Rabone & Anor v Pennine Care NHS Trust

Article 2’s operational obligation to protect life applies to mental patients who are compulsorily detained and subject to coercive state control. It does not ordinarily apply to voluntary patients who retain capacity and can leave or consent to treatment, even where the hospital has assumed responsibility for their care.

The Osman test requires a known or reasonably knowable real and immediate risk to life and reasonable preventive measures. It must be applied without hindsight and with regard to personal autonomy and proportionality. Ordinary negligence, including serious or collective negligence, does not become an Article 2 breach without a recognised Convention obligation. A settled civil claim may also affect victim status under the Human Rights Act 1998.

Melanie Rabone, aged 24, was admitted informally to hospital following suicide attempts and severe depression. On 19 April 2005, despite concerns about her condition, she was permitted two days’ home leave. She died by suicide the following day.

The Trust admitted that allowing home leave was negligent. The claimants, Melanie’s parents, pursued claims under section 7 of the Human Rights Act 1998, alleging operational and systemic breaches of Article 2, an inadequate investigation, and related issues concerning victim status, limitation and remedy. Their civil claim under the Law Reform (Miscellaneous Provisions) Act 1934 had been settled. The central issues included whether an operational Article 2 duty applied to an informal patient and whether the claimants could pursue the Convention claims.

1. Operational obligation. The operational obligation under Article 2 is additional to the general obligation to establish competent staff and protective systems. Following Savage v South Essex NHS Trust [2008] UKHL 74, it applies to mental patients who are detained and whose vulnerability results in part from coercive state control. Melanie was an informal patient on 19 April 2005. She had capacity to consent or object to treatment and was not subject to complete and effective control over her care and movements. The operational obligation therefore did not arise.
2. Risk and negligence. The Osman v United Kingdom (2000) 29 EHRR 245 test requires a real and immediate risk to life of which the authorities knew or ought to have known, followed by reasonable measures within their powers. The test must be applied by reference to circumstances as they appeared at the time, without hindsight. Even on the alternative hypothesis that the operational duty applied, the risk was real but not immediate, and the proposed measures had to respect personal autonomy. The admitted negligent decision did not establish an Article 2 breach.
3. Systemic obligation. The Trust had a system for assessing suicide risk. The failure was in implementing and documenting that system, together with clinical misjudgment, rather than a failure to provide a protective system. There was no systemic breach.
4. Serious negligence. There was no legal basis for an intermediate standard of “serious negligence” between ordinary and gross negligence. The proposed test was uncertain, impractical and inconsistent with Powell v United Kingdom [2000] 30 EHRR CD 362 and Savage.
5. Investigation. The Trust was not under an Article 2 duty to provide staff statements or medical records to the Coroner. The Inquest, Serious Untoward Incident investigation and available proceedings provided an effective investigative framework. The investigation took too long and differences in recollection or opinion should have been recorded, but there was no actionable breach.
6. Victim status and limitation. Victim status is broader for investigative obligations than for substantive Article 2 obligations. Settlement of a civil claim is not an absolute bar, but the circumstances must be examined. Here, settlement, the Trust’s admission of negligence and its apology meant that the claimants were no longer victims for Article 34 purposes. The court also declined to extend the one-year limitation period under section 7(5) of the Human Rights Act 1998, principally because the substantive claims lacked merit.
7. Disposition. The claim failed. Judgment was entered for the Trust.