The right to life in a suicidal state

Abstract

This paper considers when the State must take positive steps to protect the right to life of a suicidal patient. Using recent developments across the Council of Europe which challenge the traditional 'ugly Samaritan' approach of many common law systems, it contends that whenever and wherever public authorities know or ought to know of a real and immediate risk to the life of an identifiable person, they must take reasonable precautions to minimise it. Even J. S. Mill's approach to liberty, it is suggested, would tolerate this limited degree of State interference. However, notions of autonomy and dignity, the unpredictability of human behaviour, and the need to avoid unduly burdening the State must influence what it means to act reasonably.

Management of patients with an advance decision and suicidal behaviour: a systematic review

“…Management of the advance decision was difficult both emotionally and ethically for some clinicians because it challenged their professional training and their desire to protect vulnerable patients from suicide. The competing pressures of respecting a patient’s right to autonomy while protecting them from the effects of mental disorder found in the current study is a commonly reported dilemma 41. There is evidence from the present study that support for the right to autonomy may be more dominant in clinicians from emergency medicine disciplines, with those from a psychiatric background prioritising prevention of suicide.…”

“…A ‘middle ground’ between these views may help to provide guidance for clinicians. For example, in English law, courts have acknowledged that while some suicidal individuals may have capacity, the overwhelming likelihood is that capacity is impaired to at least some degree 41. Suicidal ideation has been associated with disordered and impulsive decision-making33 34 and evidence indicates that most mental health patients presenting to EDs are judged as not having capacity to make a treatment decision 12.…”

“…Therefore a higher degree of certainty should be required when assessing capacity with suicidal behaviour and clinicians should err on the side of caution 8. Another potential resolution to this dilemma, particularly in emergency scenarios, may be to provide ‘temporary intervention’ to allow time for individuals to be assessed and treatment options to be discussed 41…”

Risk and responding to self injury: is harm minimisation a step too far?

“…Although the risks may be obvious with hindsight, the very "obvious" nature of such risks is an illusion. For example, based on the use a routine risk assessment, 60 per cent of suicides are assessed as low risk and only 3 per cent of those categorised as high risk actually commit suicide (Allen, 2013). Furthermore, even when assessment makes use of formal measures designed to assess suicide risk the situation does not improve.…”

Decision-Making Behaviour under the Mental Health Act 1983 and Its Impact on Mental Health Tribunals: An English Perspective

“…Two further cases involving the assessment of suicide risk have also had an impact upon risk and its management regarding clinical decision-making. Kingdom (1998) 29 EHRR 245) to protect life could be owed to informal psychiatric patients as well as formally detained patients under the MHA 1983 (Allen 2013) as long as there has been 'an assumption of responsibility by the State for the individual's welfare and safety (including by the exercise of control)' (Rabone v. Pennine Care NHS Foundation Trust, p. 22). The European Court also agreed that the duty could be owed to an informal patient (Reynolds v. United Kingdom (2012) 55 EHRR 35).…”