UK: Rabone No 2

Last Updated: 1 August 2012
Article by Sian Fisher

This case was reviewed in previous editions of Health Law News. We reported that the Court of Appeal's conclusion that NHS Trusts did not owe a positive obligation to safeguard the lives of voluntary patients, must provide some comfort to increasingly beleaguered NHS Trusts. Unfortunately, that comfort proved somewhat illusory as the Supreme Court has now reversed that decision. In this article, we examine the implications for all NHS Trusts of this important judgment.

The facts

The background of the case will be familiar, but by way of reminder, the deceased, Melanie Rabone, was admitted to Stepping Hill Hospital on a voluntary basis following a severe episode of a recurrent depressive disorder. Despite objections raised by her parents, the claimants to the action, the deceased was allowed home leave, during which time she committed suicide.

Procedural position

A claim for negligence was compromised in the sum of Ł7,500, but the claimants also brought a claim for damages pursuant to the Human Rights Act 1998, alleging breach of Article 2, the right to life. Furthermore, they argued that they were victims of the breach, and were therefore entitled to compensation. The claim failed both at first instance and on appeal; although it was found on the facts of the case that had an operational obligation been owed it would have been breached. The claimants appealed to the Supreme Court, and here, they were successful.

Supreme Court ruling

In the leading judgment, Lord Dyson held the Trust was under a positive duty to safeguard the life of the deceased. Although a voluntary patient, the deceased was vulnerable and posed a real suicide risk; she was under the control of the Trust which had assumed responsibility for her.

Having thus established an operational obligation was owed, it came as little surprise that the Supreme Court found it had been breached. This was, after all, the conclusion previously reached by the Court of Appeal. Previous cases had established that the risk of death had to be 'real and immediate'. The evidence of the psychiatrist who gave evidence for the Trust, and whose evidence was preferred at first instance, described a risk of suicide as between 5-10%. This was accepted both in the Court of Appeal and by Lord Dyson as reflecting a 'real' risk of suicide, thus satisfying the first qualifying limb. The Trust's argument that the risk had to be 'imminent' was rejected, with Lord Dyson preferring to interpret 'immediate' to mean 'present and continuing'. Having reached the conclusion that the risk of the deceased attempting suicide was real and immediate, the decision to allow her home was described as one which 'no reasonable psychiatric practitioner would have made'. Breach was established.

The question of whether the claimants enjoyed victim status within Article 34 of the European Convention on Human Rights was dealt with in short order. Lord Dyson was able to point to a clear line of European Court of Human Rights decisions which provided that relatives of the deceased were able to claim in their own right.

Finally, the Supreme Court was required to consider whether the claimants would forfeit that status if they had already been awarded compensation in a negligence claim. The parties accepted that victim status would have been forfeited if the State has provided 'adequate redress', and 'acknowledged either expressly or in substance the breach of the Convention'. The Trust argued that both conditions had been met, and therefore the claimants were not entitled to further compensation.

That argument was rejected by the Supreme Court. The damages paid to the claimants in the civil claim were in respect of losses to the Estate under the Law Reform (Miscellaneous Provisions) Act 1934. The claimants had received no compensation for their loss as the Fatal Accidents Act 1976 did not permit parents of an adult child to make such a claim. Thus, they had not received 'adequate redress'. However, the Supreme Court did go on to find that although the claimants retained their status as victims as a result, the fact the Trust admitted breach of duty was evidence of an admission of breach of Article 2.

Keep calm and carry on!

Whilst there is no doubt this is an unwelcome judgment, the important point to remember is that it does not impose additional burdens on treating clinicians; who remain under a duty to provide reasonable care to their patients. What it does mean is, if that duty is breached, then the consequences of that breach so far as a Trust is concerned are potentially greater, depending on the facts of the case. If the case involves a psychiatric patient, whether detained or not, then breach of duty of care will also invoke the operational obligations of Article 2, which could mean payment of compensation in addition to an award of damages in a civil claim.

Whether the operational duty will be imposed only in cases of psychiatric patients is unclear. Lady Hale did emphasise that, in deciding the case in favour of the claimants, the Supreme Court was not attempting to make "an exception to the general rule that the State is not responsible for the deaths of hospital patients". However, given the parents of adult children have no means of seeking redress for their loss, claimant lawyers will doubtless redouble their efforts to persuade her otherwise.

A more immediate practical effect may be seen in the realm of inquests. While it has been reasonably settled ground that investigations into the death of a compulsorily detained mental health patient would be subject to the wider Article 2 investigations, the position regarding informal patients has often been the subject of some discussion. Similarly, there was uncertainty regarding the status of investigations where a mental health patient dies in an acute setting (e.g. suicide after admission to CDU). The thrust of the Supreme Court's decision now suggests that in the presence of a real and immediate risk of suicide and where the patient has been admitted under the care of an NHS Trust, the wider investigation responsibilities may well be triggered. In truth, however, it is our experience that even prior to the Supreme Court's decision coroners were inclined to act as if Article 2 was engaged – to that extent, therefore, there may be no practical difference in coronial practice.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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