Liability for the Suicide of a Patient

The patient, a young adult woman, had attempted self-harm and suicide on several occasions. She suffered serious psychiatric problems, recurrent depressive disorder. She was admitted to hospital as a real and immediate suicide risk as a voluntary patient. She expressed the wish to go home for a few days. The doctor in charge agreed to this, though the parents were extremely apprehensive and said so. While at home she committed suicide: Rabone v Pennine Care NHS Trust [2012] UKSC 2.

A number of legal issues arose:

The estate of the deceased sued for negligence.

The estate of the deceased sued for breach of the right to life: Article 2 of the European Convention on Human Rights 1950 as incorporated into English law by the Human Rights Act 1998.

The parents sued as bereaved victims of the breach of the duty to ensure the right to life.

Negligence

The duty of care requires the doctor reasonably to foresee the risk of harm and take action accordingly. Where the doctor knows or should know of the risk he must do all that is to be reasonably expected of him in the circumstances. Humans can be very unpredictable. The patient may admit that he has tried suicide previously, and say that he intends to try again. Or he may say that he has a gun and poison at home. He may not speak of suicide, but all the indications may be there. What should the doctor do? Talk to and advise the patient. Prescribe appropriate drugs. Bring in the family. Refer the patient to the hospital. Refer the patient to an appropriate consultant. Discreetly set the compulsory procedure under the mental health legislation in motion. Perhaps alert the police: Osman v United Kingdom (1998) 29 EHRR 91.

In the hospital or similar institution the doctor in charge should ensure that the patient is properly assessed and treated, and kept under regular albeit discreet observation. There may be a risk that the patient will prematurely discharge himself. The doctor should ensure that a not-to-be-recommended departure from the hospital is “discouraged”, and be prepared to start the compulsory mental health procedure where appropriate.

The patient may be suffering from severe recurrent depressive disorder. He is impulsive, has low self-esteem; and he has previously indulged in self-harm; perhaps he has attempted suicide. The patient may seem to be improving; there may be pressure on the beds. In consultation with colleagues and the nurses and the family he discusses the possibility or desirability of a few days’ “home leave”. All agree with the proposal, the patient goes home, and commits suicide. Is this sufficient to establish negligence?

Was there a risk assessment of the patient and what did it show?

What was the nature and significance of the risk of suicide?

What was the age of the patient?

What was the capacity of the patient?

Have there been any previous attempts, how many, and in what manner?

Was there any history of self-harm?

What was the nature of the support or supervision or companionship at home?

What was the view of the psychological and psychiatric experts at the time?

In the nature of things one would expect a doctor to identify psychological, psychiatric and psychotic conditions such as depression and paranoid schizophrenia and other forms of mental illness and to appreciate and foresee the risk of suicide: Corr v IBC Vehicles [2008] UKHL 13, [2008] AC 884.

As it is the patient who takes his own life, an act lawful in itself, it is possible for the doctor or health authority to plead contributory negligence, but the judges are reluctant to accept the plea: Corr v IBC Vehicles [2008] UKHL 13, [2008] AC 884.

Many other people in society exercising power or authority or administrative detention or trust or responsibility for others may find themselves involved with a potentially suicidal person: the deeply unhappy spouse threatening to kill herself. The highly-strung child of parents perceived by the child to be over-ambitious and over-strict. The pupil being bullied at school, the teacher doing nothing. The student at exam time showing obvious signs of distress, the tutor doing nothing. The tenant or squatter, obviously distraught, being evicted by the bailiffs. The harassed and threatened citizen repeatedly but ineffectively complaining to the police about the antisocial neighbour and finally taking his own life. In all these cases a doctor may be involved, and he must be aware of his responsibilities.

In Rabone the estate settled the negligence claim for £7500. No reasonable psychiatric practitioner would or should have discharged or released this patient. The parents of the adult deceased had no cause of action, no remedy for negligence causing or leading to the suicide.

Right to life

In addition to the ordinary tort duty of care, the state has a duty to protect the life of the patient by virtue of the law of human rights. The Article 2 duty involves three elements, namely the negative duty not to take life, the duty to investigate and the positive duty to protect life. The duty arises where the patient is vulnerable, the doctor has assumed responsibility and control of the patient, and there is a real and immediate risk of suicide, or there is a significant, substantial, present and continuing risk. There must be a proper assessment of risk, and there must be proper preventive systems in place. Thus a situation may call for attention and support from others, medication, supervision of administration of medication, reference on to a specialist colleague or institution, observation, security. The likelihood is that the patient is severely depressed, suffering from mental health problems, psychotic, psychiatric, lacking mental capacity, compulsorily detained under the mental health legislation, or requiring to be so detained.

In the case of the detained patient with suicidal tendencies, who by definition is highly likely to be particularly vulnerable, the additional stricter right to life duty is operational, positive, preventive, obligatory and is likely to require: adequate trained staff, adequate in skill, experience and numbers. Appropriate treatment. Suitable accommodation. Tight security. Regular observation. A strict or rigid professional system of patient protection. However, a completely fail-safe system cannot be guaranteed. The system has to be professional and practical and proportionate, and have regard to the realities of resources and the needs and demands of other patients: Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74, [2009] AC 681.

A similar duty falls upon other state detaining institutions such as the police having arrested and detained a suspect, the prison service responsible for prisoners on remand or following conviction, and the armed services which the members voluntarily joined but signed up to the discipline involved. In all these cases the institution is very likely to have doctors on their staff or advising them in respect of disturbed detainees and those doctors will carry a heavy responsibility in the discharge of their duties.

The young woman in Rabone suffered serious recurrent depressive disorder, had a history of attempted suicide and represented a real and immediate risk of suicide. Although the patient was a voluntary or informal patient, not a detained patient, the breach of the right to life was established. She lacked mental capacity, she could not fully understand her condition or give informed consent. Had the patient sought to leave the hospital she should have been prevented from doing so. There is power in such circumstances, pending a permanent order, temporarily to detain a voluntary patient for up to 72 hours under the mental health legislation: Rabone v Pennine Care NHS Trust [2012] UKSC 2, taking account of the relevant Strasbourg jurisprudence.

The fact that the estate had settled the negligence claim did not preclude the right to life claim being pursued.

The bereaved parents were “victims” of the breach of the right to life by their daughter, and entitled to obtain redress by way of damages. They were awarded £5000 each, because of the closeness of the family and the serious breach of duty by the doctor and the slow response of the hospital to the complaint and the court action.