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Cite as: [2010] ECHR 165
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12 January 2010
FOURTH SECTION
Application no.
2694/08
by Patricia REYNOLDS
against the United Kingdom
lodged
on 7 January 2008
STATEMENT OF FACTS
THE FACTS
The applicant, Patricia Reynolds, was a British national who was born in 1935 and lived in Hebden Bridge. The applicant died in December 2008 and Ms Catherine King (the applicant’s daughter and a sister of the deceased) continues the case on behalf of the applicant. The applicant is represented before the Court by Atherton Godfrey, a firm of solicitors practising in Doncaster.
The applicant’s son, David Reynolds (who was born in 1969), died on 16 March 2005 and this application relates to his death.
A. The circumstances of the case
The facts of the case, as submitted by the applicant, may be summarised as follows.
1. Mr Reynolds’ illness and death
Mr Reynolds was first diagnosed with schizophrenia in 1998 and was known to the mental health services.
On 16 March 2005 he visited his general practitioner to request some night sedation and was prescribed medication. The applicant spoke to her son that day and was concerned that he was quieter than usual, prompting her to inform Mr Stephens (Mr Reynolds’s social worker) about her concerns.
Later that day Mr Reynolds contacted the applicant and his social worker. He was hearing voices, commanding him to kill himself. He told the applicant that he “might well hang himself”. Both the applicant and the social worker went to Mr Reynolds’s home. Following an assessment, Mr Stephens contacted the Crisis Resolution Home Treatment Team (“CRHT”, a community based psychiatric team) and informed them that Mr Reynolds needed to be hospitalised. He was told that no beds were available but that Mr Reynolds could have a crisis bed at the ‘Intensive Support Moving On Scheme’, a supported mental health unit (“the ISMOS Unit”).
The social worker then took Mr Reynolds to the ISMOS Unit. On the way to the unit Mr Reynolds told Mr Stephens that he found the ‘voices’ distressing to the point where he felt like killing himself. Once at the ISMOS Unit the care worker decided that Mr Reynolds required a medical assessment and his medication reviewed so he took Mr Reynolds to the Calderdale Royal Hospital (“the Hospital”) which was run by South West Yorkshire NHS Trust (“the Trust”) where a clinical assessment was carried out by an Associate Specialist in psychiatry attached to the CRHT (“the Psychiatrist”). The Psychiatrist recorded that Mr Reynolds reported transient thoughts of self-harm in response to command hallucinations: while they had dissipated, he was terrified of them returning. A computer-based risk assessment found Mr Reynolds to be a low suicide risk and at no risk of deliberate self-harm. While there was, in fact, a bed available at the Hospital (although it is alleged that the social worker did not know this), it was agreed that Mr Reynolds needed a safe environment with 24 hour access to staff who could support him if required (an ISMOS Unit) and his medication was increased.
Mr Reynolds was admitted on the same day to the ISMOS Unit as a voluntary in-patient. The service did not offer management or supervision of those identified as being at risk of harming themselves and did not accept residents who had been assessed as being at risk. The ISMOS Unit is housed in a tower block and Mr Reynolds was allocated a room on the sixth floor. During dinner it was noted that Mr Reynolds seemed withdrawn and preoccupied. Later that evening Mr Reynolds left the Unit looking perplexed and he was found wandering at the entrance to the building. He was cooperative and returned to his room.
At around 22.30 on the same day (16 March 2005) Mr Reynolds broke a window in his room and fell from the sixth floor to his death: a resident had reported hearing breaking glass.
The applicant obtained evidence from a Consultant Psychiatrist (“Expert”). He opined that the care which Mr Reynolds had received fell below the standard which he had a right to expect and the Expert concluded that:
“..the ISMOS Unit was not a secure enough environment in which to manage a patient suffering an acute relapse of their paranoid schizophrenia and particularly someone suffering from command hallucinations. The identified suicide risk was plainly wrong and I think that Mr Reynolds was offered an unacceptable level of care on the basis that he was not offered an inpatient bed in an environment with an appropriate level of security and a proper multidisciplinary team... the use of the ISMOS Unit in this way was clearly inappropriate. Management of such a disturbed patient at the ISMOS Unit would not be an adequate alternative to proper inpatient care. It was clearly documented that Mr Reynolds had experienced a recent increase in auditory hallucinations and tactile hallucinations and the clear history of command hallucinations telling him to kill himself should have alerted staff to increased suicide risk. In my opinion his admission to the ISMOS unit did not place him in an appropriately safe environment, and the lack of 24 hour nursing and medical care in this kind of unit was inappropriate.”
2. The internal investigation
On 26 May 2005 an internal investigation into Mr Reynolds’ death was completed by the South West Yorkshire NHS (responsible for the Trust). The resulting Serious Untoward Incident Investigation Report (“the Report”) identified the following terms of reference:
“- Examine all the circumstances surrounding the care and treatment of the patient.
