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Protecting the Vulnerable
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Gill Edwards considers why Rabone is a landmark human rights decision.
• Rabone extends the obligations placed on the state to protect vulnerable non-detained psychiatric patients.
• Parents of adult children who have died in such circumstances now have an entitlement to damages.
Rabone & another (Appellants)v Pennine Care NHS Trust (Respondent)  UKSC 2,  All ER (D) 59 (Feb) involved Art 2 of the European Convention on Human Rights (the Convention), the most fundamental of human rights that states: “Everyone’s right to life shall be protected by law.” By extending the obligations placed on the state by Art 2 to vulnerable non-detained psychiatric patients, the Supreme Court has given such patients much needed protection. It has also provided a previously nonexistent legal remedy to parents who suffer the agony of losing an adult child in such circumstances.
Rabone: the facts
On 11 April 2005, 24-year-old Melanie Rabone agreed to voluntary admission to Stepping Hill Hospital having made repeated attempts to commit suicide while suffering from severe depression. The plan was to assess her for detention if she attempted or demanded to leave. She remained an in-patient until 19 April 2005 when, despite her parents’ reservations, she was granted home leave with her parents for two nights. The defendant trust subsequently admitted that this decision was negligent. On 20 April she killed herself.
Under the Fatal Accidents Act 1976, Melanie’s parents had no entitlement to bereavement damages and no claim for loss of dependency. Their only possible claim in their own right was for damages as victims under the Human Rights Act 1998 (HRA 1998) for breach of Art 2 of the Convention. Mr Rabone, as personal representative of Melanie’s estate, claimed under the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934) for funeral expenses and general damages for Melanie’s pre-death pain and suffering. After delays on the part of the trust in investigating their complaint, on 11 August 2006 they issued proceedings.
The operational obligation
The state has a general duty under Art 2 to protect the lives of patients. Trusts must ensure that they recruit competent staff, maintain high professional standards and put in place suitable systems of work to protect patients.
However, in certain circumstances, the state must go beyond its general duty and will be in breach of Art 2 if it does not take positive steps to protect the life of a person if they know or ought to know of a real and immediate risk to that person’s life. This has become known as the “operational obligation”.
The starting point is that ordinary medical negligence does not result in a breach of Art 2. In the case of Powell v United Kingdom (App No 45305/99), the parents of Robbie Powell alleged a breach of Art 2 after their son died following a delay in diagnosis of Addison’s Disease. The European Court of Human Rights held that as long as the state complies with its general duty to protect the lives of patients, Art 2 has not been breached.
In Osman (2000) 29 EHRR 245 it was alleged that the police had been in breach of Art 2 by failing to prevent the murder of Mr Osman, whose family had been subject to threats and harassment by a third party. The ECtHR held that there will be a breach of the operational obligation of Art 2 in “certain, well defined circumstances” 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 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”.
Following Osman, the operational obligation was also held to exist in the protection of military conscripts from suicide: (Kilinc v Turkey (App No 40145/98)); prisoners from suicide: (Keenan v United Kingdom  ECHR 242); prisoners from being harmed by other prisoners: (Edwards v United Kingdom  ECHR 303); residents of a slum engulfed in methane from a neighbouring tip: (Oneryildiz v Turkey  ECHR 657); and immigrants held in detention: (Slimani v France  ECHR 396).
In Savage v South Essex NHS Trust  UKHL 74;  1 All ER 1053, the House of Lords was asked to consider whether an NHS trust owed an operational obligation to detained mental patients at real and immediate risk of suicide. Lord Rodger stated: “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...In these circumstances Art 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under Art 2 to protect the patient’s life.”
He also stated: “Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary.”
The question of whether the same obligation would arise in respect of voluntary patients was the main issue in Rabone.
Rabone trial & Court of Appeal
Mr and Mrs Rabone argued that Melanie was just as vulnerable as a detained patient and was under the control of the state for her own protection because of her risk of suicide. However, the trust argued that
Melanie’s position was akin to that of an ordinary hospital patient and should therefore fail under Powell.
