In this article...

The House of Lords decision of Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74 on 10 December 2008 left ambiguity regarding the application of Article 2 (ECHR) in relation to non-detained patients.

The Savage case concerns a compulsorily detained patient with a long history of mental illness who was cared for on an open acute psychiatric ward and had periods of leave outside the hospital.   It was confirmed that where a patient is detained under the Mental Health Act and there is a “real and immediate risk of suicide” the positive obligations of Article 2(1) include a requirement to take operational steps to prevent that harm. As such, a right to bring a claim under the Human Rights Act 1998 (‘HRA’) will arise.  Further details are included in our December 2008 edition.

Rabone v Pennine Care NHS Trust [2009] EWHC 1827 (QB) has now clarified the position and in an encouraging decision for Defendants, found that that the operational duty under Article 2(1) does not apply to non-detained patients.  Additionally, the judgment helpfully considers issues relating to limitation, damages and a Claimant’s victim status under the Human Rights Act 1998.   The Defendant Trust succeeded on all issues in this case.

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Factual Background

Melanie Rabone (‘the deceased’) committed suicide on 20 April 2005 aged 24.  She suffered from symptoms of a depressive illness and had made several suicide attempts. She was admitted to hospital as an informal patient on 11 April 2005 following a suicide attempt.  The deceased remained in hospital as an informal patient and overnight leave was granted on 19 April 2005.  On 20 April 2005, she told her mother that she was going to visit a friend but took her life by hanging that afternoon.

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Procedural history

The deceased’s father, Mr Rabone sent a letter of complaint on 31 August 2005.  He was informed that a thorough investigation would be undertaken by the Trust and a Serious Untoward Incident (SUI) Panel was established. The SUI report, dated 16 March 2007, made a number of criticisms about the deceased’s care. It concluded that overnight leave on 19 April 2005 was premature.   At an Inquest on 29 September 2005 the Coroner returned a verdict of suicide.

The Claimants, the deceased’s mother and father, served proceedings on 25 September 2007.  A negligence claim was pursued by Mr Rabone, as personal representative of the deceased’s estate, and this part of the action was settled on 19 May 2008 in the sum of £7,500.  However, a consent order was agreed which specifically stated that the Claimants would continue their claim under the HRA.  

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The Claimant’s HRA Case

  • The Trust was in breach of its obligation to take preventative operational measures to protect the deceased’s life under Article 2, either on the basis that she was a voluntary patient with suicidal inclinations or on the basis that she was a patient who should be regarded as a detained patient
  • There was a “systemic” breach of Article 2 in the assessment of the risk of suicide
  • There was a failure to properly investigate the deceased's death under the investigatory obligations of Article 2.

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The Defendant’s HRA Case

  • Denial of all of the Claimant’s allegations and the factual assertions on which they were based
  • The claims must fail because the Claimants were not “victims” within the meaning of the HRA
  • The Claimants had brought their claim out of time in relation to the operational and systemic claims.

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The Issues

The parties’ agreed in a written document that 9 issues arose. Here we will look at the key issues considered by Mr Justice Simon’s judgment.

Did the Trust have an operational obligation under Article 2 in light of the fact that the deceased was a voluntary patient who was not detained under the Mental Health Act 1983? If not, should the deceased nevertheless be regarded as being detained at the time of the decision to grant leave on 19 April 2005?

Mr Justice Simon said no.  The operational obligations under Article 2(1) are confined to detained patients and exclude informal patients.  An important factor in determining whether the operational duty arises is the use of coercive powers over an individual who, by reason of the exercise of those powers, is particularly vulnerable.  The deceased had not been detained under the Mental Health Act and she was not subject to “complete and effective control over [her] care and movements” (HL v United Kingdom (2005) 40 EHRR 761). Mr Justice Simon referred to the speech by Baroness Hale in Savage

“…involuntary patients are deprived of their liberty and other Convention rights, and cannot choose their own treatment.  In contrast…voluntary mental health patients can leave when they want, are not deprived of any Convention rights and have input in their own medical treatment.”

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If the answer to the first question is yes, was the test of “a real and immediate risk to life” satisfied?

In real terms this issue did not arise but Mr Justice Simon addressed the issue in any event.  The parties’ experts agreed that there was a real risk of suicide on 19 April 2005; the only issue was whether there was an immediate risk.  The risk had to be measured against what steps it was reasonable to have taken to avoid the risk, balanced against the deceased’s right to autonomy.  Simon J said there was no immediate risk and he would therefore not have found there had been a breach of Article 2.  He highlighted that it is vital to avoid the use of hindsight.   The test is what authorities knew or ought to have known at the time.