- Examine the care and treatment of the patient with relation to compliance of National and Local polices.
- Identify any issues that impacted on the care and quality of services provided to the patient.
- To prepare for the investigation and make any recommendations.
- To identify any lessons learned and agree an action plan.”
The Report included recommendations that an operational procedure and policy be developed to ensure that there were agreed criteria for the use of the crisis beds at ISMOS; that all care coordinators had an up-to-date care and contingency plan for all patients within their care; and that the crisis bedroom windows at the ISMOS would be replaced with double glazing units incorporating 6mm laminated glass on the internal side, all other windows to be fitted with safety film (this work on the windows was completed by July 2005). One of the lessons learned was that there had to be greater clarity about how the crisis beds at ISMOS were used, although this was not felt to be a factor in the relevant incident. The team were stressed by Mr Reynolds’ death and were mindful that patients did not always share the entirety of what was troubling them.
On 20 May 2005 the applicant’s daughter wrote a letter of complaint to the Trust on behalf of the Reynolds’ family. The Trust responded on 20 June 2005. In relation to the clinical assessment, the Trust stated that:
“At the time of the assessment there was no indication that [Mr Reynolds] would cause harm to himself or that the outcome would have been so tragic. Staff have re-looked at all this information again since [Mr Reynolds’] death. Although shocked by his death they have not been able to identify any information indicating that he was likely to be suicidal or that would have changed their assessment or decision at the time.”
3. The Inquest
On 22 March 2005 an Inquest was opened and adjourned by the Coroner. It resumed on 21 July 2005. The applicant was not represented. The Inquisition Form (the verdict) recorded, as regards the “Time, place and circumstances at or in which the injury was sustained”, that Mr Reynolds had been placed in the crisis room for a few days for monitoring; that just a few hours later he broke a window in the flat, climbed through it and walked off the window sill; and that Mr Reynolds sustained fatal injuries as a result of the fall and was pronounced dead that day. The conclusion of the Coroner as to death was an “Open verdict”.
On 21 July 2005 the Coroner wrote to the Trust referring to the applicant, his history of schizophrenia, his placement at the ISMOS Unit and he continued:
“As you know, the ISMOS Unit, or more correctly the room that he had been allocated, is situated on the sixth floor of this tower block. Tragically, he smashed the window and fell to his death. I recorded an Open Verdict and the medical cause of death was attributed to multiple injuries. As self harm and suicide may be associated with some psychiatric disorder, I was concerned about the appropriateness of siting a psychiatric facility on the sixth floor of a tower block. Accordingly, I am writing to you formally under Rule 43 of the Coroners Rules 1984 which allows the Coroner to report such matters in writing to a person or authority who may have the power to take such action that could result in the prevention of similar fatalities”.
The applicant has not submitted any response to the Coroner’s letter.
4. The applicant’s claim for compensation
The applicant obtained public finding from the Legal Services Commission to pursue an action for damages under the Human Rights Act 1998 (HRA”) against the Trust (as regards the Hospital) and Calderdale Metropolitan District Council (as regards the ISMOS). On 4 April 2006 she sent a Letter of Claim to the defendants: she maintained that, as public authorities for the purposes of the HRA, the defendants had failed to adequately discharge their duties towards Mr Reynolds in breach of Articles 2, 3 and 8 of the Convention. Damages were claimed under section 7 of the HRA. On 10 July 2006 she served her Particulars of Claim.
In the meantime, the High Court decided the case of Savage ν South Essex Partnership NHS Foundation Trust ([2006] EWHC 3562): it accepted the Trust’s argument that the extent of the obligations on health authorities to protect a patient’s life was to be found in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 V) and rejected the claimant’s reliance on Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 VIII). Ms Savage’s action was struck out.
Both defendants in the applicant’s case served defences in March 2007: they relied on the above-noted High Court judgment in the Savage case to argue that a claimant had to establish “gross negligence of a kind sufficient to sustain a charge of manslaughter” in order to establish a breach of Article 2 of the Convention and applied for the applicant’s claim to be struck out. The applicant applied for her proceedings to be stayed pending the appeal to the Court of Appeal in the Savage case. On 13 July 2007 the County Court struck out the applicant’s claim (costs were awarded against her) since the prospect of a successful appeal in the Savage case did not raise:
“a sufficient prospect of an outcome favourable to the Claimant so as to justify refusing the Defendants ... the orders they seek and to which they are entitled as the law stands.”
On 17 July 2007 Counsel for the applicant advised her that there was no realistic prospect of success upon appeal from that County Court decision. On 13 August 2007 the Legal Services Commission withdrew public funding.
