The Supreme Court has delivered its long awaited judgment in the case of Rabone v Pennine Care NHS Foundation Trust. In summary, the Supreme Court made the following findings:
- Non detained mental health patients should be afforded the same degree of protection as detained mental health patients, under Article 2 of the ECHR. Both the general obligation and operational obligation will apply to both categories of patients.
- Physically unwell patients will not ordinarily attract the higher protection of the operational obligation and the decision of Powell v UK was approved (ordinary medical negligence is not sufficient to hold a State to account under Article 2).
- The test for real and immediate risk is a risk which is more than remote or fanciful and which is present and continuing.
- The parents were found to be “victims” within the meaning of the Convention.
- Notwithstanding the recovery of damages in the negligence claim, Mr and Mrs Rabone could recover damages for their own loss. They were awarded £5,000 each.
This Article will review the impact of this decision upon inquests and mental health practice. We will be publishing a separate article considering the impact of the decision upon claims.
Melanie Rabone (aged 24) was admitted to the Stepping Hill Hospital on the 11 April 2005. She had had a recent history of serious self harm attempts. Immediately prior to her admission she had tied a lamp flex around her neck.
On admission, Melanie was advised that if she attempted to leave, she would be assessed for detention under the Mental Health Act. She was assessed as a moderate to high suicide risk and she was placed on 15 minute observations.
Melanie remained on 15 minute observations until 19 April. She was then assessed, in the presence of her mother, by her consultant psychiatrist. She requested to return home for the weekend. Despite her mother raising concerns about the safety of this course, the consultant allowed her 2 days leave. On the second day of this leave, she hung herself.
The Pennine Care NHS Foundation Trust admitted liability in negligence for the decision to allow her to leave the hospital. They denied a breach of Article 2. The basis of the defence was that the operational obligation owed to detained patients, did not apply to voluntary patients and that the breach of duty was not sufficient to amount to a breach of the general obligation under Article 2. Both the High Court and the Court of Appeal held in their favour. The Supreme Court however unanimously rejected their arguments.
Article 2 and the Operational Obligation
There are 2 limbs to the positive duty owed under Article 2.
- The first limb is the general obligation to put in place legislative and administrative frameworks to protect patients. This largely relates to over-arching systems and will apply to policy making; training of staff and regulation. This will apply in all healthcare cases.
- The second limb is the operational obligation, which only applies in well defined circumstances. This places a duty upon the State to take appropriate steps to safeguard the lives of those within their care where they knew, or ought to have known of the existence of a real and immediate risk to their lives. Until this decision, the well defined circumstances included prisoners, detained mental health patients and immigration detainees. The Supreme Court has now extended this category to include voluntary mental health patients.
What about physically ill, general hospital patients?
The Supreme Court rejected the view of the Court of Appeal that voluntary mental health patients should be treated in the same way as physically ill patients.
The Supreme Court considered that voluntary mental health patients should be afforded the greater protection of the operational obligation, due to their “special vulnerabilities” and the fact that they could be detained if they try to leave the hospital. The question arose as to whether such patients are truly voluntarily in hospital or whether they are in hospital as a result of their fear of the Mental Health Act being used against them. Such fear would not apply to a physically unwell patient. The Court also considered that physically unwell patients had more autonomy in accepting risks presented to them.
It will not be surprising to see attempts to extend the category again. What about patients under the DOLS authorisations, patients on CTO’s or s.17 leave, patients with learning disabilities who require physical healthcare, patients in a temporary confusional state arising from a physical disorder for which they are receiving treatment?
How will this decision affect Inquests?
Most inquests involving the suicide of mental health patients – whether detained or voluntary – will now be conducted as Article 2 inquests.
Where an Article 2 inquest is held, the family are more likely to secure Legal Service Commission funding. There will therefore be more legal representation for families. Coroner’s may be more inclined to hold the inquest with a jury and may be more inclined to call independent expert witnesses. Narrative verdicts will also be used more frequently.
Staff appearing as witnesses can expect to receive questions not just in relation to gross failures and basic medical attention (the “neglect” test) but also questions around real and immediate risk and whether appropriate precautions were taken.
What are the implications for mental health practice?
The Court found that there was no proper assessment of risks before leave was allowed and no proper planning was put in place for her period of leave. The only care plan was to place responsibility on to Melanie’s parents, in circumstances where her parents had made it quite clear that they were concerned about her leaving the hospital. The Court in the case of Savage v South Essex Partnerships NHS Trust also found a breach of Article 2 as a result of inadequate risk assessment and care planning.
The Courts have accepted that there is a difficult balance to be struck between the right of the individual patient to freedom and self determination and the right to be prevented from taking their own life. The Court has further accepted that hospitals will only be required to take steps that they could reasonably be expected to take – bearing in mind demands upon resources and proportionality.
What is absolutely required in any case involving a suicidal patient is a clear, thorough and robust written assessment of risks. This should include consideration of historical risk and an assessment of current risk. This risk assessment should be updated whenever key decisions are made. The risk assessment must then be accompanied by a care plan which sets out clearly a management plan for each risk identified.
Any policy in place around risk assessment must also be followed. If it is not followed then there must be very clear (and ideally documented) reasons as to why the policy was not followed.
Finally, evidence of documented, multi disciplinary decision making around key decisions is invaluable. If all of these steps are taken, the likelihood of a finding of breach of Article 2 is substantially reduced.
Mental health staff should be made aware of the decision and the importance of clear documentation around care planning and risk assessments should be re-enforced.