKHL 37 was a most important waypoint.

The Savage cases (2007-2008), arising from the suicide of a detained mental health patient, established that Article 2 (the Right to Life) of the European Convention on Human Rights applies to detained patients, placing a positive obligation on authorities to protect them from suicide. That meant that hospitals and mental health professionals have an “operational duty” to take reasonable steps to prevent suicide in patients where a real and immediate risk is known or ought to be known.

[The complex issues in this exploration cannot be simplified into a 30-second read. This article not being limited by word count, has the advantage over a paper-journal and can provide readers with optional depth.]

The reach of Article 2 then grew. Building on Savage, the case of Rabone 2012, involved a voluntary mental health patient, who committed suicide while on approved leave from a hospital. The UK Supreme Court held that the hospital had a positive obligation under Article 2 of the European Convention on Human Rights (ECHR) to protect her right to life, even though she was not detained under the Mental Health Act 1983.

Thereafter, the law said that the operational duty was owed to both detained and informal patients, compelling a more proactive approach to risk assessment and suicide prevention within mental health settings.

The analysis in this article will explore key judgments, tracing the development of this crucial aspect of human rights law and its impact on contemporary psychiatric practice in the United Kingdom. By examining the trajectory of legal interpretation and its practical consequences, this article aims to contribute to the ongoing discourse surrounding the effective protection of vulnerable individuals within the mental health system.  

Savage – detained patients

It is important to rewind to the two cases of Savage, spanning from 2007 to 2008. These showed the evolution of Article 2 in mental health care. The cases unfolded in two key stages, both centered on the tragic suicide of a detained mental health patient, Carol Savage, and the extent of the hospital’s responsibility to protect her right to life.

The first stage, culminating in 2007, involved a claim brought by her husband, alleging negligence and a breach of Article 2 of the European Convention on Human Rights. The High Court initially ruled that while the hospital had been negligent, there was no separate operational duty under Article 2 to prevent Mrs. Savage’s suicide, as she had not demonstrated a history of deliberate self-harm. This decision was upheld by the Court of Appeal, which emphasised that the successful negligence claim provided adequate redress for the family’s loss.

However, the case took a significant turn when it reached the House of Lords in 2008. In this second stage, the Lords overturned the previous rulings, establishing a crucial precedent. They held that there WAS an operational duty to protect the life of a detained mental health patient, even in the absence of previous self-harm. This duty stemmed from the State’s heightened control over individuals deprived of their liberty and its positive obligation to safeguard their right to life. This landmark decision broadened the understanding of “real and immediate” risk, considering factors beyond past behaviour, such as the patient’s mental state and the hospital’s degree of control. The Lords’ judgment in Savage thus clarified the scope of Article 2 obligations for detained patients, emphasising the need for proactive measures to prevent suicide within mental health settings. This ruling paved the way for further developments in mental health law, including the extension of the duty of care to voluntary patients in the subsequent Rabone case.

Rabone 2012 – a powerful landmark – informal patients

The case of Rabone reached the UK Supreme Court through a series of legal proceedings that highlighted the complexities of balancing patient autonomy with the duty of care. Key facts of Rabone case. Optional: Important paragraphs from Rabone.

Initially, Melanie Rabone’s parents brought a negligence claim against the Pennine Care NHS Trust following their daughter’s suicide while on approved leave from a mental health facility. This claim was settled pre-trial. However, they also sought to establish a breach of Article 2 of the European Convention on Human Rights, arguing that the Trust had failed to protect Melanie’s Right to Life.

This human rights claim was initially dismissed by the High Court, which held that there was no operational duty to prevent Melanie’s suicide, as she was a voluntary patient. The Court of Appeal upheld this decision, emphasising that the settled negligence claim provided sufficient redress.

Undeterred, the Rabone family appealed to the Supreme Court, which ultimately overturned the lower courts’ rulings.This landmark decision established a broader interpretation of the duty to protect life, extending it to voluntary patients and emphasising the need for proactive measures to prevent suicide based on a comprehensive assessment of risk. The Supreme Court’s judgment in Rabone thus marked a significant step in clarifying the scope of Article 2 rights within mental health care, with lasting implications for patient safety and the responsibilities of mental health professionals.  

The judgement of the UKSC in Rabone significantly shaped the understanding of Article 2 rights within mental health care in the United Kingdom. It established a clear operational duty for mental health professionals to take reasonable steps to protect patients’ lives when a “real and immediate” risk of suicide is identified. Crucially, the ruling extended this duty beyond detained patients to encompass voluntary patients as well, recognising that the level of risk, not legal status, should dictate the standard of care.

