Analysis | Rabone and the rights to life of voluntary mental health patients – Part 1/2
12 February 2012
Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2 – Read judgment (On appeal from [2010] EWCA Civ 698 and [2009] EWHC 1827 )
At first sight, Article 2 – the ‘right to life’ – seems to be a prohibition on extra-judicial executions and state-sponsored death squads. It does, of course have a role to play in that respect (and one that is not limited to those countries whose signature of the Convention is viewed with scepticism from Western Europe).
But through a combination of logic, inventive legal argument and what can either be characterised as the incremental development of a new area of law, or the expansionist tendencies of Strasbourg judges, the scope of Article 2 has broadened significantly, and can be cited in cases concerning prison administration and coronial procedural law.
In Rabone, the Supreme Court extended the obligations that the Article places on the state and its servants still further, beyond even the existing decisions from Strasbourg. They held that – in the specific circumstances of this tragic case – an NHS Trust had violated the positive duty that it had, under Article 2, to protect a voluntary patient from the risk of suicide.
It is an important decision for a number of reasons. In another blog I will discuss the effect of the judgment on the test to be applied to establish a breach of Article 2, the notion of who is a “victim” and thus entitled to bring an action under the Human Rights Act 1998 (“HRA”), when a settlement in a civil claim prohibits an HRA claim, and the topical issue of the relationship between the domestic and Strasbourg Courts.
Here, in part 1 of this post, I concentrate on the central feature of the case, the scope of Article 2 and in particular the Court’s rejection of an approach that sought to draw thick dividing lines between classes of people that can seek legal redress through Convention rights, and those that cannot. This, it is argued, represents a welcome re-assertion of the fundamental importance of the notion that the Convention gives rights to individuals, and imposes obligations on state agencies to meet them.
The Facts
In April 2005, 24 year-old Melanie Rabone was admitted to the Defendant’s hospital as an emergency following a suicide attempt. She was assessed as being at a high risk of a further suicide attempt but, importantly for the case, she was not detained under the Mental Health Act 1983 (“MHA”). She remained a voluntary or “informal” patient and when she requested a brief period of home leave during her ongoing treatment, her doctor agreed. The following day, and while still on leave, she killed herself.
Because Melanie was over 18 and had no dependents of her own, there were limited legal options open to her family in seeking to pursue legal action against the hospital. An internal investigation was instigated, but Melanie’s parents did not receive its report until March 2007. An inquest was held and a verdict of suicide recorded, but a coroner is prohibited from expressing his findings in terms of civil (or criminal) liability.
Her parents pursued a negligence action, but the domestic law does not provide a remedy for parents of grown-up children. Instead, the only damages paid by the Defendant – when it admitted negligence, some four years after Melanie’s death – was a sum of £7,500 under the Law Reform (Miscellaneous Provision) Act 1934. This was paid to Melanie’s estate for funeral expenses and pain and suffering in the moments before death. Her relatives received nothing in their own right, as in the law as it stood they had no loss.
Hence Melanie’s parents pursued an action under the HRA, claiming a breach of Article 2. They were unsuccessful at first instance and in the Court of Appeal, but took their appeal to the Supreme Court. As Lady Hale said in her judgment [92]: “We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child.”
The operational duty under Article 2
It is settled case law form both Strasbourg and domestic jurisprudence that Article 2 places four distinct, but related, obligations on a state:
- A duty not to take life save in the exceptional circumstances set out in Article 2(2) (thus no death squads or arbitrary executions)
- A duty to conduct a proper and open investigation into deaths for which the state might be responsible (for example into a fatal shooting incident involving the police)
- A duty to protect life by putting in place a legal and administrative system that provides effective deterrence against threats to life (a wide-ranging duty, that goes from investigating and prosecuting murderers to training and regulating doctors)
- An “operational duty” in certain circumstances to take positive steps to prevent the death of an individual who is under threat.
Rabone concerned the extent of the last of these.
The case that it widely seen as the foundation of the ‘operational duty’ is Osman v United Kingdom (2000) 29 EHRR 245, in which a family complained that the police had not done enough to protect them from threats and harassment that had culminated in murder.
The Court held that a state’s authorities could have a duty to take reasonable steps to avert the risk to life of a named individual in circumstances where they knew (or ought to have known) of a “real and immediate” threat to that individual. Osman held that the police could have such a duty (see also Mammadov v Azerbaijan (Application No. 4762/05) (2009) ).
