Rabone v Pennine Care NHS Foundation Trust

The Supreme Court held that the article 2 operational duty to protect life can, in principle, be owed to a psychiatric patient who is an informal (non‑detained) in‑patient where the state has in practice assumed responsibility and control and there is a real and immediate risk to life. The court concluded that the Trust owed such a duty to Melanie Rabone and that, on the facts, there was a real and immediate risk of suicide when she was granted two days' home leave on 19 April 2005 and the Trust breached the operational duty by permitting the leave without taking reasonable steps to avoid that risk. The claimants were held to be victims within the meaning of article 34; a prior settlement of a civil negligence claim on behalf of the estate did not of itself deprive the parents of victim status because it did not provide adequate redress for their non‑pecuniary bereavement losses. The court extended time under section 7(5)(b) of the Human Rights Act 1998 and awarded modest non‑pecuniary damages (£5,000 each) for breach of article 2.

This case concerned proceedings by Mr and Mrs Rabone after their adult daughter, Melanie, an informal psychiatric in‑patient at Stepping Hill Hospital, hanged herself while on two days' home leave granted by the Trust. The estate claim in negligence (Law Reform (Miscellaneous Provisions) Act 1934) was settled; the parents pursued damages under article 2 of the European Convention (via the Human Rights Act 1998) for the Trust's alleged failure to protect Melanie's right to life.

The principal legal questions identified by the Supreme Court were:

• whether the article 2 "operational" obligation can in principle be owed to an informal psychiatric patient who is not detained under the Mental Health Act 1983;
• whether on 19 April 2005 there was a "real and immediate" risk of suicide of which the Trust knew or ought to have known and whether reasonable steps were taken to avoid it;
• whether the parents were "victims" for the purposes of article 34 and section 7 of the Human Rights Act 1998, and whether they lost victim status by reason of the earlier settlement and any acknowledgment by the Trust;
• whether the article 2 claims were time‑barred under section 7(5) of the HRA;
• the appropriate measure of damages for non‑pecuniary loss if liability under article 2 were established.

The court reasoned that Strasbourg jurisprudence identifies several indicia for the operational duty: assumption of responsibility/control by the state, the vulnerability of the individual, and the exceptional nature of the risk. Those indicia placed an informal psychiatric patient like Melanie closer to a detained psychiatric patient than to a routine medical patient; the Trust had effectively assumed responsibility and control and could have detained her under the Mental Health Act had she sought to leave. The risk of suicide when she was allowed home was found to be "real and immediate" (present and continuing) and the decision to permit two days' leave without adequate protective steps was one that no reasonable psychiatric practitioner would have made. On victim status the court held that relatives may be victims in their own right for article 2 substantive breaches; a settlement of a civil claim for the estate will not automatically extinguish a family member's Convention claim where the settlement did not provide adequate redress for the personal non‑pecuniary loss. The court granted an extension of time under section 7(5)(b) HRA and, applying Convention authorities on awards for non‑pecuniary loss, assessed compensation at £5,000 each.

Appeal allowed. The Supreme Court held that the article 2 operational duty can extend to an informal psychiatric in‑patient where the state has assumed responsibility and control and there is a real and immediate risk to life; on the facts the Trust breached that duty by allowing two days' home leave to Melanie Rabone despite a real and immediate risk of suicide. The claimants remained victims despite the estate settlement because the settlement did not provide adequate redress for their own non‑pecuniary loss. Time was extended under section 7(5)(b) HRA and damages of £5,000 each were awarded.

First instance: Simon J (High Court) held there was no article 2 operational duty and dismissed the article 2 claim: [2010] EWHC 1827. Court of Appeal (Rix, Stanley‑Burnton and Jackson LJJ) dismissed the appeal and agreed there was no operational duty but held that if there had been a duty it would have been breached: [2010] EWCA Civ 698 (reported [2011] QB 1019). The appellants succeeded on appeal to the Supreme Court: [2012] UKSC 2.