Abstract
This was a claim under Article 2 of the European Convention on Human Rights (Right to Life) from the parents of a patient, Melanie Rabone, who committed suicide on 20 April 2005. The Defendants had already settled a claim in negligence arising out of the same events.
Melanie first suffered symptoms of depressive illness in 2000. For a while, her condition improved, but on 4 March 2005 she attempted to commit suicide. She was admitted to hospital and, on 7 March, was assessed by a consultant psychiatrist as having suffered a severe episode of a recurrent depressive disorder. By 14 March she was considered to have shown sufficient signs of recovery to be allowed overnight leave, and was discharged on 18 March.
The family then went on holiday to Egypt. Melanie's mental state became increasingly frail, and on 31 March following her return to England she cut her wrists with broken glass. She was seen in A&E but was not readmitted to the psychiatric ward because no beds were available.
On 6 April, at an outpatient clinic, she was noted as having occasional ideas of suicide and frequent thoughts of self-harm. On 11 April she tied lamp flex around her neck. She was assessed as having a high risk of deliberate self-harm and suicide.
Melanie agreed to be admitted informally to hospital, and was kept under continuous 15-minute observations. A full mental state examination was carried out by a nurse, who recorded her as having a moderate to high suicide risk.
On 13 April, her father spoke to a nurse and expressed grave concern about her current condition. However, on 16 April, the nurse recorded that Melanie appeared to be brighter in mood.
On 19 April, Melanie requested home leave. This was granted on the basis that when she saw her friends she did not talk about herself and become the centre of attention. The consultant psychiatrist advised her to take responsibility for her own actions. She therefore left the ward for two days home leave.
It was common ground between the parties that the decision to grant home leave at this point was negligent, the expert psychiatrists agreeing that, had leave been not allowed and had Melanie insisted upon it, she was likely to have been detained under the Mental Health Act 1983.
The following day, Melanie hanged herself from a tree in a local park. The inquest returned a verdict of suicide. An investigation by the trust reached the conclusion that their risk assessment of the deceased had not been completed properly.
The Human Rights Act claim was lodged on the basis that the trust was allegedly in breach of its obligation to take preventative operational measures to protect Melanie's life. As noted above, a claim in negligence had already been settled by the trust. The HRA claim was divided into nine agreed issues as follows:
Issue 1 – the operational issues
In Osman v United Kingdom (2000) 29 EHRR 245, the European Court of Human Rights held as follows: ‘where there is an allegation that the authorities have violated their positive obligation to protect the right to life … to prevent and suppress offences against the person, it must be established … that the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk’. Those circumstances were distinguishable from the present case, inasmuch as there was no criminal act of a third party involved.
However, in Savage v South Essex NHS Trust (Clinical Risk 2009; 15: 85–6), the House of Lords considered the application of Osman in the case of a sectioned patient who had absconded from hospital and committed suicide. It held that in such circumstances ‘the operational obligation arises only if members of staff know or ought to know that a particular patient presents a real and immediate risk of suicide’.
On the facts of the present case, Simon J held that the House of Lords in Savage was drawing a distinction between those who are detained and lack capacity, and those who are not detained and have capacity to consent or object to treatment. Melanie had not been detained for assessment or treatment on the 19th April 2005. She was not subject to complete and effective control over her care and movements.
Held: the operational obligation referred to in Savage was confined to cases of detained mental patients. Accordingly, the trust was not in breach of this obligation towards Melanie.
Issue 2 – whether there was a real and immediate risk to life, et cetera
The Claimant's expert psychiatrist considered that there was an extremely high probability of suicide, of the order of 70%. The Defence expert placed the risk at between 5–20%, i.e. low to moderate.
Held: there was a real risk, but it was not an immediate risk, and had to be measured against what steps it was reasonable to take so as to avoid it. In all the circumstances, there was no breach of Article 2.
Issue 3 – whether there was a systemic breach of Article 2
Held: what occurred at the hospital fell far short of a failure to have a system for the assessment of risk of suicide in mental patients. There was plainly a system for assessing the risk and noting the conclusions. While the risk assessment had not been properly documented, that did not constitute a systemic breach.
