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Rabone v Pennine Care NHS Trust, Supreme Court, 8 February 2012

27 February 2012
The issues

Human rights – right to life – suicide – Article 2 European Convention on Human Rights (ECHR) – quantum – victim status – limitations

The facts

In April 2005 Melanie Rabone hanged herself from a tree in Lime Park, Cheshire at the age of 24. She was on home leave for two days from Stepping Hill Hospital, Stockport where she underwent treatment for a depressive disorder as an informal patient rather than one detained under the Mental Health Act 1983. She had been admitted as an emergency following a suicide attempt. She was assessed as a high risk of a further suicide attempt. Mr and Mrs Rabone, her parents, maintained that Melanie should not have been allowed home and that the hospital was responsible for their daughter’s death.

Proceedings were commenced against the Pennine Care NHS Trust alleging negligence and breach of right to life, protected by Article 2 of the European Court of Human Rights (ECHR). Negligence was admitted but liability was not admitted for breach by Article 2. The matter went to the Court of Appeal which rejected Mr and Mrs Rabone’s claim. The matter was appealed to the Supreme Court. A number of issues arose, namely:

1. Whether the obligation under Article 2 could be owed to a hospital patient who was not detained under the Mental Health Act

There was a difference between detained and voluntary psychiatric patients. However, the differences should not be exaggerated

The leading Strasbourg case in respect of cases involving hospital deaths was Powell v UK. In that case, the Strasbourg court said that whilst it could not exclude the possibility that acts and omissions of authorities in the field of health care policy might engage in responsibility under the positive obligation of Article 2, it could not accept that matters such as errors of judgment on the part of health professionals or negligent coordination amongst health professionals in the treatment of a particular patient would be sufficient of themselves to call a contracting state to account in respect of Article 2. To use the language adopted in Savage, “casual acts of negligence” by members of staff would not give rise to a breach of Article 2. The issue was whether the negligence of the Trust in its treatment of Melanie was to be considered in relation to the Powell line of cases or whether the fact that she was a psychiatric patient meant that the case should be bought into the class of cases where operational duties had been found to arise. The court had to find whether the existing cases gave some clue as to why the operational duty had been found to exist in some circumstances and not in others. The European Court of Human Rights (ECHR) had repeatedly emphasised the vulnerability of the victim as a relevant consideration. A further factor was the nature of risk i.e. whether it was an ordinary risk of the kind that individuals in the relevant category should reasonably be expected to take or whether it was an exceptional risk. These were relevant factors but they did not necessarily provide a sure guide. The ECHR was expanding its jurisprudence on a case by case basis.

There was a difference between detained and voluntary psychiatric patients. However, the differences should not be exaggerated. Many of them were more apparent than real. A detained patient might be in an open hospital with freedom to come and go. Equally an informal patient might be treated in a secure environment in circumstances where they might receive medication for their mental disorder which would compromise their ability to make an informed choice to remain in hospital and they would in any event be detained if they tried to leave. Informal in-patients could be detained temporarily under the holding powers given by s.5 of the Mental Health Act. The nature of the risk to voluntary psychiatric patients and those suffering from life threatening physical illnesses was very different. In the case of a suicide of a psychiatric patient, their capacity to make a rational decision to end her life would be to some degree impaired. On the other hand, the patient who underwent surgery would have accepted the risk of death on the basis of informed consent.

The ECHR had not considered whether an operational duty existed to protect against the risk of suicide by informal psychiatric patients but the jurisprudence showed that there was such a duty to protect persons from a real and immediate risk of suicide when they were under the control of the State. Which side of the line did Melanie fall? Lord Dyson was in no doubt that the Trust owed the operational duty to her to take reasonable steps to protect her from the real and immediate risk of suicide. She had been admitted to hospital because she was a real suicide risk. She was extremely vulnerable. The Trust assumed responsibility for her and she was under its control. Although she was not detained the authorities could and should have exercised their powers under the MHA to prevent her from leaving. Indeed the judge had found that if the Trust had refused to allow her to leave she would not have insisted in doing so.

2. Whether there was a real and immediate risk to the life of Melanie on the 19 April 2005 of which the Trust knew or ought to have known and which they failed to take reasonable steps to avoid
On the evidence, the risk was a substantial one and not a remote or fanciful one. The risk was 5% on the 19 April increasing to 10% on 20 April and 20% 21 April. The defendant had argued that there had to be likelihood or fairly high degree of risk. There was no support for this test in the Strasbourg jurisprudence. The correct way of considering the test was to look to the phrase “present and continuing” as capturing the essence of its meaning. The idea was to focus on a risk which was present at the time of the breach of duty and not a risk that would arise at some time in the future. The risk of suicide was immediate when Melanie was allowed home on 19 April. There was a real risk that she would take her life during the two day period on home leave. It existed when she left the hospital and it continued and increased during the two day period that was sufficient to make the risk present and continuing and therefore immediate.

3. Whether Mr and Mrs Rabone were victims within the meaning of the convention
The ECHR had repeatedly stated that family members of the deceased could bring claims in their own right both in relation to the investigative obligation and the substantive obligations.

