A bad decision for patients

In the first medical case to be considered by the Supreme Court, it has been held that the Article 2 Right to Life is engaged when psychiatric hospitals are considering whether to discharge voluntary patients. This might seem to be an academic point of no great moment, but the Senior Partner of Hempsons, who acted for the Defendant NHS Trust, believes it was a case of vital significance and the decision was profoundly wrong. This article is a personal view and does not purport to represent the views of Pennine Care NHS Foundation Trust, the Defendant or the NHSLA, which funded the Defence.

What was the problem?

If there was any sense of dissatisfaction with the disposal of the case according to the law, it was that the statutory scheme created by the Fatal Accidents Act deliberately excludes parents of adults from those entitled to financial compensation for bereavement. As Lady Hale put it in her judgment

We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child. ¹

Whether Parliament's invention was an error of judgment or whether in fact it failed to go far enough in embracing the classes of those bereaved is a matter for the legislature. In 1999 the Law Commission ² suggested expanding the class of the bereaved and enabling up to three people to claim £10,000 each: Parliament has since consistently declined to endorse the proposal. Whatever the result, this is an issue of judgment rather than a deficiency in the law to be remedied by the ingenuity of the judiciary. Still less does it provide any justification for creating a parallel and possibly duplicate scheme under the guise of the Human Rights Act. If that were to happen the judiciary would be explicitly circumventing the will of Parliament.

What was the likelihood of suicide?

Every year some 70,000 people in England attempt to kill themselves or self-harm in a way that may threaten a subsequent suicide. ³ According to the National Confidential Inquiry into Suicide and Homicide by People with Mental Illness (NCISH) about 4500 people a year commit suicide, of whom about 1200 have been in contact with the mental services within the previous 12 months. ⁴ They say that mental health service users are almost 40 times more likely to commit suicide than the rest of the population, but it is still a rare event: about 0.1% of mental health service users kill themselves within 12 months. Thus the risk of any given person who has attempted suicide going on to take their own life is relatively small.

We depend upon the wisdom of the psychiatric profession to distinguish those who should be detained. Until now they have taken into account several factors: certainly whether there is a significant risk of suicide, ‘a real and immediate risk’ in the modern patois, is a major issue but doctors also have to be satisfied that the patient is suffering from a treatable disease and in marginal cases they have taken into account the extent of distress the patient is suffering, the benefit they seem to be getting in hospital and the quality of home support available. In short they have decided whether it is a good idea for them to be detained. They are bound to get it wrong in some cases: the way to take every reasonably practical precaution to minimize the risk is to detain large numbers of young people in acute wards for long periods. This will only avoid suicide insofar as the nurses are able to defeat the ingenuity of those determined to end their lives, since NCISH also report that the risk cannot be totally eliminated by detention: about 100 inpatients succeed in killing themselves every year. ⁴ Where doctors do detain it will challenge the patient's right to liberty guaranteed by Article 5 of the Human Rights Act.

In the less artificial and more immediate language of everyday life, it will make a mess of their lives and prevent them from maturing into rounded adults if, in an attempt to avoid risks which are part of their lives, people are detained in mental hospitals. This will rarely be conducive to their development and the decision of the wise doctor will be multifactorial.

However modest the risk of suicide may be according to national statistics, and however many patients may recover to live fulfilling lives every year after being discharged from Stepping Hill and other hospitals, once the subsequent fatal attempt has been made, it will usually be futile to try to persuade a judge that there was no real or immediate risk. The retrospectoscope is a dangerous weapon in the hands of those trying to judge the actions of others at the best of times, but when the issue is to be tried merely by the question of whether there was a real risk rather than whether the doctor acted reasonably in assessing that risk, the issue seems hopeless. The default position must be that absent chance events, nothing would have come about unless there was a real and immediate risk that it would do so.

What do Strasbourg and the UK courts say?

The Strasbourg jurisprudence imposes an obligation on the state to take every reasonable step to prevent suicide only where it has contributed to the danger. This started with prisoners: on the basis that it is right and just that the state should look after those mostly young people whom it forces to live in horrible places with dangerous fellow prisoners by way of punishment. When the state selects people for punishment ⁵ or holds immigrants in detention, ⁶ the least it should do is to take every reasonably practical step to protect their lives in the anguish into which it has plunged them.

