Abstract
This case, involving the suicide of a voluntary psychiatric patient, has already appeared in two previous issues (Clinical Risk 2009; 15:211 and 2010; 16:201).
This report is of a landmark ruling by the Supreme Court, which overturned the first instance and Court of Appeal judgments on the applicability of Article 2 of the European Convention on Human Rights (right to life) to the facts.
Melanie Rabone was born in 1981 and in 2000 was diagnosed as suffering from depression. On 4 March 2005 she tried to commit suicide, and on 7 March was diagnosed as suffering from severe depressive disorder. She was subsequently discharged and went on holiday with her family, but on 31 March she cut both her wrists with broken glass and was re-admitted to hospital. On 6 April an SHO noted that she had occasional thoughts of suicide and on 11 April she tied a lamp flex around her neck. She agreed to an informal admission to hospital, and the SHO recorded that if she attempted to leave, she should be assessed for detention under the Mental Health Act (MHA).
She was considered by a psychiatric nurse as having a moderate-to-high suicide risk. On 13 April, her father urged that she be not allowed home, so concerned was he by her mental state. Five days later, Mr Rabone telephoned the ward to say that Melanie was not improving and that she had expressed fleeting suicidal thoughts.
However, on 19 April Melanie requested home leave and was assessed by the consultant psychiatrist. He sanctioned the request, advising Melanie to take responsibility for her actions. She therefore left hospital that evening.
The following day she spent mostly with her mother, but in the late afternoon went out and some time after 17:00 hanged herself from a tree in the local park.
In August 2006, proceedings against the trust in negligence on behalf of the estate were issued; but additionally, Mr and Mrs Rabone claimed damages in their own right for breach of Article 2.
The negligence claim was settled in May 2008 for £7500 plus costs, but the parents persisted with their Article 2 claim. This was rejected both by the trial judge and by the Court of Appeal, mainly on the basis that since Melanie was a voluntary patient, as opposed to one detained under the MHA, Article 2 did not provide a remedy. The parents appealed to the Supreme Court.
Lord Dyson gave the leading judgment, which was endorsed by all the other Justices. He stated that six issues arose, as follows:
(1) Whether the operational obligation under Article 2 can in principle be owed to a voluntary psychiatric patient
This is the state's duty to take, in certain circumstances, ‘preventative operational measures’ to protect an individual whose life is at risk.
The European Court of Human Rights in Osman v U.K. (2000) 29 EHRR 245 held that a breach of this duty will arise where: 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 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.
Since the ruling, the Strasbourg court has held such a duty to exist in the case of prisoners, detained asylum seekers and military conscripts inter alia. The House of Lords decided in Savage v S. Essex Partnership NHS FT (Clinical Risk 2009; 15:85) that the duty also extended to patients detained under the MHA.
This was in contrast with the position in respect of hospital deaths resulting from negligence, where Strasbourg had held in Powell v UK (2000) 30 EHRR CD 362 that Article 2 was not engaged if a state had made adequate provision for securing high professional standards among health-care workers and the protection of lives of patients.
Strasbourg had repeatedly emphasized that the vulnerability of the victim was a relevant consideration in Article 2 cases. The court had even been prepared to find a breach of operational duty where there had been no assumption of control by the state, such as where a local authority failed to exercise its powers to protect a child who, to its knowledge, was at risk of abuse: Z v UK (2001).
Differences between detained and voluntary psychiatric patients should not be exaggerated: in many ways they were more apparent than real. An informal patient may be treated in a secure environment in circumstances where she is suicidal. In Melanie Rabone's case, the very reason why she was admitted was because there was a risk she would commit suicide.
There was accordingly no doubt that the trust owed Melanie an operational duty to take reasonable steps to protect her from the real and immediate risk of suicide. Although not a detained patient, it was clear that if she had insisted on leaving hospital she would have been detained.
(2) Was there a ‘real and immediate’ risk to the life of Melanie on 19 April 2005 of which the trust knew or ought to have known, and which they failed to take reasonable steps to avoid?
The Court of Appeal considered that the risk was both real and immediate. Nevertheless, the threshold for the operational duty was higher than that required to establish negligence. The expert psychiatrists called by the parties agreed that all ordinarily competent psychiatrists would have regarded Melanie as being in need of protection against the risk of suicide. There was a real risk that Melanie would take her own life during the period of home leave. It was common ground that the decision to grant leave was one which no reasonable psychiatrist would have taken. The Court of Appeal's view was correct: the trust failed to do all they could reasonably be expected to have done to prevent the real and immediate risk of suicide.
(3) Were Mr and Mrs Rabone ‘victims’?
Strasbourg had repeatedly stated that family members of the deceased's family can bring claims in their own right in relation to the substantive obligations under Article 2 (as well as in relation to the investigative obligations).
(4) Did Mr and Mrs Rabone lose their victim status as a result of the settlement of their negligence claim?
It was common ground that a person ceases to be a victim if (i) the public authority has provided adequate redress and (ii) it has acknowledged, either expressly or in substance, breach of the convention.
In accepting settlement of the negligence claim on behalf of the estate, the parents did not renounce their Article 2 and bereavement claims. The latter was not available to the parents under English law because Melanie was over 18 when she died. In those circumstances, settlement of the negligence claim had no legal effect on the status of Mr and Mrs Rabone as victims.
The estate's claim had been settled for £7500. Nothing had been paid to Mr and Mrs Rabone to compensate them for their bereavement, given the provision of the Fatal Accidents Act, 1976 that bereavement damages for loss of a child shall only be for the benefit of parents of a minor.
Had the Court of Appeal concluded that there was an entitlement to Article 2 damages, they would have increased the trial judge's figure of £1500 per parent to £5000 per parent. Accordingly, the initial settlement did not provide adequate redress for Mr and Mrs Rabone, and so they did not lose their victim status by accepting it.
(5) Limitation
Melanie died on 20 April 2005. Proceedings were issued on 11 August 2006, i.e. almost four months after expiry of the one-year limitation period for claims under the Human Rights Act. However, the court had a wide discretion to take into account factors of the type listed in s 33 of the Limitation Act, 1980 as being relevant when deciding whether to extend the period in cases of personal injury or death.
The extension sought was only four months. The Rabones could have commenced proceedings within the one-year period but were encouraged by the trust to wait for the report on their internal investigation. The trust had suffered no prejudice by the delay and Mr and Mrs Rabone had a good claim under Article 2. Consequently, it was appropriate to grant the necessary extension of time.
(6) Quantum
The power to award damages in such cases comes from s 8(3) of the Human Rights Act. However, no award should be made if any other relief or remedy granted constitutes just satisfaction. There were many Strasbourg cases where that court had awarded damages for non-pecuniary loss. These ranged from €5000 to €60,000. Factors tending to place the amount towards the upper end of the range were: close family ties; the fact that the breach was especially egregious; and the fact that the circumstances of the death and the authority's response to it were particularly distressing to the victims.
Here, there were indeed close family ties, and the very risk which the parents had feared and warned the hospital against had come about. There was real force in the submission that £5000 per parent was too low, but there had been no appeal on this point and therefore the ruling of the Court of Appeal on damages would stand.
Lord Mance, while endorsing this opinion, stated that rulings of the Strasbourg court do not respond well to the close linguistic analysis that a common lawyer would give to binding precedents. He observed that there were apparently irreconcilable Strasbourg decisions on the question of loss of victim status.