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In the footsteps of Savage - Rabone v Pennine Care NHS Foundation Trust
29 July 2009
Following the decision in Savage last year, there has
been much debate surrounding the duties placed on healthcare
providers under the Human Rights Act in respect of patients who may
pose a risk of suicide. The recent decision in Rabone v Pennine
Care NHS Foundation Trust has considered when such duties
arise.
Background
The claimants' daughter, Melanie, committed suicide the day
after being allowed home on leave from the defendant’s psychiatric
hospital. She had been admitted to hospital as a voluntary patient,
suffering severe depression and following suicide attempts.
A claim brought on behalf of her estate had been compromised but
the Court considered the Human Rights Act 1998 (HRA) claim, in
particular whether the Trust had been in breach of its obligations
under article 2 of the European Convention of Human Rights.
The issues
One of the key issues considered in Rabone was whether
the Trust had been in breach of its 'operational obligation' under
article 2 and if not, whether she should nevertheless be regarded
as being detained.
In addressing this issue, the Judge carefully considered the
case of Savage v South Essex Partnership NHS Foundation
Trust, in which the House of Lords held that this operational
obligation arises where a particular patient presents a 'real and
immediate' risk of suicide.
The claimants submitted that the reasoning in Savage
did not depend upon formal detention under the Mental Health Act
1983, and in any event, as the State had assumed responsibility for
Melanie's care, she was 'effectively detained'.
In rejecting these arguments, the Judge considered that in
Savage, the House of Lords were drawing a distinction
between those who were detained and those who were not.
Significantly, he also noted that all hospitals assume
responsibility for their patients, but this does not mean that the
operational obligation arose in relation to all patients. The
crucial factor, insofar as the operational duty is concerned, is
the exercise of coercive powers over an individual who, as a
result, is particularly vulnerable. The Judge added that the cases
of R (Takoushis) v Inner North London Coroner and
Secretary of State for Defence v Smith emphasised the
importance of the distinction between those who are detained and
those who are not. He clearly stated that the operational
obligation is confined to the former.
Whilst the issue of whether or not Melanie was at real and
immediate risk of suicide was academic in light of the Judge's
finding that the operational duty did not arise, he found that in
any event, she was not. He described the risk in Melanie's case as
'significant' and whilst it was real, it was not immediate.
The claimants also submitted that there was a systemic breach of
article 2, an argument which the Judge rejected. There were systems
for assessing and recording risks and the issue in Melanie's case
was one of implementing that system and exercising clinical
judgment in doing so.
A novel argument of 'serious negligence', in the sense of a
collective failure to provide protection for Melanie, was also
raised by the claimants. The Judge considered this to be unfounded.
There are no authorities upon which to base such a test and in any
event, as a point of principle, it would be inconsistent with case
law that had developed, not least that of Savage.
Whilst the Judge was critical of the length of time it took the
Trust to complete its Serious Untoward Incident (SUI) investigation
(18 months), he rejected the argument that the State had not
complied with its obligation under article 2 to investigate a death
which may have been caused by a breach of that article. He was
satisfied that the SUI investigation and Inquest met this duty.
Interestingly, he also concluded that the SUI report was not
susceptible to challenge under article 2.
The claimants' status as victims, as defined by section 7(1)
HRA, was also considered by the Court. Following Powell v
United Kingdom and Hay v United Kingdom, in view of
the fact that the claimants had settled the claim in negligence
(and so had another remedy available to them), they did not fall
into the category of 'victims'. The Judge drew no conclusions on
what would the status of the claimants have been, had there been no
other remedy available, leaving open the possibility of future
cases being brought on this issue. It is worth remembering,
however, that in Savage, the House of Lords questioned the
entitlement of the daughter of the deceased to bring a claim as a
victim.
The Judge also considered HRA limitation in light of the fact
that the Claim Form was issued 16 months after the date of
Melanie's death. The HRA allows only a period of one year in which
to commence an action. The Judge refused to exercise his discretion
to extend time and in doing so, took into account the contents of
the SUI report, the admission of negligence by the Trust and its
letter of apology to the family.
So what does it all mean?
This is a significant case as it clearly limits the operational
obligation as applying only to those individuals who are detained
and not to patients and hospitals generally. It will also perhaps
reassure Trusts that for claimants to demonstrate that the
operational duty arises is more difficult than establishing
'simple' negligence – a point the House of Lords had made in
Savage.
Also, the Judge's finding on whether Melanie was at a 'real and
immediate' risk of suicide demonstrates that the test described in
Savage is indeed difficult for claimants to satisfy. What
seems clear, however, is that this test will depend upon the facts
of each case.
It is also worth bearing in mind that alternative forms of
redress the claimant has received will be taken into account, both
in terms of the legitimacy of the claim under the HRA and in
relation to limitation issues.
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Simon Tait
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