Subsequent case law has found that the duty might (depending on the facts of specific cases) apply to the following situations: prison authorities protecting inmates from harm from other prisoners [Edwards v UK (2002) 36 EHRR 487], or from suicide [Keenan v UK (2001) 33 EHRR 913]; immigrants in administrative detention [Slimani v France (2006) 43 EHRR 49]; military conscripts [Lilinc V Turkey (App. No. 40145/98)]; residents of a slum that was engulfed by a methane explosion from a neighbouring tip [Oneryildiz v Turkey (2004) 41 EHRR 20l]; and a local authority moving an elderly resident between care homes [Watts v United Kingdom (2010) 51 EHRR 66]. Authorities in respect of the similar operational duty under Article 3 have held that the obligation can apply to children who are known to be at risk of abuse [Z v UK (Application No. 29392/95) (10 May 2001)].
The question of when the operational duty applies in a health context is difficult one. It is settled case law that ‘casual’ or ‘mere’ clinical negligence does not amount to a breach of the operational duty: a doctor treating a patient does not (in the absence of systemic abuse or gross negligence) owe an ‘operational duty’ under Article 2, and any remedy against his or her negligence is to be found purely in the law of tort [see Powell v UK (2000) 30 EHRR CD 362].
However, in the leading case of Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681l , the House of Lords held that a hospital did have an operational duty to take reasonable steps to protect a mental health patient from suicide where that patient was detained under the MHA. The question in Rabone was whether Melanie’s case was one that fell into the Powell category, where no breach of Article 2 could be found, or into the line of cases running from Savage to Osman where there was an operational duty.
The decision in Rabone
In the Court of Appeal, Jackson LJ (giving the only substantive judgment) found that the fact that Melanie was not detained made a critical difference. The basis of his decision (see paragraphs 63-64) was that hospitals owed the same legal duties to all voluntary patients; after all, a patient undergoing heart surgery was also at a “real and immediate” risk of death, yet if it eventuated the only remedy would lie in clinical negligence, not through a claim by reference to Article 2. Hence a firm line could be marked. Those patients who were detained engaged the operational duty, those who were not did not. There was a principle behind this distinction – that the state, by detaining somebody under its own laws had taken on a special responsibility that brought with it additional obligations. There was also the benefit of legal certainty.
The problem with this distinction was that what seems principled and clear in theory is often not so in practice. Individual cases, such as Melanie’s, demonstrate how arbitrary a judge-drawn line can become. It was not disputed that Melanie needed protection from suicide; nor that she could have been detained under the MHA; nor that it was negligent to allow her to leave the hospital. Did it, then, really make all the difference that she was not (partly through the hospital’s own negligence) formally detained?
It could be said to matter as she remained free to make her own decision to consent to and withdraw from treatment. However, as Lord Dyson and Lady Hale argued in their judgments [26, 30, 105] to what extent can a mental health patient who is being treated because of a risk of suicide be said to make a rational decision akin to that of an informed and capable patient refusing, say, chemotherapy?
Ultimately, the Supreme Court held that in Melanie’s case the operational duty did apply – she was closer to Savage than Powell. In his leading judgment (to which this summary can do no justice), Lord Dyson held that the following factors had informed his decision: she was a real suicide risk; she was extremely vulnerable; the trust had assumed responsibility for her; she was under its control and if she had insisted on leaving without the consent of her doctors she could and should have been detained under the MHA.
There are other cases in which non-detained patients could also be owed an operational duty under Article 2 – for example MHA patients on home leave, patients subject to deprivation of liberty safeguards, or patients whose confusion (as a result of age, mental health, or addiction withdrawal) is such that their best interests require that they are not able to leave a ward without supervision. Some of these categories were raised as problem areas in Savage (see paragraph 101-102).
It is important to note that Lady Hale – who sat in both Savage and Rabone – agreed with Lord Dyson’s reasoning and emphasised that their Lordships in Savage were not “carving out an exception to the general rule that the State is not responsible for the deaths of hospital patients”. Instead they – and the Supreme Court – were seeking to deduce the principles applicable to the operational duty and apply them to the case in front of them [94].
A welcome restatement
That is a welcome and important restatement of a simple but vital point. The protections of the Convention are owed to each man and woman within its jurisdiction. They belong to him or her as of right, and not because he or she falls into a legally definable class.
