Reynolds v United Kingdom  ECHR 437 – read judgment
What – if anything – can a claimant do when she suspects that the domestic law is not only out of kilter with Strasbourg jurisprudence but is also denying her even an opportunity to bring a claim? Taking arms against a whole legal system may be an heroic ideal, but the mundane reality is a strike out under CPR rule 3.4 by a district judge in the County Court. It is a long way from there to the European Court of Human Rights.
This was the position in which Patricia Reynolds and her daughter Catherine King found themselves following the sad death of (respectively) their son and brother. David Reynolds suffered from schizophrenia. On 16 March 2005 he contacted his NHS Care Co-ordinator and told him that he was hearing voices telling him to kill himself. There were no beds available in the local psychiatric unit, so Mr Reynolds was placed in a Council run intensive support unit. His room was on the sixth floor and at about 10.30 that night Mr Reynolds broke his (non-reinforced) window and fell to his death.
There followed an inquest, which recorded an open verdict (not suicide), and an internal investigation completed by the NHS. However Mrs Reynolds was unable to bring a civil claim for compensation for two reasons. First, as the mother of the deceased and someone who was not financially dependent upon him, she had suffered no loss for which legal recompense was then available. Second, Mr Reynolds had been a voluntary resident at the support unit. At that time the domestic case law – and in particular the High Court decision in Savage v South Essex Partnership NHS Foundation Trust  EWHC 356 and the Court of Appeal in R (Takoushis) v Inner North London Coroner and Another  EWCA Civ 1440 – stated that the death by his own hand or actions of a person who was not formally detained by the state could not (other than in particular circumstances not applicable in Mr Reynolds case) amount to a breach of Article 2 ECHR (the right to life).
These arguments will be familiar to anyone who has considered the recent Supreme Court case of Rabone v Penine Care NHS Trust  UKSC 2, the latest – and most definitive – in a line of cases in which the scope of the Article 2 operational duty on the state to prevent the loss of life has been considered and incrementally extended. As discussed in two previous posts (here and here), the Supreme Court held in that decision that no absolute line should be drawn between the self-inflicted deaths of voluntary and non-voluntary mental health patients when considering a state’s obligations under Article 2. Significantly, the Justices also found that the parents of an adult child who killed herself could bring a civil action under the Human Rights Act 1998 (“the HRA”) even though they were not financially dependent on the deceased, ending the cold principle that such parents suffered no legal loss.
Rabone means that in the future those in the unfortunate position of Mrs Reynolds should (if the relevant Article 2 test is met) have a claim in the civil law against the negligent public body. However, this decision was four and a half years late for Mrs Reynolds. She had issued an action for damages under the HRA, which was struck out in the County Court on the basis that the domestic law as it then stood meant that there were no reasonable grounds for bringing the claim. Mrs Reynolds obtained further legal advice that an appeal had no realistic prospect of success. At that point, her legal aid funding was withdrawn.
For most claimants, that would be the end of the road. However, Mrs Reynolds took the case to the European Court of Human Rights arguing that she had been denied proper redress, contrary to Article 13 ECHR, as there had been no mechanism by which she could obtain a civil remedy (i.e. compensation) for an arguable breach of Article 2 arising from her son’s death. Sadly, Mrs Reynolds died before the conclusion of the case, but her daughter, Ms King, continued to pursue it on her behalf. And she did so successfully, despite three very significant hurdles.
The Court’s judgment
First was the issue of whether the claim in Strasbourg was even admissible, given that Mrs Reynolds had not pursued an appeal against the County Court judgment, let alone subsequent proceedings in the Court of Appeal and House of Lords (as then was). The Strasbourg Court held that in the circumstances of this case – where Mrs Reynolds had been advised by two barristers that there was no prospect of success, where her legal aid funding had been withdrawn, and where she had insufficient funds to meet the likely legal costs – she was not required to continue a hopeless (and expensive) chain of litigation.
Second, the Court held that Mr Reynolds’ death did give rise to an arguable claim that there had been a breach of Article 2. It held that the circumstances in which Mr Reynolds found himself – notwithstanding the fact that he was a voluntary resident and not a detained patient – could engage the operational duty on the state to take reasonable steps to protect him from a real and immediate risk of suicide. The Strasbourg Court is here agreeing with the decision in Rabone, and in doing so is following the UK court in extending the scope of the operational duty (for the first time in its own jurisprudence) to voluntary mental health patients.
Third, it found that Mrs Reynolds had the right to pursue a civil action for compensation for the arguable breach of Article 2, and that the domestic law (as it then was) did not allow her to do so. The inquest and the internal investigation were not enough as they did not allow for any finding of civil liability (or subsequent payment of compensation). The Fatal Accidents Act 1976 and the Law Reform (Miscellaneous Provisions) Act 1934 offered no remedy to Mrs Reynolds in her own right (and in reality offered no prospect of compensation beyond funeral expenses). And, as Mrs Reynolds found in the County Court, an action under the HRA 1998 was, at that time, doomed to failure by strike out.
The Court therefore concluded that Article 13 (in conjunction with Article 2) had been breached. It awarded Ms King (on her mother’s behalf) €7,000, noting that while the inquest had “elucidated the central facts of the present case”, the lack of a civil remedy had nonetheless “caused her some frustration and distress” (a masterpiece of understatement).
At first sight, this case may seem to be of only historic interest – Rabone should mean that no-one is in Mrs Reynolds’ position again. However, in clearing the three hurdles identified above, Mrs Reynolds and Ms King have also established or reinforced some interesting precedents: that a claimant can – in certain circumstances – jump straight from the County Court to Strasbourg without the need for litigation in the appellate domestic courts; that the operational duty under Article 2 is at least as broad as the Supreme Court said that it was in Rabone (a significant endorsement for that important decision); and that inquests, internal investigations and illusory or elliptical civil proceedings may not meet the requirements imposed on a legal system by an arguable breach of Article 2. Not bad for claimants who were initially told by the Court that they couldn’t even make it past CPR r. 3.4.
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- Analysis| Rabone and the rights to life of voluntary mental health patients – Part 2/2
- Analysis | Rabone and the rights to life of voluntary mental health patients – Part 1/2
- Court of Appeal rules on mental health institutions’ obligations to voluntary patients
- Hospital had human rights duty to protect voluntary patient from suicide, rules Supreme Court
- A welcome clarification for relatives of the dead