People conscripted into armies ⁷ — young people forced to live away from home doing a dangerous job surrounded by lethal weapons — are also caught by this rule. Once again these people have been placed in extreme circumstances by the state for its own purposes and it seems reasonable to expect it to do whatever it can to protect them. However, the Supreme Court has held that UK volunteer soldiers ⁸ are in a different position from conscripts: the fact that they are there as volunteers, even though they are subject to military discipline and treated in the same fashion once signed up, means that there is no such obligation. So in the army our courts distinguish the volunteer from the compulsory soldier.

Moving on by analogy, albeit so far in the UK alone, our Supreme Court has embraced people detained under the Mental Health Act. This called for a stretch of imagination, because unlike the other cases where the state created the danger for its own purposes, here the state acts only from a desire to protect people from precisely the danger that has come about: if it had done nothing at all the same tragedy would have happened, so how does the state come to be responsible? Lady Hale explained in Savage v South Essex:

All of these patients have been deprived of their liberty within the meaning of Article 5 of the Convention. All are under the control of the hospital (or in the case of restricted patients, the Secretary of State). They may not leave when they wish to leave. Their visits and correspondence with the outside world may be controlled. They may be given most forms of treatment for their mental disorder without their consent (although special safeguards apply to some treatments). They may be detained in a wide variety of settings, ranging from high security institutions such as Broadmoor to open wards from which it is relatively easy to escape. But they cannot choose where they are placed. They cannot choose their doctors. They cannot choose their medical treatment. In short, although their circumstances may be a great deal pleasanter than those of other detainees, they are deprived of more of their ordinary civil rights than other detainees. ⁹

Ignoring the benign purpose of the detention, she concentrated on the practical effect from the patient's point of view. She emphasized that Mrs Savage was, in terms of the military analogy, a conscript rather than a volunteer. However the extension to voluntary patients such as Melanie Rabone is much harder to justify, even once this jump has been made. It is said that her freedom to leave depended on her cooperating in the sense of not insisting on leaving. This may be so, but we shall never know because she did not challenge the judgment of those trying to help her. She was admitted as a voluntary patient and she was granted weekend leave when she requested it.

Whatever the carers would have decided if challenged, the distinction is a vital one in civil life: the policeman who interviews me may arrest me if I do not cooperate, but 1000 years of the common law have seen the distinction created by the moment when he does so as being utterly fundamental. The Supreme Court saw the distinction between the conscript and the volunteer as being vital in the army. The particulars set out by Lady Hale may create a justification for holding the state responsible for a state of affairs that it has done its incompetent best to prevent, but matters are turned on their head when those who are not subject to the Mental Health Act regime are caught on the basis that they might have been if they had chosen to leave.

The argument that the state can be said to have compelled Miss Rabone to remain in hospital by the implied threat that she would be detained if she tried to leave, looks even stranger when it is realized that the negligent act was allowing her to leave. The complaint is not that the state took control of her life, but that it failed to do so. Notwithstanding the right to liberty guaranteed by Article 5, there now appears to be a human right to be imprisoned that is enforceable against the state. Not only is this unknown in the UK and Strasbourg jurisprudence, it may well be the first time anyone has introduced such an idea in the history of democratic society.

What will this mean for other cases?

Absent primary legislation or another decision finding the Supreme Court has got it wrong, doctors and their patients are stuck with this decision. There is no scope for the state to appeal to Strasbourg against the errors of its own judiciary and it is difficult for Parliament to legislate to over-rule a decision that human rights are engaged. However the implications of this decision will have to be considered in the context of those who do not go to mental hospitals at all, but are assessed by psychiatrists in the community or who go to A&E Departments. Some of them will have taken overdoses and present for a psychiatric assessment. Others may not, but will be assessed because other doctors are worried about their behaviour and ask a junior psychiatrist to assess them. Are we to replace the Bolam test with an obligation to imprison whenever this real and immediate risk can be identified in retrospect?

