Court of Appeal rules on mental health institutions’ obligations to voluntary patients

(1) Richard Rabone (In his own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased) (2) Gillian Rabone(In her own Right) Appellants v Pennine Care NHS Trust 21 June 2010 [2010] EWCA Civ 698 – read judgment

Court of Appeal rules that health trusts did not have operational obligations under Article 2 of the Human Rights Convention to take all steps to prevent the suicide of voluntary patients.

The appellants, parents of the deceased (Melanie) and  administrator of their daughter’s estate, appealed against a decision ([ 2009) EWHC 1827 (QB),(2010) PIQR P2) that the respondent NHS trust had not breached Article 2 of the European Convention on Human Rights 1950. Melanie had suffered from a recurrent depressive disorder and at the age of  24, she agreed to be informally admitted to the Trust’s hospital. Despite the fact that it had been noted by employees of the trust that she had thought of suicide and self-harm, she was later granted two days’ home leave. During that leave, Melanie committed suicide.  

In the court below the judge found that because Melanie was a voluntary mental patient, not detained under the Mental Health Act, the NHS Trust did not have an operational obligation to her under that Article; even if it did have such an obligation, it was not found to be in breach of it.

Invoking Article 2 of the Convention, the appellants contended that the trust’s conduct had caused their daughter’s death and the trust had failed to conduct or permit an effective investigation into her death and that they were victims of those breaches and were entitled to recover damages under Section 7 of the Human Rights Act 1998. The claim under the Law Reform Act was settled in May 2008. The defendant agreed to pay £7,500 plus costs in satisfaction of the claim brought on behalf of Melanie’s estate.

Before the court were the following issues: (a) whether the trust had an operational obligation to the deceased under Article 2; (b) whether, if the operational obligation existed, it had been breached; (c) whether the claimants were victims for the purposes of the 1998 Act. The trust submitted that for the suicide risk to be real it had to be a likelihood.

No duty towards voluntary patients

Appeal dismissed. The Court accepted the Trust’s psychiatrist evidence that, although suicide was a risk on home leave, he did not consider that this was likely to occur within two or three days of leaving the hospital. As for Article 2, the Court referred extensively to the Strasbourg case of Osman v United Kingdom , which set out the positive obligations, implied by Article 2, on the state to protect life.  The provision

did not impose upon the state an operational obligation towards all persons who were at real and immediate risk of death. In addition to that risk there had to be some additional element before state authorities came under the operational obligation.

Health trusts did not have an Article 2 obligation to voluntary patients in hospital who were suffering from physical or mental illness, even where there was a real and immediate risk of death.

Voluntary patients did not fall into different categories, some of whom, or some of whose families, could claim under article 2 but others of whom could not. The remedy for clinical negligence was an action in negligence.

Like all claims under Article 2, there is always the vexed question of standing. Relatives can seek to claim that the investigational obligation implied into that provision has been breached, but they do not always qualify as “victims” under Article 35 of the Convention.  This issue arose in  Savage v South Essex Partnership NHS Foundation Trust (2010) EWHC 865 (QB). In that case the claimant was the non-dependent daughter of the deceased.  She was in the end granted “victim” status under Article 35 to pursue her claim under Article 2.  But that case establishes no particular criteria for locus standi.  In any event the Court of Appeal was not bound by the Savage ruling because where, as in this case,  an applicant brought a claim in his domestic courts in respect of matters which formed the basis of the Convention claim and succeeded, that success might deprive him of the status of victim under art.34 of the Convention. To ascertain whether the settlement or award of the domestic court had that consequence, it was necessary to consider all the circumstances of the domestic litigation and to determine whether it afforded effective redress for the Convention breach. It was necessary to consider whether liability for the offending conduct had been accepted by the state authority or found proven by the court and also the adequacy of any compensation awarded by the domestic court. If the compensation awarded fell substantially short of the pecuniary losses suffered, that was a factor pointing against treating the domestic award as effective redress. In this case the parents had obtained effective redress, in so far as the law could afford redress for a loss which lay beyond the reach of financial compensation. They were therefore not entitled to pursue a claim under s.7 of the 1998 Act.

The Distinction between Detained and Voluntary Patients and consequent Obligations

In this important decision, the Court of Appeal appears to be rowing back somewhat from the extension made to the state’s obligations under Article 2 in Savage – litigation we posted on earlier. The point needs to be made that in Savage the deceased had been a detained patient (although initially she had entered the hospital voluntarily). Although it is not clear from Lord Rodger’s  speech in that case, Jackson LJ, giving the judgment of the Court of Appeal in the instant decision, considered that an important distinction, in the context of the obligations owed to patients under Article 2. In other words, the difference in treatment of voluntary as opposed to detained patients remained an unanswered question in Savage, but here it did arise and the Court set itself to answer it. The conclusion that they reached was that actual detention under the Mental Health Act made “a critical difference.” It is clear that ECHR article 2 does not impose upon the state an operational obligation towards all persons who are at “real and immediate risk” of death

Limitations on State Obligations under Article 2

An “operational obligation” in the context of the state’s duties under the Convention refers to the positive obligation which arises out of such cases as Osman v UK. Although it was notable that even in Osman, the high water mark for this positive duty, the Strasbourg Court stressed that

not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising.

The price for indiscriminate imposition of this operational obligation on the authorities in all cases of foreseeable death would be too high to pay – individual freedoms would be curtailed to the point of undermining the very freedoms the Convention is meant to protect. An example raised by Lord Rodger in Savage was the obligations of state officials towards those with suicidal intent from travelling to Switzerland: of course they cannnot forcibly prevented them from doing this.

The Strasbourg Court acknowledged these limitations in a number of cases, most recently in Renolde v France (2009) 48 EHRR 42 a prisoner with mental health problems committed suicide during pre-trial detention.  In relation to the operational obligation, the court stated at paragraph 82:

However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources.

People held in prisons are one thing. Voluntary patients in hospitals are another. As this case notes, the Strasbourg court has held that the positive obligation does not generally arise in the hospital context. In Powell v UK (2000) 30 EHRR CD 362 the applicants’ ten-year-old son died from Addison’s disease, after being discharged from hospital. The applicants’ claim for breach of article 2 was rejected. In relation to the operational obligation, the court stated:

where a Contracting State had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a Contracting State to account from the standpoint of its positive obligations under Article 2 of the Convention to protect life.”

Further, an operational obligation arises only where the authority knows, or ought to know, of a “real and immediate risk” to the life of the particular individual: see the House of Lords decision in Mitchell v Glasgow City Council [2009] UKHL 11.

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