At the Kings Chambers Mental Health Conference on 21 September 2012 we discussed the question of risk in relation to the management of psychiatric patients.
Case law demonstrates that, at common law, liability may lie with healthcare providers who fail adequately to protect psychiatric patients against self-harm and suicide, but that it is evidentially difficult to establish negligence - see G-v-Central & North West London Mental Health NHS Trust  EWHC 3086 in which the court held that it had not been negligent to allow home leave to a patient who had previously placed herself on a tube train track and expressed ideas of killing herself. The patient put herself back on the track and was struck by a train. See also Rabone-v-Pennine Care NHS Trust  SC 2 in which negligence in allowing the patient home leave had been admitted by the Defendant Trust prior to trial. Ms Rabone committed suicide when on home leave.
In Rabone there was no allegation that the negligent omission was failing to detain Ms Rabone. However the common law would probably accept that a decision not to detain, although it involves the exercise of a discretion not to use a statutory power, might be negligent. Certainly, in S-v-South West London and St George's NHS Mental Health Trust  EWHC 1325 QB, in a claim that the defendant had negligently detained the claimant under the Mental Health Act, although the claim was dismissed, no point was taken that the decision to exercise a power of detention could not in law be regarded as negligent. And in Palmer-v-Tees HA et al  Lloyds Rep Med 351, where the allegation was that the defendants should have prevented a patient from being released from hospital when he was at risk of committing offences against children (he subsequently murdered a 4 year old girl) Stuart-Smith LJ observed that "there is no question in the present case of the defendants relying on the policy/discretion argument to say that they are not under a duty, breach of which is actionable."
So, failure to detain may, in certain circumstances, found an action in common law negligence, but it will most often be difficult to establish negligence on the facts
The duty of care, in common law, may extend to the protection of others from the risk that they will be harmed by a psychiatric patient. Palmer is clear authority, however, that the duty extends only to victims who "came into a special or exceptional or distinctive category of risk from the activities of [the patient]."
In the more recent case of Selwood the Court of Appeal found that the persons who might come within that distinctive category could include a social worker who was working in conjunction with NHS Trusts in relation to a particular patient (who later stabbed her). Interestingly, in that case the claim had been brought both in negligence and under the Human Rights Act. The Court of Appeal held that it was arguable that an NHS Trust was analogous to the police who may be under an operational duty to warn a person whom they know is at a real and immediate risk of being killed by a person with whom they have been involved. Compare Osman-v-UK and Van Colle-v-Ch Cons Herts Police  UKHL 50
The Osman duty arises, under the ECHR where the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk." That is close to the Palmer test for common law liability.
Given that the ECtHR has held that the scope of any positive duty on the state to protect life must not be intereted so as to impose a disproportionate burden on the authorities, and that it only arises once there is actual or constructive knowledge at the time of a real and immediate risk to life, it cannot reasonably be argued that the Human Rights Act has opened the floodgates to litigation in this area.
At the conference, Dr Jonathan Hellewell, Consultant Psychiatrist spoke about the conceptual and practical difficulties of assessing risk and managing risk . And Simon Burrows from Kings Chambers addressed the legal limits on the interference with liberty, which may well prevent public authorities from taking certain measures to protect against the risk of self harm or harm to others. The risk of suicide, let alone homicide, by psychiatric patients is very very small. Measures to reduce the risks might well by themselves lead to unacceptable results. Some risks are acceptable or "positive" and may attend management decisions which are generally beneficial to the patient. No court would expect public authorities to detain all patients who present with some risk of self harm or suicide. It is only when the authorities know (or ought to know) of a real and immediate (present and continuing) risk to life, that article 2 imposes an obligation to act (not necessarily to detain, but to take precautionary steps which can be expected to be effective and which do not impose a disproportionate burden on the state).
Thanks to Dr Hellewell and Simon and all those who attended the conference.