While it is helpful to identify core principles and categorise situations in which they would and would not apply, legal certainty should not come at the expense of the very individual rights that the court is seeking to define. It is the human element underlying the Convention that gives it its purpose, as is reflected in the simple factual statement with which Lord Dyson began his judgment:
Some time after 17.00 hrs on 20 April 2005, Melanie Rabone hanged herself from a tree in Lyme Park, Cheshire. She was 24 years of age and was the loved daughter of Mr and Mrs Rabone.
Part 2 of 2 is coming soon
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Thank you for your comments.
M Cook
I can’t comment on an individual case and would recommend that those concerned should seek formal legal advice before taking any futher steps. What I would say, though, is that the Supreme Court decision in Rabone – in contrast to that of the Court of Appeal – emphasises that Courts considering Article 2 claims should look at the circumstances of individual cases and not just apply premeditated distinctions (i.e. formally detained persons are owed an operaitonal duty; non-detained persons are not). I think that this could apply beyond the mental health sphere.
John D & Cidermaker
I think that the courts are – in general – very aware of the incredibly difficult position that doctors find themselves in when faced with the possibility of detention under the MHA (including temporary detention). However, In Melanie’s case, it was agreed that: (i) had her doctor refused her request to go home, she would not have left the hospital (and hence would not actually have needed to be detained); (ii) that no reasonable psychiatrist would have agreed to her home leave. Lady Hale also commented that ‘no proper assessment of the risks’ involved of home leave was cnoducted [para. 107]. Of course no-one intended that these mistakes would be made, but the law (of both negligence and under the European Convention) provides redress if they are.
I do not think that floodgates or cans of worms will be opened by this case (see the second post on this case, which will be up shortly). The hospital owed Melanie a duty of care under tort law already and the Supreme Court have not added, retrospectively, to their obligations to her by this judgment. What they have done is to allow a different group of people – relatives who are not financially dependent on a deceased adult – to bring claims arising out of the death. It alters the position for lawyers, but not for doctors. I do not think in those circumstances that it will lead to the more ‘defensive’ (or intrusive) practices. However, I can understand why medical professionals are sensitive to what may appear to be judicial hindsight or interference in this very difficult area. The question of how the state intervenes in those at risk of self-harm, and how it frames laws to reguate this intevention, is an exceptinally difficult one. I hope (and think) that this judgment has assisted in developing and clarifying the law in this area.
I fear the Supreme Court my have opened a ‘can of worms’ which could lead to unnecessary restrictions being placed upon informal patients & an increase in MHA detention. It has long been recognised that patients should remain under the least restriction consistent with safety and to do this there needs to be a continuous process of risk assessment (RA). It is also recognised by the professions & by the Courts that RA is not a precise predictive tool. Good practice demands that calculated risks be taken at times &, of course, sometimes these go wrong. In order to eliminate as much risk as possible informal patients would have to endure unacceptable restriction. You cannot have it both ways. You either recognise that risk assessment is not a precise tool & that we sometimes get it wrong or informal patients are unnecessarily restricted. It is sad that Ms Rabone died but would sectioning her have been justified as she left hospital with permission & after, I presume, an up-to-date RA had been made
There is a counterpart to this case which was previously found in places like the former Soviet Union and other former Eastern European regimes. It is possible that an apparent risk of suicide or other forms of potential self-harm could be used improperly to detain people under the Mental Health Act (MHA).
How awful to be perfectly sane, yet be detained and lose your freedom under the provisions of the MHA? I think this may explain why the hospital trust involved was understandably reluctant to impose detention under the MHA.
As always, these cases inevitably lead on to further ones which are necessary to refine the law in our country. It is not easy adjudicating on human rights.
..still happens to ‘bed blocking’ elderly and ‘useless feeders’ all over the NHS, despite the Phillip Glass case – seems they know ‘low quantum deaths’ are unlikely to be pursued by the police or coroners.
What of a case in which an elderly patient wanted treatment, but was told by a physician treating him that he thought it in his ‘best interests’ to have all his treatments witheld – patient was had been seeking a transfer all week to a designated hospital for his condition, but was unable to make a telephone call without assistance from staff. Was given sedatives and lapsed into coma from which he never recovered – daughter who had been trying to help get a transfer all week was not informed, and totally ignored thereafter. No right to life issues according to coroner -he was not a ‘mental patient’ – however, doctor had implicitly asserted he was ‘incompetent’ by acting against his wishes and deciding it was in his ‘best interests’ to die. Very busy surgical ward.