This underscored the importance of comprehensive risk assessment, considering factors such as past suicidal behaviour, current mental state, and social circumstances, to determine the appropriate level of intervention. Essentially, Rabone emphasised a proactive, risk-focused approach to care, ensuring that all patients, regardless of their legal status within the mental health system, receive the necessary protection and support to safeguard their fundamental right to life. This has driven improvements in risk assessment protocols, care planning, and staff training within mental health services, promoting a more vigilant and responsive approach to suicide prevention.

Scope of Article 2

Operational duty

The concept of “operational duty” is central to understanding the legal obligations healthcare authorities have in protecting the lives of mental health patients. It emerged from the Osman v UK [1998] ECHR 29 case and was further developed in the context of mental health law through Savage and Rabone. Key issues from the cases:  

1. Source of the duty:

• Article 2 of the ECHR: The operational duty stems from the right to life protected by Article 2 of the European Convention on Human Rights. This right imposes both negative obligations (not to take life intentionally) and positive obligations (to take steps to protect life) on the State.  

2. Triggering the duty:

• “Real and immediate” risk: The operational duty is triggered when the authorities know or ought to know of a “real and immediate” risk to an individual’s life. This threshold requires a careful assessment of the likelihood and seriousness of the risk, considering factors such as:
  • Past suicidal behaviour: History of attempts, self-harm, or ideation.
  • Current mental state: Severity of illness, symptoms, and level of distress.
  • Social circumstances: Support network, stressors, and access to means.

• Individualised assessment: Rabone and subsequent cases stress the need for a case-by-case assessment of risk, considering the specific circumstances of each patient.

3. Scope of the duty:

• Initially detained patients: Savage established the duty for detained patients, recognising the State’s heightened responsibility for those under its control.  
• Extended to voluntary patients: Rabone extended the duty to voluntary patients, emphasising that the level of risk, not legal status, should determine the standard of care.  

4. Nature of the duty:

• Positive obligation: It requires authorities to take proactive steps to protect life, going beyond simply refraining from causing harm.  
• Reasonable steps: The standard is one of reasonableness. The measures taken must be proportionate to the level of risk and practically feasible within the available resources.
• Examples of measures: These may include increased observation, supervision, safety planning, involving family/carers, and ensuring access to appropriate treatment and support.

5. Limitations:

• Not an absolute duty: The operational duty is not absolute. It does not guarantee that every suicide will be prevented.
• Balancing with autonomy: The duty must be balanced with respect for patient autonomy and the right to make informed decisions about their care.

In essence, the operational duty requires mental health authorities to be proactive in identifying and mitigating risks to patients’ lives. It emphasises a risk-based approach to care, ensuring that all patients, regardless of their legal status, receive the necessary protection and support to safeguard their right to life. This duty aims to influence mental health practice, promoting more robust risk assessment, care planning, and staff training, with the aim of preventing suicide and promoting patient safety.  

Enter Morahan 2021

The case of Morahan [2021] EWHC 1603 (Admin) involved the following key events referenced by paragraph number in the judgement:

1. Tanya Morahan, aged 34, died from cocaine and morphine toxicity [2].
2. She had a history of mental illness, diagnosed with paranoid schizophrenia and harmful cocaine use [2].
3. From mid-May 2018, she was an in-patient at Colham Green Rehabilitation Unit (CGR), initially as a detained patient under s. 3 Mental Health Act 1983 [2].
4. On 25 June 2018, her s. 3 MHA detention was rescinded and she became a voluntary in-patient [2].
5. On 30 June 2018, she left the unit with clinicians’ agreement but failed to return as required that evening. She returned on 1 July 2018 [2].
6. On 3 July 2018, she again left the ward with clinicians’ agreement but failed to return [2].
7. The Trust asked the police to trace her. Police visited her flat on 4 July 2018, but there was no answer [2].
8. Tanya was found dead in her flat on 9 July 2018 [2].
9. The Coroner opened an inquest and conducted pre-inquest reviews, ruling that there was no Middleton investigative duty [3].
10. The Claimant (Tanya’s cousin) brought judicial review proceedings challenging the Coroner’s decision, arguing that the circumstances required a Middleton inquest [3].

This sequence of events led to the court’s examination of the various Article 2 obligations and duties in the context of Tanya’s death as a voluntary psychiatric patient.