The High Court judgment in the Savage case (on which the County Court judgment in the applicant’s case was based) was later overturned: the Court of Appeal allowed Ms Savage’s appeal ([2007] EWCA Civ 1375) and the House of Lords rejected the Trust’s appeal ([2008] UKHL 74).
B. Relevant domestic law and practice
The Court refers to its outline of “relevant domestic law and practice” in the Hirst application (no. 42577/07) and would add the following.
1. Statutory damages
Claims arising from the death of an individual caused by negligence are brought under the Fatal Accidents Act 1976 or the Law Reform (Miscellaneous Provisions) Act 1934. The former Act enables those who were financially dependent on the deceased to recover damages for the loss of support: the scheme is compensatory and, save for the sum of currently 10,000 pounds sterling (for deaths occurring on or after 1April 2002) for bereavement awarded to the spouse of a deceased or parent of a deceased child under 18 at the time of death, damages are awarded to reflect the loss of support. The latter Act enables damages to be recovered on behalf of the deceased’s estate and may include any right of action vested in the deceased at the time of his death together with funeral expenses.
2. The Savage case
In the case of Savage ν South Essex Partnership NHS Foundation Trust the deceased (involuntary detained psychiatric patient) left an open acute psychiatric ward and committed suicide. The respondent Trust had applied to the High Court for a question of law to be determined as a preliminary issue: what was the proper test for establishing a breach of Article 2 of the Convention? The Trust contended that the extent of the obligations of health authorities to protect a patient’s life in that case was to be found in Powell v. the United Kingdom ((dec.), no. 45305/99, ECHR 2000 V) and the claimant argued, citing Osman v. the United Kingdom (28 October 1998, Reports of Judgments and Decisions 1998 VIII), that a duty to take steps to prevent a particular patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so. The High Court accepted the argument of the Trust and struck out the action ([2006] EWHC 3562). On 21 December 2007 the Court of Appeal allowed Ms Savage’s appeal ([2007] EWCA Civ 1375).
The Trust appealed to the House of Lords and, by judgment dated 10 December 2008 ([2008] UKHL 74), the House of Lords rejected the appeal. Lord Rodger of Earlsferry gave the main judgment of the House of Lords, with which Lord Scott of Foscote, Lord Walker of Gestingthorpe, Baroness Hale of Richmond and Lord Neuberger agreed. Lord Rodger noted that the fundamental error in the approach of the Trust was to conceive of the Powell decision and the Osman judgment as laying down two mutually exclusive approaches, only the first of which could apply to the acts and omissions of medical staff. On the contrary, the case-law of the Court did not contain a hint of such an approach: the principles represented by those Convention cases related to different aspects of the Article 2 obligations of health authorities and their staff to protect life. The Court’s Article 2 case-law did not provide any basis whatever for the proposition that, as a matter of principle, medical staff in a mental hospital could never be subject to an “operational” duty under Article 2 to take steps to prevent a (detained) patient from committing suicide - even if they knew or ought to have known that there was a real and immediate risk of her doing so. He considered that Article 2 imposed on hospital authorities and their staff an obligation to adopt a framework of general measures to protect detained patients from the risk of suicide and the usual complementary operational obligation to try to prevent a particular suicide in the appropriate circumstances. These obligations were not alternative but complementary. Having reviewed this Court’s case-law under Article 2 in some detail, Lord Rodger summarised the relevant obligations of health authorities such as the Trust:
“In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.
In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient’s right to life under article 2.
Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient’s life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell.
The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell.
Finally, article 2 imposes a further “operational” obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities’ more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a “real and immediate” risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient’s life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.”
COMPLAINTS
The applicant complains under Article 2 alone and in conjunction with Article 13 of the Convention about the lack of an effective civil remedy for the negligent care of her son so as to cause her to be deprived of the opportunity of an adequate investigation into the circumstances of her son’s death and into the potential responsibility of the State’s agents for that death and of an award of damages for negligent care provided to her son.
QUESTIONS TO THE PARTIES
1. The applicant is requested to submit any questionnaire submitted to and completed by the Inquest Jury and any transcript of the Coroner’s summing up to the Jury. The applicant is requested to explain why she was not represented at the Inquest and to indicate whether another member of her family was present and represented.
2. Would the provisions of Article 35 § 1 of the Convention have required the applicant to have applied to re-open her civil proceedings (struck out by the County Court on 20 July 2007) following the judgment of the Court of Appeal or of the House of Lords in the Savage case (Savage v South Essex Partnership NHS Foundation Trust [2007] EWCA Civ 1375 and [2008] UKHL 74)?
In particular, was the applicant afforded a remedy in the civil courts enabling any liability for Mr Reynolds’ death of the persons and/or bodies concerned to be established and any appropriate civil redress (including an award for damages) to be obtained ?