Rabone v Pennine Care NHS Trust  EWCA Civ 698
Health trusts do not have the Article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a "real and immediate" risk of death. [Caution.]
- Rabone v Pennine Care NHS Trust  EWCA Civ 698
The ICLR have kindly agreed for their WLR (D) case report to be reproduced below.
HUMAN RIGHTS — Right to life — Breach — Voluntary mental patient committing suicide after having been allowed to leave hospital when at “real and immediate risk” of death — Action against hospital trust for breach of deceased’s Convention right to life — Whether hospital trust subject to “operational” obligation to take special preventative measures to protect patient — Human Rights Act 1998, Sch 1, Pt I, art 2
Health trusts did not have an obligation to take special preventive measures to protect voluntary mental patients from the risk of suicide, even where that risk was “real and immediate”. The obligation existed in the case of persons for whom the state had assumed responsibility by their detention under the Mental Health Act 1983.
The Court of Appeal so held dismissing an appeal by the claimants, Richard Rabone (in his own right and as personal representative of the estate of Melanie Rabone deceased), and Gillian Rabone (in her own right) from a decision of Simon JM on 23 July 2009 to dismiss their claim under the Human Rights Act 1998 in respect of the death of their daughter Melanie Rabone while she was on home leave from Stepping Hill Hospital, administered by the defendant, Pennine Care NHS Trust.
JACKSON LJ said the state had no general obligation to prevent people other than those in custody from committing suicide. For example, state officials were not obliged to stop those which suicidal intent from travelling to Switzerland. In addition to the “real and immediate risk” of death, there must be some additional element before the state authorities came under the obligation to take special preventive measures to protect a particular individual in their care. Health trusts did not have that operational obligation under art 2 of the Convention for the of Protection Human Rights and Fundamental Freedoms, set out in Pt I of Sch 1 to the 1998 Act, in respect of voluntary patients, because it was not possible to separate such patients into categories and to say that the operational obligation was owed to some categories of voluntary patients, but not others. It was not and should not be the law that voluntary patients fell into different categories, some of whom (or some of whose families) could claim under art 2 but others of whom could not. The remedy for clinical negligence, even where a “real and immediate” risk of death had been disregarded, was an action for negligence. In the instant case the claimants had already obtained effective redress, in so far as the law could afford “redress” for a loss which lay beyond the reach of financial compensation. It followed that the claimants were not “victims” within art 34 of the Convention and were not entitled to pursue a claim under s 7 of the 1998 Act .
RIX and STANLEY BURNTON LJJ agreed.
B;  WLR (D) 152
CA: Rix, Stanley Burnton, Jackson LJJ: 21 June 2010
Appearances: Robert Francis QC and Nigel Poole (instructed by Pannone LLP) for the claimants; Monica Carss-Frisk QC and Jane Mulcahy (instructed by Hempsons) for the defendant Reported by: John Spencer, barrister
Supreme Court's case summary
The following is an extract from the Supreme Court's 'Case Details' page (link at bottom of page):
1. Whether Article 2 ECHR imposes an obligation on the state to take preventative operational measures to protect a voluntary mental patient against a “real and immediate” risk of suicide?
2. Whether there had been a “real and immediate” risk of death in this case?
3. Whether the Appellants, as parents of the deceased, were “victims” under Article 34 ECHR & s7(7) Human Rights Act 1998, and, if so, did they lose that status on settlement of a negligence claim brought by the First Appellant as Administrator of the Estate under the Law Reform (Miscellaneous Provisions) Act 1934 arising from the same facts?
4. Whether the s7(5) time limit for raising a Human Rights Act claim should be extended?
5. Whether, in the event the claim succeeds, the Court of Appeal was correct to have interfered with the trial judge’s quantification of damages?
Following suicide attempts, Melanie Rabone was voluntarily admitted to the Respondent’s hospital. She requested, and medical staff agreed to, a period of home leave, during which she committed suicide. The decision to agree to the request for home leave was negligent. There was a 5% risk that Melanie would commit suicide on the first day of home leave, 10% on the second day and 20% on the third. Had medical staff refused to agree to Melanie’s request, and had she insisted on leaving the hospital, she should have been assessed under the Mental Health Act 1983 and would likely have been detained. The Appellants, Melanie’s parents, claimed damages for breach of Article 2 ECHR and her father brought a claim on behalf of her estate in negligence. The parties settled the negligence claim.
Subject Matter catchwords for indexing
Human Rights; Right to life; Operational obligation to take preventative steps to protect voluntary mental patient from suicide risk; Status of relatives as victims; Effect of settlement of common law claims; Articles 2 & 34 ECHR; s7(5) & (7) Human Rights Act 1998
ICLR: Supreme Court permission to appeal. Permission to appeal given on 20/10/10
Supreme Court and Privy Council: Judicial sittings for Michaelmas term (3/10/11 - 21/12/11). This case will be heard by the Supreme Court on 7/11/11.