ABSTRACT
This chapter tackles the contemporary question of the State’s responsibility in respect of suicide through the particular lens of tort law, by asking when, if ever, it owes a duty of care to citizens to exercise its statutory powers to protect them against suicide risk.
The growth in State responsibility in this field is the product, the chapter argues, of increased (yet still imperfect) understanding of the relationship between mental illness and suicide, of greater social tolerance for the act in modern conditions, and of the rise of the protective philosophy of the modern welfare state. At the same time, the answers provided by tort law in respect of the liability question reflect continuing uncertainty and disagreement about the proper balance between state paternalism and personal responsibility (on the one hand), and between suicide, mental illness and decisional autonomy on the other.
The chapter examines the complex history of social attitudes toward suicide; identifies the clear cases in which the State has positive obligations of intervention in the UK and Australia; and finishes with an examines the most difficult type of case, typified by the tragic facts of Stuart v Kirkland-Veenstra [2009] HCA 15, in which state agents fail to make use of powers to take particular persons into protective custody in circumstances where the latter’s self-harm is a clearly foreseeable, individual risk. The chapter critiques the reasoning of the High Court in Stuart and offers a different approach to the the duty of care question which recognises state responsibility through positive duties of intervention in a greater range of circumstances, but which simultaneously takes account of the extreme difficulty of many modern judgment-calls through an appropriately moderated approach the question of breach.
Barker, Kit, Suicide, Madness and the State: The Tale from Tort (February 1, 2024), Chapter 8 in K Falconer, K Barker and A Fell (eds), Life and Death in Private Law (Hart, 2024) 149-174.
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