Rabone & Anor v Pennine Care NHS Trust

Article 2 does not generally impose an operational obligation on a health trust towards voluntary hospital patients, even where there is a real and immediate risk to life. Detention by the state is an additional element that can trigger the obligation. If the obligation applies, the authority must have known, or ought to have known, of the risk and must have failed to take measures reasonably expected to avoid it. Relatives may qualify as victims, but effective domestic redress can remove that status. An admitted breach of clinical duty, an apology and a settlement may together constitute effective redress. The appeal was dismissed, and permission to appeal on the investigatory issue was refused.

Richard and Gillian Rabone claimed against an NHS trust following the suicide of their adult daughter, Melanie, while she was on home leave from a psychiatric ward. The negligence claim brought for Melanie’s estate was settled, but claims under the Human Rights Act 1998 continued. Mr Justice Simon dismissed those claims, holding that Melanie was a voluntary patient, that no operational obligation arose under article 2, that the investigatory obligation was satisfied, and that the parents lacked victim status. He also refused an extension of time and assessed damages at £1,500 each if liability had been established. The appeal concerned those rulings and the central question whether a voluntary mental health patient attracts an article 2 operational obligation.

1. The Court of Appeal dismissed the appeal. Lord Justice Jackson gave the judgment, with Lord Justice Rix and Lord Justice Stanley Burnton agreeing. The renewed application for permission to appeal on the investigatory ground was refused.

2. Article 2 imposes an operational obligation only in defined circumstances. A real and immediate risk to life is insufficient by itself. The authorities must also have assumed a particular responsibility for the individual, such as through state detention. Applying Powell v UK (2000) 30 EHRR CD 362, Savage v South Essex NHS Trust [2008] UKHL 74 and Mitchell v Glasgow City Council [2009] UKHL 11, the court held that detention under section 3 of the Mental Health Act 1983 made a critical difference. Melanie was a voluntary patient and could not be treated as detained merely because she might have been detained in different circumstances. The trust therefore owed her no operational obligation.

3. Alternatively, if an operational obligation had existed, it would have been breached. The Osman test required knowledge, actual or constructive, of a real and immediate risk and failure to do what could reasonably be expected to avoid it. The risk during the two-day leave period was real and immediate despite being below 50 per cent. Refusing leave was an obvious preventive measure.

4. The court refused permission on the investigatory ground. Article 2 requires a practical and effective official investigation where the obligation arises, but does not require a separate investigation in every arguable medical-negligence case. The inquest, serious untoward incident investigation and civil proceedings had exposed the relevant circumstances, and no further investigation would have added anything material.

5. Relatives can be victims for article 34 purposes. However, the court must examine whether domestic proceedings concerning the same conduct have provided effective redress. Relevant considerations include acceptance or proof of liability and the adequacy of compensation. Here the trust had admitted negligence, apologised and paid £7,500 plus costs, including £5,000 general damages to the estate. In the circumstances, the parents had already received effective redress and were not victims entitled to proceed under section 7 of the Human Rights Act 1998.

6. The limitation and quantum grounds were addressed only hypothetically. The court agreed that time should not be extended for a claim doomed to fail, but indicated that it would otherwise have been inclined to extend time. It also considered £10,000 in total a more appropriate nominal award than £3,000.

1. Court of Appeal (Civil Division): dismissed the appeal and refused the renewed application for permission on the investigatory ground.
2. High Court, Queen’s Bench Division, Manchester District Registry: Mr Justice Simon dismissed the Human Rights Act claims in a judgment dated 23 July 2009. No citation for that judgment was stated.