In May 2008 the negligence claim for pre-death pain, suffering and loss of amenity and funeral expenses under LR(MP)A 1934 was settled for £7,500 without admission of liability and expressly without prejudice to HRA 1998 claims. HRA 1998 claims were heard by Mr Justice Simon in Manchester in May 2009. Days before the trial the trust admitted that the decision to allow Melanie home had been negligent and wrote to Mr and Mrs Rabone with an apology. This was viewed by Mr and Mrs Rabone as a tactical move and provided them with no comfort or sense of redress.
The trial judge found there was no Art 2 obligation and the Court of Appeal agreed, Lord Jackson drawing a line in the sand between detained and non-detained patients, the latter being akin to an ordinary hospital patient at risk due to heart surgery for example.
The Court of Appeal also held that Mr and Mrs Rabone would have been victims for the purposes of the HRA 1998 claim but in all the circumstances, ie settlement of the LR(MP)A 1934 claim and the admission and apology, they had obtained effective redress and therefore forfeited their victim status.
The Supreme Court
The family secured permission to appeal to the Supreme Court. Mind, Liberty, Inquest, and Justice obtained permission to intervene, providing evidence to illustrate that in many cases the circumstances under which a patient is formally detained are virtually indistinguishable from those in which another patient is held informally.
In their judgment handed down on 8 February 2012, the five justices unanimously held that the operational duty was owed to Melanie and that it had been breached.
Lord Dyson, giving the lead judgment, found that, in reality, the difference between her position and that of a hypothetical detained psychiatric patient would have been one of form, not substance and he described this as “a bad case of breach of the Art 2 duty”. Melanie had been admitted to hospital because she was at real risk of suicide; she was extremely vulnerable. The trust had assumed responsibility for her; she was under its control. Such patients are not akin to the ordinary patient who undergoes heart surgery, because that patient has accepted the risk of death on the basis of informed consent and may choose to avoid that risk by deciding not to go ahead with the treatment.
The Supreme Court also held that Mr and Mrs Rabone had not forfeited their victim status as the settlement had been for Melanie’s estate and not for their own suffering. They were awarded £5,000 each.
The implications of Rabone
Concern has been expressed that the case may lead to an increase in detention of psychiatric patients, but if a patient no longer needs to be formally detained to benefit from the protection of Art 2 that would seem illogical.
Families of non-detained patients will now be entitled to ask for a more detailed inquest. After the Court of Appeal’s decision, defendant firms were advising that the ruling would “counter attempts to use the extended form Art 2 inquests where patients who are not formally detained die in hospital.” This is no longer the case.
The decision may open the door to human rights claims for other vulnerable patients, such as those suffering with dementia, learning difficulties, or subject to deprivation of liberty safeguards. The Supreme Court has made it clear that cases will be considered incrementally on a case-by-case basis while the jurisprudence on Art 2 develops.
Parents of adult children who have died in such circumstances now have an entitlement to damages. Perhaps more cases will be pursued as a result: previously the cost of doing so often outweighed the benefit, despite the desire of parents to vindicate their child’s death and get to the truth. The judgment also hints that there may be scope for higher awards of damages.
Defendant solicitors have issued practical advice to general practitioners and trusts in light of Rabone. They recommend proper risk assessment and adequate safeguards; clear, thorough and robust written
assessment of risks updated whenever key decisions are made, with care planning and a management plan for each risk; and multidisciplinary decision making around key decisions.
The judgment in Rabone has shed a welcome light on the plight of mental health patients. Let’s hope that, together with the invaluable work of the mental health charities such as Mind, it goes some way to improving the care given to people who find themselves in such a situation.
Mr and Mrs Rabone have achieved a great deal for psychiatric patients. The main regret they have expressed is that they cannot tell Melanie.
This article was first published in NLJ (www.newlawjournal.co.uk), “Legal Update Specialist”, NLJ, 30 March 2012, page 446.