How will those suffering from physical disease fare? Lord Dyson who gave the lead judgment, saw no analogy because the patient who undergoes surgery will have accepted the risk of death on the basis of informed consent. That may fit the standard model, of competent adults undergoing elective surgery, but many patients are treated on a quite different basis: some patients arrive unconscious after road traffic accidents, others lack capacity on grounds of cognitive impairment and both groups often have to be treated on the basis of the doctor's assessment of their best interests. Is it now to be proposed that these patients are also protected by the HRA and may it also create a positive duty, compelling the doctor to operate where that seems to provide the most effective means of avoiding the risk?

Leaving aside the rational shortcomings of the decision that there is a human right to be detained, how much difference will it actually make? To put it another way, how many people will hospitals have to detain? If 1:1000 mental health service users actually commit suicide, there must be a much greater number where there is some risk. It is hard to see what the word ‘real’ adds in this context: obviously the likelihood will vary from case to case, but it can hardly be dismissed as fanciful – at least not in any trial taking place after it has come about. The risk must be ‘immediate’ because it is as great now as it will be at any other time. Lord Dyson said that the risk does not have to be imminent, but it has to be ‘present and continuing.’

Here the judgments are obscure because they were dealing with a case where negligence was admitted. We know from other circumstances that when the Article 2 Right to Life is engaged, the state must do everything reasonably practical to protect that right. In the case of an individual patient who is at some risk of suicide, the response is well established: they should be detained under the Mental Health Act and prevented from leaving. It is perfectly reasonable and practical to detain one person and after the event litigation is always concerned with individual events.

However, it is obviously neither reasonable nor practical to detain thousands more each year within existing resources. And how long should they be detained? One of the strongest arguments for releasing such patients is that it is the best if not the only way for them to come to terms with their problems. If the detention is to be for more than a year, and in some cases at least it will be, we are going to need to build a lot more locked wards. Even supposing that we are going to be able to find a way to work round this misguided decision, there can be little doubt that doctors, psychiatric nurses and tribunals considering applications for discharge have all been given a sharp kick in a more conservative direction.

The case will also raise a conundrum as far as private practice is concerned. The Convention right is only enforceable against the state and so at first blush a private doctor who is not employed by the NHS or in any way controlled by the state would appear to have escaped this burden. It seems absurd to suggest that a private doctor who has not detained anyone could be said to have incurred this obligation, but Alice has to enter Wonderland to understand the strange rules that prevail there. Begin with the private prison contractors like SERCO who detain people sentenced by the courts. It cannot be doubted that they do so on behalf of the state and incur the same liabilities as the prisons run by the Ministry of Justice. So it is not the identity of the prison manager that creates the liability, it is the power they are given by the law to detain.

Then move on to NHS patients: it does not seem to matter whether their services are commissioned from hospitals directly controlled by the Secretary of State as ordinary NHS Trusts, from private hospitals, or from those in between bodies, Foundation Trusts like Pennine Care. The obligation springs not from the identity of the hospital manager, nor from the identity of the commissioner of services, but from the power to detain in appropriate circumstances conferred by the Mental Health Act on all doctors recognized for the purpose.

It seems likely that the result of this decision over the next few years will be to move practitioners generally into a more detention-minded direction. As a result it will shape the norm and we will find it harder to find experts who are prepared to advance a Bolam defence for doctors who have taken a calculated risk on behalf of their patients. The ordinary law of negligence is shaped by professional practice and so it is influenced by many factors such as decisions like this. Just as Whitehouse v Jordan ¹⁰ hastened the demise of Kielland's forceps, so Rabone v Pennine Care will have increased the tendency to detain the mentally ill.

Have we accidentally wandered into an area of strict liability for loss of life? And if so, of all the classes of people who die in each year, by what incomprehensible calculus did we come to select for this purpose those who have no dependants and who choose to take their own lives? If good laws are those that are readily explicable to and resonate with the values of the man on the Clapham omnibus, Rabone v Pennine Care seems to fail the test.