Supreme Court Judgment in Rabone v Pennine Care NHS Trust
clarifies law on Article 2, The Right to Life.
The scope of the operational duties imposed on NHS Trusts which arise from Article 2 of the European Convention on Human Rights (ECHR) has been considered by the House of Lords and the Supreme Court in two cases; Savage v South Essex Partnership NHS Foundation Trust and Rabone v Pennine Care NHS Trust. The House of Lords judgment in Savage and the Court of Appeal judgment in Rabone required clarity. Savage established that there was an obligation on a NHS trust to protect the life of a patient detained under the Mental Health Act (the ‘Act’), while Rabone held that there was no such duty in relation to those hospital patients who were mentally ill but were not detained pursuant to the Act. The position in relation to victim status i.e. the ability to bring a claim under the Human Rights Act was confusing – if a Claimant chose to bring a negligence claim he may forfeit his victim status within the meaning of section 7 HRA, but if he chose to pursue an Article 2 claim, even where the option of a negligence claim was open to him, he may be a victim. The Supreme Court’s decision in Rabone was therefore much anticipated, with all hoping that the law would be clarified for once and for all.
This article looks at the precedents Savage and Rabone have now established in relation to Article 2 ECHR and considers the implications for the NHS.
Round 1 : Savage – the detained patient
Mrs Savage was compulsorily detained under section 3 Mental Health Act 1983 (‘MHA’). She had a long history of mental illness but she had never deliberately self harmed. She had expressed suicidal ideation on only three occasions, once in November 2001 (nearly three years before her death) and twice in April 2004. During her last admission to hospital she was under the care of the Trust from 16 March 2004 to 5 July 2004. From 29 April 2004 she was placed on general observations on an unlocked ward. She enjoyed repeated regular visits home and during these visits did not threaten or attempt self harm. Her key concern was for the safety of her family. Her suicide risk was assessed as low. On 5 July 2004 Mrs Savage left the hospital grounds and committed suicide. Her daughter, Anna Savage, pursued a claim under section 7(1) of the human rights Act 1998 (‘HRA’). She alleged that the Trust had violated Mrs Savage’s right to life under Article 2 ECHR. A claim in negligence was not pursued.
In April 2009 the House of Lords considered the nature and scope of the Trust’s obligations under Article 2. They decided that where there is a ‘real and immediate’ risk of a detained patient, such as Mrs Savage, committing suicide, Article 2 of the ECHR imposes an operational obligation on the hospital to do all that can be reasonably expected to prevent a suicide. The obligation arises only if members of the staff knew or ought to have known that the particular patient presented such a risk. The House of Lords stressed in their decision that the threshold to breach Article 2 was a high one.
Round 2 : Rabone – the informal patient
Following the House of Lord’s decision in Savage, the case of Rabone proceeded to trial before Mr Justice Simon. Melanie Rabone was a 24 year old lady who suffered from severe depression and anxiety. She had a history of suicide attempts. She agreed to be admitted to hospital as a voluntary patient. She was assessed as being a moderate to high suicide risk and placed on 15 minute observations whilst an in patient. Shortly after admission, a doctor allowed Melanie Rabone to return home for two days, despite concerns being raised by her mother and father about her safety. During this leave Melanie Rabone committed suicide. Her parents brought a negligence claim against the Trust and they also alleged a violation of Article 2. The Trust admitted negligence and this aspect of the case was settled pre-trial.
At trial Mr Justice Simon adopted fully the House of Lords approach in Savage that the threshold to succeed in an Article 2 case was a high one and he concluded:
- On the facts there was not a real and immediate risk to Melanie Rabone’s life
- Melanie Rabone was not a patient who was detained compulsorily under the MHA and therefore Article 2 was not applicable as there was no operational duty on the Trust to take all reasonable steps to prevent her death
- The Claimants, Melanie Rabone’s parents were not victims within the meaning of section 7 HRA
- The Claimants claim was brought outside the limitation period and was therefore time barred
- If the Claimants had succeeded, the proper award would have been £1,500 for each Claimant.
The Claimants appealed to the Court of Appeal. The main focus of the appeal was whether or not it was critical to the House of Lords decision in Savage that the patient was a detained patient. The Court of Appeal upheld Mr Justice Simon’s decision and concluded that those patients who are formally detained are subject to Article 2 whereas those who are not detained i.e. voluntary patients are not. Melanie Rabone was not detained under section 3 MHA and she was not therefore detained for the purposes of Article 2. There was no operational obligation on the Trust to take all reasonable steps to prevent Melanie Rabone’s suicide. The appeal was dismissed but the Court of Appeal did go on to consider a number of other issues. In particular:
- If there had there been an operational duty on the Trust in Melanie Rabone’s case, it would have found that there was a real and immediate risk of suicide
- The Claimants were not entitled to pursue a claim under section 7 HRA because they had already obtained ‘effective redress in so far as the law can afford redress for a loss that lies beyond the reach of financial compensation’ through the negligence claim which was settled pre-trial
- If an award of compensation had been made the Court of Appeal would have awarded £5,000 per Claimant.
The Claimants appealed.
Round 3 : Rabone – the final decision
The Supreme Court unanimously allowed the appeal:
- The operational duty under Article 2 ECHR is owed to a voluntary mentally ill hospital patient – there is no distinction to be drawn between those who are mentally ill and detained under the MHA and those who are not.
- The obligation to protect the life of Melanie Rabone was breached as there was a real and immediate risk of suicide.
- The Claimants were victims for the purpose of Article 34 ECHR and they had not lost their status by virtue of the settlement of the negligence claim as this did not include any compensation for bereavement.
- The claim was not time barred – the Court applied its discretion to extend time on the basis the 4 month delay did not prejudice the Trust.
- The Court of Appeal’s assessment of damages of £5,000 per Claimant was correct.
The implications for the NHS?
The judgment is limited to psychiatric patients and does not extend to those patients in hospital receiving general medical care. Secondly, the Supreme Court continues to recognise that the threshold for succeeding in an Article 2 ECHR claim remains high. Ordinary negligence is insufficient to succeed in such a claim.
However, the operational duty to protect life has now been extended to cover detained and informal mental health patients. In terms of patient management it remains to be seen whether this has any impact on the way informal mental health patients are treated. Will we see an increase in the practice of defensive medicine? Will clinicians detain those who would otherwise have been informal patients to allow closer monitoring of their movements to avoid an adverse incident and thereby ignoring the principle of least restrictive measures in the treatment of mental health patients?
What is the likely impact on claims against the NHS?
The victim status barrier has seemingly been removed and the class of persons entitled to bring a claim has increased. Compensation for bereavement will be available to a broader category of persons than under the Fatal Accidents Act and negligence claims will be routinely accompanied by a claim for breach of Article 2 ECHR. We will see the UK and ECHR jurisprudence develop side by side with larger awards of damages and costs. The judgment is unequivocal as to the right of families such as the Rabone family to seek compensation but the debate as to the true limits of the application of Article 2 will continue for some time.