Text:ICLR Rabone v Pennine Care NHS Trust  EWCA Civ 698
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.
M;  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