Supreme Court decision on Rabone v Pennine Care NHS Trust

On 8 February 2012, The Supreme Court determined that the NHS must protect all psychiatric patients who are in hospital, or on leave, and who are at “real and immediate risk” of suicide.  The case of Rabone v Pennine Care NHS Trust[1] examined whether Article 2 of the European Convention on Human Rights (ECHR) was engaged in the context of a death of a patient who was admitted to hospital voluntarily for her mental health problems rather than being detained under the Mental Health Act.  The Supreme Court also considered whether her parents could claim to be victims of a failure by the State to protect her right to life. Hempsons acted for the NHSLA and NHS Trust.

Impact

This complicated judgment needs careful consideration and we will be working with our clients to consider the implications.  However some early practical points are: 

  • It underlines the importance of decisions about leave being taken on a multi-disciplinary basis including, where possible, the active agreement of those who will be involved with the patient outside hospital.
  • Clear, reasoned and recorded risk management assessments are critical, whether the service user is in or out of hospital.
  • Inquests in to the deaths of mental health service users are likely to have an expanded scope in future.
  • Despite the judgment we suggest an over cautious approach to risk should be avoided as much as an over optimistic one.  Know the patient; consider the options; record the reasoning.

In April 2005, Melanie Rabone committed suicide. She had voluntarily been admitted to hospital in early March 2005 following a failed suicide attempt and was diagnosed as suffering from a severe episode of recurrent depressive disorder.   She made two further attempts to commit suicide whilst being treated and was assessed a moderate to high suicide risk. Following her request for home leave, it was agreed that she be given two day leave at a ward round with members of her family present.  On the second day of her leave, she took her own life.

The NHS Trust settled the civil negligence claim in 2008 but her parents pursued a claim for breach of the operational duty under Article 2 of the ECHR and its positive duty to protect life.  They were unsuccessful in the High Court and the Court of Appeal but the Supreme Court found unanimously in their favour on the following issues:

  • The NHS had a positive duty to protect Melanie Rabone’s life under Article 2 of the ECHR against the risk of suicide of psychiatric patients (“the operational duty”).  While there were differences between detained and voluntary psychiatric patients, these should not be exaggerated. 
  • The Trust assumed responsibility for Melanie Rabone and she was under its control.   By reason of her mental state, she was extremely vulnerable and the Trust owed an operational duty to take reasonable steps to protect her from the real and immediate risk of suicide. 
  • The risk of suicide was ‘real and immediate’ and satisfied the test for Article 2. Two expert psychiatrists in the clinical negligence action had agreed that it was negligent to allow her home and she required protection from the risk of suicide.
  • Melanie’s parents were victims under the ECHR and their victim status was not lost as a result of the settlement of the clinical negligence action.  The Fatal Accident Act did not provide bereavement damages for the parents of an adult child and consequently, their claim under Article 2 had not been satisfied. 

Mr and Mrs Rabone were awarded £5000 each in recognition of the breach of the operational duty under Article 2.

Comment

This case follows and extends the rationale established in Savage v South Essex Partnership NHS Foundation Trust [2009] AC 681 which confirmed that the Article 2 operational duty applies to patients detained under the Mental Health Act. Other cases have established that the State must to a  great extent protect the life of those for whom it assumes responsibility in circumstances where there is an immediate risk to life.  These include people who are in prisons, conscripts to the armed forces and those who are compulsorily  detained under the Mental Health Act.  The reason is that these people are deprived of their freedom by the State.  The Court believed that Melanie Rabone’s position was closely analogous to that of a detained patient, because of the potential use of Mental Health Act holding powers if she had attempted to leave without the agreement of those treating her.

The Supreme Court draws distinctions between voluntary psychiatric patients and patients suffering from physical illness or injury on the basis of informed consent and autonomy and the lack of powers to detain.  It does not expand upon this in detail nor does it provide an account of what is required to satisfy “a real and immediate risk”. On the facts, the Justices said that the risk continued whilst Melanie was on leave and that the decision to allow the leave was not one that a reasonable psychiatrist would have made.  The importance of the accurate, written risk assessment is once again highlighted by this case along with the rationale of any particular clinical decision.  The Supreme Court did not consider the question of whether mental health units will be required to pursue a more conservative policy in terms of refusing to allow informal patients to leave hospital in the presence of risk.

The decision is likely to lead to more human rights claims and to have a knock-on effect in extending the scope of inquests involving voluntary mental health patients.

We will be working with mental healthcare providers on the practical implications of this decision.