The court explained the following duties:

1. Negative duty: To refrain from taking life without justification [30(1)]
2. Positive duties:
   • Framework duty:To put in place a legislative and administrative framework to protect the right to life [30(2)(a)]
     • Includes effective deterrence against threats to life, criminal law provisions, and law enforcement machinery [30(2)(a)]
     • In healthcare context, having effective administrative and regulatory systems [30(2)(a)]
   • Positive operational duty:
     • To take positive measures to protect an individual whose life is at risk in certain circumstances [30(2)(b)]
3. Investigative duties:
   • Substantive duty to investigate every death as an aspect of the framework duty [30(3)]
   • Procedural obligation (enhanced investigative duty):
     • Arises only in some cases [30(3)]
     • Is parasitic on the possibility of a breach by a state agent of one of the substantive operational or systems duties [30(3)]
     • Requires an effective public investigation by an independent official body [30(3)]

Enter Maguire 2023

The facts

The following facts are taken from para 63 to 101 in the judgement R (on the application of Maguire) (Appellant) v His Majesty’s Senior Coroner for Blackpool & Fylde and another (Respondents) [2023] UKSC 20.

Jackie Maguire was a 52-year-old woman with Down’s Syndrome, learning disabilities, and behavioural difficulties. She had lived in a care home managed by United Response since 1993. The care home provided round-the-clock supervision and assistance with personal care for adults with learning difficulties. Jackie’s placement was paid for and supervised by Blackpool City Council.

Due to her condition, Jackie was not permitted to leave the care home without supervision, and the doors were kept locked. She was subject to a standard authorisation for deprivation of liberty in her best interests under the Mental Capacity Act 2005.

Jackie had limited mobility due to spinal problems and used a wheelchair for trips outside. She took medication to manage back pain and prevent gastric ulceration. Jackie was fearful of medical interventions and had refused blood tests and scans in the past.

From February 16, 2017, Jackie began showing signs of illness. She complained of a sore throat, wasn’t eating well, and had diarrhea. On February 20, she vomited and had a raised temperature. The next day, she experienced breathing difficulties and had a possible collapsing episode.

On the evening of February 21, Jackie’s condition worsened. She vomited what looked like coffee grounds (a sign of potential internal bleeding), complained of severe stomach pain, and collapsed multiple times. An ambulance was called, but Jackie refused to go to the hospital. The paramedics, after consulting with an out-of-hours GP, decided not to force Jackie to go to the hospital against her will.

By the morning of February 22, Jackie was acutely unwell. She collapsed again and appeared to have a seizure. This time, she was taken to the hospital by ambulance, where she was treated for presumed sepsis. Tragically, Jackie died that evening following a cardiac arrest.

A post-mortem revealed that Jackie had died from a perforated stomach ulcer which had resulted in peritonitis, along with pneumonia. The ulcer had likely developed over several months.

Ascent to the UK Supreme Court

The judicial review proceedings began when Mrs Maguire, Jackie’s mother, issued a claim on 26 September 2018. She sought a declaration that the circumstances of Jackie’s death “engaged” Article 2 of the European Convention on Human Rights, contrary to the Coroner’s verdict decision on 29 June 2018. Mrs Maguire also sought a declaration that the Coroner erred in law by withholding the issue of neglect from the jury, and an order for a new inquest to be held.

The Divisional Court dismissed Mrs Maguire’s claim. Her counsel argued that Jackie’s death should not be treated as a healthcare-related death, but rather as the death of a vulnerable person in state care. They contended that Article 2 imposed a wider procedural obligation in such cases. However, the Divisional Court rejected these submissions, finding that the Coroner’s assessment was not irrational and involved no error of law.

Mrs Maguire then appealed to the Court of Appeal on three grounds. First, she argued that the Divisional Court erred in treating the case as a healthcare or medical negligence case. Second, she contended that there was a systemic failure in not having a mechanism to admit Jackie to hospital on the evening of 21 February 2017. Third, she claimed the court failed to consider the wider context of premature deaths among people with learning disabilities.

The Court of Appeal dismissed the appeal. They found that the Article 2 operational duty did not automatically apply to all aspects of Jackie’s care, and that her situation was not analogous to cases involving psychiatric patients at risk of suicide. They also rejected the argument that there were systemic failures or exceptional circumstances that would engage Article 2.

Following the Court of Appeal’s decision, the case was brought to the UK Supreme Court. The grounds for appeal to the Supreme Court centered on whether the Court of Appeal had erred in its interpretation and application of Article 2, particularly in relation to vulnerable individuals in state care.

What was decided

The case was ultimately decided in favour of dismissing the appeal. The key points regarding the decision are:

1. At the inquest, if there was an arguable case of a breach of a substantive positive obligation under Article 2 of the European Convention on Human Rights, and if the case fell within the enhanced procedural obligation rather than the redress procedural obligation, the Coroner would have been required to request the jury to return an expanded verdict in accordance with section 5(2) of the Coroners and Justice Act 2009.
2. On 29 June 2018, the Coroner gave his verdict decision that Article 2 did not require an expanded verdict. This verdict decision was the subject of the challenge in these proceedings.
3. The Supreme Court, after reviewing the facts and legal arguments, ultimately agreed with the Coroner’s decision. They found that there was no arguable breach of either the systems duty or the operational duty that would have triggered the enhanced procedural obligation under Article 2.
4. As a result, the Supreme Court dismissed the appeal, upholding the decisions of the lower courts and the Coroner’s original verdict decision.

