UK: In The Footsteps Of Savage – Rabone v Pennine Care NHS Foundation Trust

Last Updated: 31 July 2009
Article by Mark Barnett

Following the decision in Savage last year, there has been much debate surrounding the duties placed on healthcare providers under the Human Rights Act in respect of patients who may pose a risk of suicide. The recent decision in Rabone v Pennine Care NHS Foundation Trust has considered when such duties arise.


The claimants' daughter, Melanie, committed suicide the day after being allowed home on leave from the defendant's psychiatric hospital. She had been admitted to hospital as a voluntary patient, suffering severe depression and following suicide attempts.

A claim brought on behalf of her estate had been compromised but the Court considered the Human Rights Act 1998 (HRA) claim, in particular whether the Trust had been in breach of its obligations under article 2 of the European Convention of Human Rights.

The issues

One of the key issues considered in Rabone was whether the Trust had been in breach of its 'operational obligation' under article 2 and if not, whether she should nevertheless be regarded as being detained.

In addressing this issue, the Judge carefully considered the case of Savage v South Essex Partnership NHS Foundation Trust, in which the House of Lords held that this operational obligation arises where a particular patient presents a 'real and immediate' risk of suicide.

The claimants submitted that the reasoning in Savage did not depend upon formal detention under the Mental Health Act 1983, and in any event, as the State had assumed responsibility for Melanie's care, she was 'effectively detained'.

In rejecting these arguments, the Judge considered that in Savage, the House of Lords were drawing a distinction between those who were detained and those who were not. Significantly, he also noted that all hospitals assume responsibility for their patients, but this does not mean that the operational obligation arose in relation to all patients. The crucial factor, insofar as the operational duty is concerned, is the exercise of coercive powers over an individual who, as a result, is particularly vulnerable. The Judge added that the cases of R (Takoushis) v Inner North London Coroner and Secretary of State for Defence v Smith emphasised the importance of the distinction between those who are detained and those who are not. He clearly stated that the operational obligation is confined to the former.

Whilst the issue of whether or not Melanie was at real and immediate risk of suicide was academic in light of the Judge's finding that the operational duty did not arise, he found that in any event, she was not. He described the risk in Melanie's case as 'significant' and whilst it was real, it was not immediate.

The claimants also submitted that there was a systemic breach of article 2, an argument which the Judge rejected. There were systems for assessing and recording risks and the issue in Melanie's case was one of implementing that system and exercising clinical judgment in doing so.

A novel argument of 'serious negligence', in the sense of a collective failure to provide protection for Melanie, was also raised by the claimants. The Judge considered this to be unfounded. There are no authorities upon which to base such a test and in any event, as a point of principle, it would be inconsistent with case law that had developed, not least that of Savage.

Whilst the Judge was critical of the length of time it took the Trust to complete its Serious Untoward Incident (SUI) investigation (18 months), he rejected the argument that the State had not complied with its obligation under article 2 to investigate a death which may have been caused by a breach of that article. He was satisfied that the SUI investigation and Inquest met this duty. Interestingly, he also concluded that the SUI report was not susceptible to challenge under article 2.

The claimants' status as victims, as defined by section 7(1) HRA, was also considered by the Court. Following Powell v United Kingdom and Hay v United Kingdom, in view of the fact that the claimants had settled the claim in negligence (and so had another remedy available to them), they did not fall into the category of 'victims'. The Judge drew no conclusions on what would the status of the claimants have been, had there been no other remedy available, leaving open the possibility of future cases being brought on this issue. It is worth remembering, however, that in Savage, the House of Lords questioned the entitlement of the daughter of the deceased to bring a claim as a victim.

The Judge also considered HRA limitation in light of the fact that the Claim Form was issued 16 months after the date of Melanie's death. The HRA allows only a period of one year in which to commence an action. The Judge refused to exercise his discretion to extend time and in doing so, took into account the contents of the SUI report, the admission of negligence by the Trust and its letter of apology to the family.

So what does it all mean?

This is a significant case as it clearly limits the operational obligation as applying only to those individuals who are detained and not to patients and hospitals generally. It will also perhaps reassure Trusts that for claimants to demonstrate that the operational duty arises is more difficult than establishing 'simple' negligence – a point the House of Lords had made in Savage.

Also, the Judge's finding on whether Melanie was at a 'real and immediate' risk of suicide demonstrates that the test described in Savage is indeed difficult for claimants to satisfy. What seems clear, however, is that this test will depend upon the facts of each case.

It is also worth bearing in mind that alternative forms of redress the claimant has received will be taken into account, both in terms of the legitimacy of the claim under the HRA and in relation to limitation issues.

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.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

In association with
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.