The Strasbourg jurisprudence was clear. The observations of Lord Scott in Savage to the effect that a member of a deceased’s family could be regarded as a victim for the purpose of the investigative obligation but not for the purpose of the substantive obligation were not correct and had been made without the benefit of a consideration of the Strasbourg jurisprudence on the point.

4. Whether they lost their status as victim because the Trust made adequate redress and sufficiently acknowledged its breach of duty in relation to the negligence claim
It was not easy to extract from the Strasbourg jurisprudence a clear statement of the effect of a settlement of a domestic law claim on the ability of an individual to pursue a corresponding convention claim. It did not appear to adopt a strict approach to the interpretation of a settlement. It took a broad approach to determine the true meaning and effect of a settlement.

It was held in Caraher v UK; if relatives settled their domestic law claims arising from a death they would generally cease to be victims in relation to a corresponding convention claim. Thus if the domestic law claim that was settled was made by the same person as sought to make an Article 2 claim and the head of loss embraced by the settlement broadly covered the same ground as the loss which was the subject of the Article 2 claim, then Lord Dyson would expect the ECHR to say that by settling the former the claimant was taken to have renounced any claim to the latter.

By settling the negligence claim it could not be said that Mr had renounced his Article 2 claim on behalf of himself and Mrs Rabone. No such claim had been made in the negligence proceedings because no such claim was available in English law. In the absence of an expressed renunciation the settlement of itself had no legal effect on the status of Mr and Mrs Rabone as victims for the purposes of Article 2 claim.

The issue remained as to whether the sum settled on in respect of the negligence claim was nevertheless adequate redress. Mr and Mrs Rabone had received no compensation at all other than to Mr Rabone as personal representative on behalf of the estate. Although the sum awarded was reasonable it was by no means unduly generous. It could not be said that the settlement figure was adequate redress for the Article 2 claim of Mr and Mrs Rabone.

5. Whether their claims were timed barred
Under s.7(5) of the HRA proceedings had to commence within 1 year from the date on which the act complained of took place or such longer period that the court considered equitable. Proceedings were issued one year and almost four months after the expiry of the limitation period. Was it equitable to extend that time?

The court had a wide discretion and it would often be appropriate to take into account factors of the type listed in s.33(3) of the Limitation Act 1980. However, there could be no question of interpreting s.7(5)(b) as if it contained the language of s.33(3).It fell to the Supreme Court to consider the issue of discretion anew. The extension sought was less than four months. There was no suggestion that the evidence was less cogent. The complaint had been made by Mr and Mrs Rabone within five months of the death. They were told that their complaint would be put on hold pending an investigation and their evidence had been that they believed the Trust would produce a reasonably prompt report. Their waiting for the report was a material factor in the decision not to issue proceedings. The report was not in fact sent to them until the 16 March 2007. On behalf of the Trust it could be said that the claim could have been bought at the same time as the formal letter of complaint and that Mr and Mrs Rabone accepted that they were aware of the general times of the HRA and the possibility of bringing a legal claim. Even then they had not sought legal advice but only proceeded with the claim after discussion with a friend. It was further said for the Trust that they could not have been waiting for the final investigation report because in the event they issued proceedings before a copy was sent to them.

In Lord Dyson’s view Mr and Mrs Rabone acted reasonably in not issuing proceedings, and in initially waiting for the report as they were encouraged by the Trust to do. The extension was short and the Trust had suffered no prejudice by the delay. The extension would be granted.

6. What sum was appropriate in respect of damages to Mr and Mrs Rabone.
The Court of Appeal had said that the view taken by the judge that the appropriate award would have been £1,500 for each claimant was too low and had suggested that the appropriate award would have been £5000 each. There was no doubt that an award of £1,500 each would have been too low. In Savage, McKay J had considered a number of decisions of the ECHR in which competition had been awarded for non pecuniary loss to victims of a breach of the substantive Article 2 obligation. He had said that the range of awards was between 5,000-60,000 euros. There was no fixed conventional figure. One would expect the court to have regard to the closeness of the family link, the nature of the breach, and the seriousness of the non-pecuniary damage that the victim had suffered. Factors which tended to place the award towards the upper end of the range were the existence of a particularly close family tie and the fact that the breach was especially egregious; and the fact that the circumstances of the death and the authorities response were particular distressing to the victims.

In this case the family ties were very strong and Mr and Mrs Rabone had expressed their anxiety to the authority about the dangers of allowing Melanie to come home on leave and had urged them not to allow it. In addition, the fact that the very risk they feared had eventuated must have made the death all the more distressing. This was a bad case of breach and merited an award well above the lower end of the range of awards. There was real force in the argument that £5,000 was too low but there was no appeal against the decision of the Court of Appeal on this issue.

Appeal allowed.

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The content on this page is provided for the purposes of general interest and information. It contains only brief summaries of aspects of the subject matter and does not provide comprehensive statements of the law. It does not constitute legal advice and does not provide a substitute for it.

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