Against the deceased’s history of recent and regular attempts at suicide this indication from the High Court reinforces the position that the threshold to succeed in an Article 2 claim is high and difficult to surmount.  Ordinary negligence will not suffice.

Was there a “systemic” breach of Article 2 by the Defendant?

Mr Justice Simon said no. He accepted the Defendant’s submission that the duty was owed by the state to adopt proper systems in relation to mental patients who were not detained and that the  Defendant had an appropriate system in place to protect patients.  There was a suitable Care Plan Assessment Policy and the failure of an individual to complete documentation could not be a systemic failure to amount to a breach of Article 2. 

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Was there an actionable breach of an investigatory obligation under Article 2 by the Trust?

Mr Justice Simon said no.  The investigation was satisfied by (1) the Inquest at which a verdict of suicide had been given, and (2) civil legal proceedings by which the circumstances of the deceased’s death could be investigated.  Neither the SUI report nor the process by which its conclusions were reached could be challenged under Article 2.  Arguably SUI reports cannot be considered to fulfil the Article 2 investigative obligation because by their nature they are not independent.  The judgment criticises the length of time (18 months) that it took to complete the SUI report and emphasised the importance of gathering evidence as close in time to the incident as possible, something which should be borne in mind by Trusts.

Are the Claimants victims for the purpose of s7 (7) HRA 1998?

Mr Justice Simon found that the Claimants were not victims for the purposes of the HRA because there was another remedy available to them under the Law Reform (Miscellaneous Provisions) Act 1934 and it was not appropriate for them to be considered direct victims.  The Court will not be quick to assume that a Claimant should be regarded as a victim for the purposes of Article 2.  However, the key message is that each case will be decided on its own facts and the Court has the broadest discretion.  The more serious the breach the more likely it will be that the Court will exercise its discretion and allow a claim to proceed.  The Courts do not appear keen to allow those who do not fall within the class of persons entitled to a bereavement award to circumvent domestic legislation and obtain compensation through the back door, as seen in the House of Lords decisions in Savage and Van Colle.  

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Is it equitable to extend time for bringing the claim under s7 (5) HRA 1998 in relation to the operational and systemic claims?

Mr Justice Simon said no.  The claim was issued outside of the one year limitation period for HRA claims.  The Claimants were loosely aware of the possibility of bringing an action under the HRA during the extended complaints process.  Notwithstanding his judgment that the Article 2 claim had failed, the Trust had already issued an apology and the claim under the Law Reform (Miscellaneous Provisions) Act 1934 had been settled.  These were substantial matters to weigh in the balance when considering his discretion to extend time. 

The judgment is helpful and indicates that Claimants will have a higher threshold to meet when attempting to proceed with a HRA claim out of time than in negligence claims, where the Court will in effect look at the question of prejudice to the Defendant, and the claim will often proceed if there is none.  While each case will be considered on its merits, those who engage solicitors at an early stage and have gone through the complaints process in some form may be less hasty to proceed with a claim if limitation has expired.     

If an actionable breach was established, should the Claimants be awarded damages or some other remedy?

Mr Justice Simon held that if a breach had been established, he would have awarded the sum of £1,500 to each Claimant.  He did not consider the bereavement award under the Fatal Accidents Act 1976 (currently £11,800) to be an appropriate indicator of quantum but considered that the sum should reflect the breach of ECHR right.  This is encouraging and appears to reiterate the core principles of the ECHR that the purpose of any claim is to award the Claimant ‘just satisfaction’.  The purpose of finding a violation is not to lay claim to a right to compensation but to make public and binding a finding of human rights standards.

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This is a positive judgment for all those dealing with HRA claims.  It clarifies that the operational obligations under Article 2 are confined to detained patients. Informal patients are excluded.  It provides some clarity on the issue of limitation and victim status generally with the message that, while each claim will be looked at on a case by case basis, only the most serious of breaches are likely to persuade the court to exercise its discretion.  This case is a warning to Claimants and funders that they should not enter into HRA claims lightly, particularly where there is alternative domestic remedy available to them.  The nominal damages suggested in this case may dissuade some, but not all, from commencing an action.  We wait to see whether the judgment is appealed.

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