Independent inquiry into the care and treatment of Peter Bryan and ...

caused or contributed to the violence and other unacceptable behaviour. Proper
treatment and care are not provided if one such patient is not adequately protected from
another. Society rightly makes rules which separate such patients involuntarily from the
public, and detain them in a secure environment; this is not only to keep the public safe
but also to keep the patient safe. Any system which fails to maintain an appropriate safe
environment for patients is failing in a fundamental duty.
2.50 It is clearly established that the State has a duty under Article 2 of the European
Convention on Human Rights to take steps to protect the life of hospital patients
generally. Thus in one recent case the European Court on Human Rights (ECHR) said:
“The aforementioned positive obligations therefore require States to make
regulations compelling hospitals, whether public or private, to adopt appropriate
measures for the protection of their patients' lives. They also require an effective
independent judicial system to be set up so that the cause of death of patients in
the care of the medical profession, whether in the public or the private sector,
can be determined and those responsible made accountable.”
2.51 All detained patients have the same human right to respect for their lives, to
protection from inhuman and degrading treatment and to respect for their private lives,
including their physical integrity under Articles 2, 3 and 8 of the European Convention on
Human Rights as any other member of the public. Where a person is detained by the State,
the State owes a duty both not only to abstain from active infringement of such rights but
also to take positive steps to protect such individuals‟ rights. The only right removed by
lawful and justifiable detention in a mental hospital is that of liberty: a detainee retains
all other human rights so that any restriction or exception to them must be justified on
the facts of the individual case. In a case concerning prisoners, but, in our view, equally
applicable in principle to detained mental patients, the Grand Chamber of the ECHR said:
“The Court, as the Chamber, reiterates that there is no place under the
Convention system, where tolerance and broadmindedness are the acknowledged
hallmarks of democratic society, for automatic forfeiture of rights by prisoners
based purely on what might offend public opinion.”
2.52 The duty of the State clearly extends to taking appropriate steps to protect the
lives of vulnerable patients in its care. Thus the ECHR said in a recent case:
Chapter two: Introduction
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