Issue 4 – whether serious negligence, in the sense of a collective failure to provide protection for Melanie, amounted to a breach of Article 2
It had been argued on behalf of the Claimant that the level of culpability required for a breach of Article 2 was more than ‘simple negligence’, but less that ‘gross negligence’, i.e. a test of ‘serious negligence’. Such a test was unfounded in law and was largely impractical in application. Such a test, if capable of proof, would not be sufficient to ground a claim under Article 2.
Issue 5 – whether breaches of Article 2 were causatively linked to Melanie's death
Held: there had been no substantive breaches, but if there had been, the Trust had not argued against a connection.
Issue 6 – was there an actionable breach of the ‘investigatory’ obligation under Article 2?
Held: there had been no breach. The obligation to set up an effective system was that of the State. In any event, that obligation had been satisfied by the inquest and the availability of the present legal proceedings, which had led to an admission that the Trust was negligent and to an apology to the parents. Furthermore, the Serious Untoward Incident process was a proper investigation for these purposes, although the period which it took (18 months) was far too long.
Issue 7 – the status issue
The question here was whether the Claimants were ‘victims’ for the purpose of bringing a claim under the Human Rights Act. The Trust argued that they were not, and moreover that having settled the negligence claim, they could not then bring a further claim under the HRA.
In Powell v United Kingdom [2000] 30 EHRR CD 362, the Strasbourg Court had held that ‘where a relative of a deceased person accepts compensation in settlement of a civil claim based on clinical negligence, he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death’. In Savage [q.v], Lord Scott had observed: ‘I am quite unable to understand how a close family member can claim to be a victim in relation to an act, in breach of the Article 2.1 negative obligation, or in relation to an omission, in breach of the Article 2.1 positive obligation, that has led to the death’.
Held: the definition of ‘victim’ was relatively narrow when considering the substantive Article 2.1 positive and negative obligations. The court would be careful to examine any claim which forms part of proceedings which had been settled, since the claim which had been settled might amount to an appropriate and sufficient vindication of Article 2 rights. While there was no absolute bar to advancing a claim based on Article 2 where part of the original claim had been settled, the more serious the breach, the less likely it would be that the court would regard the claim as being barred on the sole ground of the Claimant's status. The claim for breach of the substantive obligation under Article 2 had failed. Moreover, this was not a case where no other remedy was available, given the trust's admitted failure to provide reasonable care for Melanie and their apology. For these reasons, the Claimants did not fall into the category of victims and this aspect of the claim failed.
Issue 8 – limitation
Section 7 (1) (a) of the Human Rights Act provides that proceedings under the act must be brought before the end of ‘the period of one year beginning with the date on which the act complained of took place’, or (b) ‘such longer period as the court … considers equitable having regard to all the circumstances’. The burden was on the Claimants to demonstrate why limitation should be extended. The court had a wide discretion and proportionality would generally be taken into account. Unusually, what prompted the claim was that the parents saw Dr Megher, the trust's psychiatrist, on the television programme ‘University Challenge’ in 2006. The decisive factor was that there was no merit in the claims to which this issue was relevant, and therefore the court would decline to exercise its discretion to extend the time limit.
Issue 9 – the remedy issue
Held: The measure of bereavement damages under the Fatal Accidents Act was not an appropriate guide. Had the Claimants been successful, a more modest sum would have been appropriate to recognize the breaches of convention rights. That sum would have been £1500 for each of the parents.
Robert Francis QC and Nigel Poole (instructed by Pannone LLP) for the Claimants. Monica Carss-Frisk QC and Jane Mulcahy (instructed by Hempsons) for the Trust.
Comment
This was an extremely important judgment, filling in a number of gaps which were not adjudicated upon by the House of Lords in Savage. It was undoubtedly a tragic case and the sympathies of all readers are likely to be with the parents. However, the legal attempt to have a ‘second bite of the cherry’ was ill-advised, given the settlement of the negligence claim. While, as the judge observed, separate HRA actions arising out of similar circumstances are not completely prohibited, the conduct of the Defendant would have to be particularly egregious for a parallel HRA claim to succeed.