Rabone and another v Pennine Care NHS Foundation Trust

Article 2 may require a hospital to protect an informal psychiatric patient from suicide. The duty arises where the hospital has assumed responsibility and control, the patient is especially vulnerable, and staff know or ought to know of a real and immediate risk to life.

A real risk is substantial or significant, rather than remote or fanciful. An immediate risk is present and continuing. The hospital must take measures within its powers which, judged reasonably, might avert that risk, while respecting the patient’s autonomy.

Close family members may be victims of a breach of the substantive right to life. They retain that status unless the state both acknowledges the breach and provides adequate redress. Compensation paid only to the deceased’s estate does not necessarily redress the relatives’ distinct non-pecuniary loss.

Melanie Rabone was admitted to hospital as an informal psychiatric patient after repeated suicide attempts. The hospital assessed her as presenting a serious suicide risk, but granted her two days’ home leave despite her parents’ concerns. She took her life the following day. The trust admitted negligence and settled the estate’s claim under the Law Reform (Miscellaneous Provisions) Act 1934, but denied liability under article 2 of the Convention.

Simon J dismissed her parents’ human-rights claim in [2010] EWHC 1827. He held that the article 2 operational duty did not apply to an informal patient and that, even if it did, the trust had not breached it. The Court of Appeal dismissed the appeal in [2010] EWCA Civ 698, reported at [2011] QB 1019. It agreed that no operational duty arose, although it held that the trust would otherwise have breached that duty.

The principal questions were whether the operational duty could protect an informal psychiatric patient; whether a real and immediate suicide risk existed and reasonable precautions had been omitted; whether the parents were victims; whether settlement, limitation or acknowledgment barred their claims; and what damages were appropriate.

Appeal allowed unanimously. Lord Dyson gave the leading judgment, with which all members of the court agreed. The trust had violated article 2, and each parent was awarded £5,000.

1. The operational duty under article 2 was capable of protecting an informal psychiatric patient. Relevant indicia included the hospital’s assumption of responsibility, its practical control over the patient, her exceptional vulnerability and the nature of the risk. Melanie had been admitted precisely because she required protection from suicide. Although not formally detained, she could and should have been detained under the Mental Health Act 1983 had she attempted to leave. Her position was therefore much closer to that of a detained psychiatric patient than to that of an autonomous patient receiving ordinary physical treatment. The casual clinical negligence addressed in Powell v United Kingdom (2000) 30 EHRR CD 362 was distinguishable.

2. The Osman v United Kingdom (2000) 29 EHRR 245 standard applied. The authorities must know or ought to know of a real and immediate risk to an identified person and fail to take measures within their powers which, judged reasonably, might avoid it. A real risk is substantial or significant, not remote or fanciful. An immediate risk is present and continuing; it need not become apparent only shortly before death.

3. The suicide risk was real and immediate. It existed when home leave began and continued, with increasing intensity, throughout the proposed leave. The trust knew or ought to have known of it. Reasonableness required attention to the circumstances, available resources, the ease of precautions and the patient’s autonomy. Refusing leave was a simple precaution, and no reasonable psychiatrist would have granted it. The trust therefore failed to do all that could reasonably have been expected.

4. The parents were victims for the purposes of article 34. Close relatives may bring claims concerning both the investigative and substantive obligations under article 2. Lord Scott’s contrary observations in Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 were disapproved.

5. Victim status is lost only where the authority has both adequately redressed and acknowledged the Convention breach. Settlement of the estate’s negligence claim did not renounce the parents’ distinct claims for bereavement. No compensation had been paid for their personal non-pecuniary loss, so adequate redress had not been provided. It was unnecessary to decide acknowledgment, although Lord Dyson would have held that the admission and apology acknowledged the breach in substance.

6. The discretion under section 7(5)(b) of the Human Rights Act 1998 was exercised afresh. The short delay was reasonably explained by the trust’s protracted investigation, caused no evidential prejudice and concerned a meritorious claim. Time was extended. Damages of £5,000 for each parent were necessary to afford just satisfaction, given the close family relationship, the serious breach and the particularly distressing circumstances.

1. United Kingdom Supreme Court: Allowed the appeal unanimously from [2010] EWCA Civ 698, held that the trust had breached article 2, extended time and awarded each appellant £5,000.
2. Court of Appeal: Dismissed the appeal in [2010] EWCA Civ 698, reported at [2011] QB 1019. It held that no operational duty arose, but that the trust would have breached such a duty and that £5,000 for each parent would have been appropriate.
3. High Court: Simon J dismissed the claim in [2010] EWHC 1827. He held that no operational duty arose and that, alternatively, it had not been breached. He refused to extend time and would have assessed damages at £1,500 for each parent.