healthcare update - issue 15
Rabone v Pennine Care NHS Trust
The Court of Appeal rejected the claimant’s appeal that the
Pennine Care NHS Trust had an operational obligation under article
2 (the “right to life”) of the European Convention of Human
Rights.
The facts – what had gone before?
Melanie Rabone suffered from depression and made two suicide
attempts in March 2005. She agreed to an informal admission to
hospital but during a period of home leave granted on 19 April
2005, she killed herself.
The parents issued proceedings, alleging that the Trust were
negligent in agreeing to Melanie’s request for home leave on 19
April 2005. A claim was also brought under the Human Rights Act.
They claimed the Trust’s conduct had caused Melanie’s death and
also that the Trust had failed to conduct an effective
investigation into her death.
The claim in negligence, brought on behalf of Melanie’s estate,
was settled. The claims under the HRA remained in dispute.
At first instance, the Judge held that as Melanie was not
detained under the Mental Health Act 1983, the Trust did not have
an “operational obligation” to her under ECHR article 2 and even if
they did, it had not been breached. He also held that the Trust had
not breached the investigatory obligation and that the claimants
were not “victims” for the purposes of the HRA.
Was there an operational obligation in this case? Was it
breached?
Under article 2 ECHR, there are well defined circumstances where
there is a positive obligation on authorities to take steps to
protect the life of an individual where there is a real and
immediate risk to that person’s life.
In Savage v South Essex Partnership NHS Trust, in
finding that this operational obligation arose, the House of Lords
attached significance to the fact that Mrs Savage was a detained
patient.
In Rabone, the Court of Appeal concluded that detention
under the MHA made a “critical difference”. In addition to a real
and immediate risk of death, there must be some additional element
before the operational obligation arises, such as the fact the
individual is detained by the state.
Notwithstanding this finding, the Court of Appeal still
considered whether the Trust had breached the operational
obligation. The Court considered that the risk of suicide in
Melanie’s case was, in every sense, “real”.
The immediacy of the risk was affected by context. After Melanie
was granted home leave, the expert psychiatrist instructed by the
Trust for the claim assessed her risk of suicide at 5% on 19th
April, 10% on 20th April and 20% on 21st April. This, according to
the Court of Appeal, was an “immediate” risk as well, one which
could have been prevented easily by refusing the request for home
leave.
The investigatory obligation
This was an appeal ground which had been refused and thus
reconsidered by the Court of Appeal. It refused on the basis that
there had been an Inquest, a SUI investigation report (which was
critical of the care provided) and the civil litigation.
The focus of the claimants’ submissions related to perceived
inadequacies of the SUI investigation. The Court of Appeal did not
consider this provided reasonable grounds for a finding that the
Trust were in breach of its investigatory obligation, in particular
as the obligation rested on other agencies of the State.
Who is a victim?
Under s. 7 HRA, only a victim can bring proceedings under that
Act. The HRA defines “victim” in the context of article 34
ECHR.
In the recent trial in Savage (following the House of Lords’
decision on the HRA issue), the court held that Mrs Savage’s
daughter was a victim. The Court of Appeal agreed – Melanie’s
parents could be treated as victims for the purpose of the article
2 claim.
However, because the claimants had already obtained effective
redress, which included an admission of liability and adequate
compensation, they were not victims for the purposes of article
34.
Where does this leave us?
The Court of Appeal’s decision provides a degree of certainty
insofar as the operational obligation is applicable to mental
health law. It will arise where there is a real and immediate risk
of harm to those who are detained under the MHA, but it will not
apply if the same risk arises in voluntary patients. This
distinction may appear unusual at first blush, given, as in
Melanie’s case, there is often provision in the care plan for a
voluntary patient to be detained if they indicate they want to
leave hospital.
However, as the Court of Appeal pointed out in Rabone, the
purpose of the ECHR is to ensure certain minimum human rights
standards are maintained. The state’s operational obligation is
only engaged therefore when it exercises its function by lawfully
detaining someone, thus increasing its level of responsibility to
that individual.
Whether the real and immediate risk is present will largely be
down to the individual circumstances of each case. In Melanie’s
case, the Court of Appeal took relatively little time in finding
that she was, in fact, at a real and immediate risk of suicide.
The status of victim is one which may lead to claims from a
wider variety of individuals – in Savage and now
Rabone, the court has held that persons against whom the
State has not directly offended can bring proceedings under the
HRA. However, if it is that effective redress has been obtained,
that victim status will fall away.
For NHS Trusts, it will be reassuring that the Court of Appeal
gave short shrift to the suggestion that the SUI investigation was
inadequate insofar as the investigatory obligation is concerned.
Indeed, one could argue that this obligation is one which the other
agents of the State must fulfil, rather than individual NHS
Trusts.
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