Case of the week: Human rights

The European Convention on Human Rights (ECHR) 1950 art.2 imposed an operational obligation on states to protect mentally ill patients not detained under the Mental Health Act 1983 where there was a real and immediate risk of suicide.

Appeal allowed

Mr and Mrs Rabone appealed against a decision that Pennine Care NHS Trust did not have a duty under ECHR 1950 art.2 (the right to life) to take reasonable steps to protect their mentally ill daughter, Melanie, from the risk of suicide.

Miss Rabone suffered from depression and had been informally admitted to hospital following a suicide attempt. She was assessed as at high risk of suicide, but was allowed two days’ home leave, during which she committed suicide.

Her parents’ subsequent negligence claim was settled, but the High Court held there was no breach of duty under the ECHR.

In relation to the Article 2 claims, some issues arose on the appeal. First, whether the operational obligation can be owed to a patient who is mentally ill but not detained. If so, did the NHS trust breach that duty, making Mr and Mrs Rabone “victims” in the meaning of the ECHR? If they are considered victims, should they lose that status because of the settlement in the negligence case, or were their claims time-barred?

If the answer was no, did the appellate court err in holding that it would have awarded £5,000 each to Mr and Mrs Rabone if their claims had been established?

 

Appeal allowed

The ECHR had not considered whether an operational duty existed to protect against the risk of suicide by informal psychiatric patients. However, the Strasbourg jurisprudence showed that such a duty existed to protect persons from risk of suicide where they were under the state’s control.

Pennine Care owed a duty to Miss Rabone to take reasonable steps to protect her from the real and immediate risk of suicide. She was vulnerable and Pennine had assumed responsibility for her. In reality, the difference between Miss Rabone’s position and that of a hypothetical detained psychiatric patient in similar circumstances was one of form, not substance.

This led to the conclusion that the operational duty existed in her case. There was a real risk that Miss Rabone would take her life when allowed home and the NHS trust ought to have been aware of that risk.

The decision to allow Miss Rabone two days’ home leave was one that no reasonable psychiatric practitioner would have made. Pennine had failed to do all that could reasonably have been expected to prevent the real and immediate risk of her suicide.

The ECHR had stated repeatedly that family members could bring claims in relation to obligations under Article 2. The parents had not renounced an Article 2 claim by settling the negligence claim.

No such claim had been made in the negligence proceedings because it was not available in English law.

The settlement had no legal effect on the parents’ status as victims. There had been no adequate redress as there had been no compensation for the non-pecuniary damage suffered by the parents as a result of the breach.

The time extension would be granted and they were awarded £5,000 each.

For Rabone & Ors

Jenni Richards QC, 39 Essex Street

Nigel Poole, Kings Chambers

Emma Holt and Gill Edwards, Pannone

For Pennine Care

Monica Carss-Frisk QC and Jane Mulcahy, Blackstone Chambers

Bertie Leigh, Hempsons

For interveners: Inquest, Justice, Liberty and Mind

Paul Bowen and Alison Pickup, Doughty Street Chambers

Saimo Chahal, Bindmans

Commentary

Jenni Richards

After losing their claim in the High Court and the Court of Appeal (CoA), the parents of Melanie Rabone, a young woman who took her own life after wrongly being allowed to leave a psychiatric unit, won their battle in the Supreme Court to establish that the hospital trust owed Melanie a duty under Article 2 of the European Convention on Human Rights. 

 The High Court and CoA had ruled that the duty to take positive steps to protect the life of a particular person known to be at real and immediate risk was not owed to Melanie, because it arose only in the case of detainees and could not be owed to an informal hospital patient. 

The Supreme Court has now concluded that the obligation is owed to all psychiatric patients who are at real and immediate risk of suicide, whether detained or not.  

The ruling will clearly apply to other informal psychiatric patients. 

Perhaps most significantly, however, the court’s reasoning means that there is scope for the boundaries of the duty to be explored  further and in other contexts. Rather than focusing on the fact of detention, as the lower courts and previous authorities had done, the Supreme Court concluded that a range of factors may be relevant in determining whether the operational duty exists in any given circumstance, including an assumption of responsibility by the state, the vulnerability of the victim and  the nature of the risk to which they were exposed.  

Jenni Richards QC of 39 Essex Street represented the parents of Melanie Rabone