Mental health law briefing 174 – Rabone v Pennine Care NHS Foundation Trust
Extending the state’s positive duty to protect the lives of voluntary psychiatric patients
Background to the case
In 2000, Melanie Rabone was diagnosed with depression and given medical treatment. In 2005, she attempted suicide a number of times and in April 2005 she was admitted to hospital as an informal patient. She was assessed as a moderate to high suicide risk and a doctor noted that if she tried or demanded to leave she should be assessed for detention under the Mental Health Act (MHA).
On 19th April, Melanie’s mood had lifted and she requested home leave. Despite Melanie’s mother’s concerns about the leave, it was agreed that Melanie could go home for 2 days and 2 nights. On 20th April, Melanie committed suicide.
Melanie’s parents brought two claims against the Pennine Care NHS Foundation Trust as follows:
- A civil negligence claim
- A claim for damages for breach of Melanie’s right to life under Article 2 of the European Convention on Human Rights (ECHR)
- The negligence claim
The negligence claim was settled in 2008, as the Trust accepted that the decision to allow home leave was negligent. The claim was settled for £7,500 plus costs.
The ECHR claim
Article 2 of the ECHR places both positive and negative obligations on the state: a positive duty to protect life and a negative obligation to refrain from the unlawful taking of life. Melanie’s parents claimed that the Trust had breached its positive duty to protect Melanie’s life.
This claim came first before the High Court and then the Court of Appeal. Both Courts agreed that no operational duty existed on the part of the Trust to take “preventative operational measures” to protect Melanie’s life. In particular, the Court of Appeal held that NHS Trusts did not have operational obligations under Article 2 to voluntary patients who were suffering from physical or mental illness.
Melanie’s parents appealed to the Supreme Court.
The Supreme Court’s decision
A number of issues arose in the appeal as follows:
1. Whether the operational obligation under Article 2 of ECHR could in principle be owed to a hospital patient who is mentally ill, but who had not been detained under the MHA.
The Court held that an operational duty arose when there was a “real and immediate risk” to life. In determining whether the operational duty had been breached, the vulnerability of the victim was a relevant consideration. In circumstances of sufficient vulnerability, there might be a breach of the operational duty even when there had been no assumption of control by the state.
In this case, if there had been a real and immediate risk of suicide of which the Trust ought to have been aware, the Trust would have been under a duty to take reasonable steps to protect Melanie from it. She had been admitted to hospital because she was a real suicide risk. By reason of her mental state, she was extremely vulnerable. The Trust had assumed responsibility for her. She had been under its control. Although she had not been a detained patient, it was clear that, if she insisted on leaving, the authorities could and ought to have exercised their powers under the MHA to prevent her from doing so.
The Court was in no doubt that the operational duty to protect life existed in this case.
Court decision: The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA.
2. Whether there was a “real and immediate risk” to Melanie’s life on 19th April 2005.
There had been a real risk that Melanie would take her life in the two day period of home leave. That had been sufficient to make the risk present and continuing and therefore immediate. There was no doubt that the Trust had been or ought to have been aware of the risk. On the evidence, it was common ground that the decision to allow Melanie two days’ home leave had been one that no reasonable psychiatric practitioner would have made.
Court decision: There was a ‘real and immediate’ risk to the patient’s life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached.
3. Whether Melanie’s parents were victims under the HRA.
The European Courts had clearly established that family members of the deceased could bring claims in their own right under Article 2 of the ECHR.
Court decision: Melanie’s parents were ‘victims’ under the HRA and could bring a claim in their own right.
4. Whether Melanie’s parents lost their status as victims under the HRA by virtue of the settlement of the civil negligence claim.
The was a line of cases in which it had been held that, by accepting compensation in settlement of a domestic remedy for consequences of a death, an applicant had given up all claims for the consequences of the death, including breach of Article 2.
However, in the absence of express renunciation (as in this case), the settlement of itself had no legal effect on the status of Melanie’s parents as victims, especially as the settlement figure had not made adequate redress for the claim under Article 2.
Court decision: Melanie’s parents had not lost their victim status by settling a negligence claim.
Mr and Mrs Rabone were awarded £5000 each in recognition of the breach of the operational duty under Article 2.
The case of Savage v South Essex Partnership NHS Foundation Trust confirmed that hospitals owe a duty to patients detained under the MHA to prevent them from taking their own lives. The Supreme Court’s decision in Rabone has extended this principle, so that the law now applies whether or not a patient has been formally detained.
The judgment means that hospitals must ensure they take reasonable steps to safeguard the right to life of mental health patients in their care – regardless of whether they are detained or not – in circumstances where the authorities know or ought to know that there is a “real and immediate risk” to their life. As a result, decisions made by healthcare practitioners will be subject to greater scrutiny.
It is also possible that the case will have an effect on inquests, and that in the future families will argue that the enhanced procedural or “investigative” duty of the state should apply to inquests where a voluntary patient has died whilst in hospital.
This briefing is for guidance purposes only. RadcliffesLeBrasseur LLP accepts no responsibility or liability whatsoever for any action taken or not taken in relation to this note and recommends that appropriate legal advice be taken having regard to a client's own particular circumstances.