This decision effectively meant that the inquest into Jackie Maguire’s death did not require an expanded verdict under Article 2, and the original inquest findings were allowed to stand.

The value of the Maguire

To a lay person, the extensive legal exploration might indeed seem excessive or unclear in its value. However, there are several important reasons why this in-depth legal analysis was necessary:

1. Clarification of legal principles: The case helped clarify how Article 2 of the European Convention on Human Rights applies to vulnerable adults in care settings. This has implications for many similar cases across the UK.
2. Balancing rights and responsibilities: It explored the balance between the state’s duty to protect life and the practical realities of providing care to vulnerable adults, including respecting their autonomy.
3. Precedent setting: The Supreme Court’s decision sets a precedent for how similar cases should be handled in the future, providing guidance to coroners, care homes, and healthcare providers.
4. Scope of inquests: It clarified when an expanded inquest verdict is required, which affects how deaths in care settings are investigated and reported.
5. Systems vs individual failures: The case helped distinguish between systemic failures (which might engage Article 2) and individual lapses or errors (which generally do not).
6. Public interest: While complex, the case addresses important issues about the care of vulnerable adults, which is a matter of significant public interest.
7. Accountability: It examined the extent to which the state and care providers can be held accountable for deaths in care settings.

While the legal intricacies might be hard to follow, the implications of this case are far-reaching for care practices, legal procedures, and the rights of vulnerable individuals in the UK. The detailed exploration was necessary to ensure all aspects were thoroughly considered given the gravity and complexity of the issues at stake.

Conclusion

A web of law has unfolded from several cases into Maguire.

1. Osman v United Kingdom (1998): This case established the “Osman test” for the operational duty under Article 2. It set out that authorities have a duty to take preventative measures to protect an individual if they knew or ought to have known of a real and immediate risk to life.
2. Savage v South Essex Partnership NHS Foundation Trust (2009): This case applied the Osman principles to the context of mental health patients, establishing that health authorities could owe an operational duty to protect mental health patients from the risk of suicide.
3. Rabone v Pennine Care NHS Trust (2012): This extended the operational duty to voluntary psychiatric patients, not just those detained under the Mental Health Act. It also clarified the nature of the “real and immediate” risk test.
4. Morahan v West London Assistant Coroner (2021): This case refined the application of Article 2 to healthcare settings, distinguishing between different levels of state responsibility and clarifying when the enhanced investigative duty applies.
5. Maguire (2023): This case brought together threads from all these previous cases, applying them to the context of a vulnerable adult in social care. It required the court to consider how the principles developed in mental health and healthcare contexts apply to social care settings.

Each of these cases built upon the ones before it, creating a complex web of interrelated principles. Maguire required the court to navigate this web, considering how principles developed in different contexts apply to a new situation. This illustrates how common law systems develop incrementally, with each case potentially adding new strands to the web or reinforcing existing ones.

The Maguire case and the evolving Article 2 jurisprudence have several significant implications for health and social care settings:

1. Duty of care: Care providers must be aware that their duty extends beyond basic care to potentially include protecting the right to life in certain circumstances.
2. Risk assessment: There’s an increased need for thorough and ongoing risk assessments for vulnerable individuals in care settings.
3. Decision-making processes: Care homes and healthcare providers need robust decision-making processes, especially for individuals lacking capacity, to ensure their rights are protected.
4. Training: Staff in care settings need to be well-trained in understanding and applying these legal principles in their daily work.
5. Documentation: There’s a greater emphasis on maintaining detailed records of care decisions, interventions, and rationales.
6. Balancing autonomy and protection: Care providers must navigate the delicate balance between respecting an individual’s autonomy and protecting their right to life.
7. Systemic safeguards: Organisations need to ensure they have appropriate systems and protocols in place to protect vulnerable individuals, not just relying on individual staff actions.
8. Accountability: There is potentially increased scrutiny on care providers’ actions (or inactions) when a death occurs.
9. Inquest procedures: The case clarifies when an expanded inquest might be necessary, which could affect how deaths in care settings are investigated.
10. Resource allocation: Care providers may need to consider allocating resources to ensure compliance with these evolving legal obligations.
11. Collaboration: There’s a need for better communication and collaboration between different care providers (e.g., care homes, GPs, hospitals) to ensure comprehensive care.

While these legal developments aim to protect vulnerable individuals, they also add complexity to the provision of care. Care providers must balance legal obligations with practical realities of care provision and resource constraints. This may lead to more cautious approaches in some areas, but ideally should result in more comprehensive and thoughtful care practices overall.