Richard Rabone (in his own right & as Personal Representative of the Estate of Melanie Rabone) and Gillian Rabone v Pennine Care NHS Trust (2009)

The Claimants had previously initiated proceedings against the defendant NHS Trust for negligently allowing their daughter to leave a mental health ward where she was an informal patient. She had been admitted to the ward following an attempted suicide and, at the time of her admission, it was noted that she was a high risk of suicide that she was under observation every 15 minutes and staff were advised that if she did try to leave the ward she should be assessed under the Mental Health Act 1983 [the ‘MHA’] for compulsory admission into hospital. Despite this, and without a further risk assessment, her treating consultant had agreed that she could leave the ward for two days home leave during which time she committed suicide.  The Trust did not dispute that it had acted negligently and had settled the earlier proceedings. The High Court was asked to determine whether (1) the Trust was in breach of its obligations under article 2 of the European Convention on Human Rights 1950 [ the ‘ECHR’], given the fact that she was an informal patient and not subject to compulsory admission and whether she should be treated as having been detained in hospital under the MHA: (2) If the test for real and immediate risk to life was met. (3) If there was a systematic failure by the Trust and whether this could result in a breach of article 2 of the ECHR. (4) If the Claimants were victims as defined by s.7(7) of the Human Rights Act 1998 [the ‘HRA’] and whether the time for bringing a claim under the HRA could be extended and (5) if the Claimants should be awarded damages.

The Court in considering the claim confirmed that Osman v United Kingdom (1999) had firmly established that the UK had a positive duty to protect life by taking  preventive operational measures and that this obligation arose only where it is known or ought to have been known at the time that there was ‘a real and immediate risk to life’. The Judge, in line with the ruling in R (on the application of Takoushis) v HM Coroner for Inner North London (2005), made a distinction between those patients in hospital who were detained under the Mental Health Act 1983 and those that were there informally with capacity to consent to their treatment and found that the positive obligation arose only in respect of the former category of patient. The claimants’ argued that Melanie should have been treated as if she were detained under the MHA at the time of the decision to grant leave on the basis of the earlier recommendation that she be assessed for compulsory detention should she try to leave and the level of control that she was subject to during her ‘voluntary’ admission. The Judge determined that the Trust did not owe her the positive obligation because, on the day that leave was granted, she had not been detained under the MHA, nor was she deprived of any of her convention rights as was she was not subject to complete and effective control over her care and movements (HL v United Kingdom (2005) applied). Furthermore he noted that she had, at the time, exhibited sufficient capacity to become and remain an informal patient so did not agree that she could be treated as having been compulsory admitted.

Having found that there was no positive obligation the Judge did not have to address the issue as to whether the test of ‘a real and immediate risk to life’ was met but found that on the facts of this case it was not, because although he accepted that there may have been a real risk, the information he believed the Trust had indicated that there was not an immediate risk of suicide.

The Judge accepted the evidence of the Trust that they had on place systems to identify risk and properly monitor this but that it was the failure to properly implement the policy and clinical misjudgement that had lead to Melanie’s death and as such there was no scope for a finding of a breach of article 2 against the Trust on this basis. The Judge had been asked to consider whether the actions of the Trust employees could amount to ‘serious neglience’ and if so if this could be the basis of a claim of a breach of article 2. The Judge commented:

“The test of negligence has been established over many years and is relatively easily applied in the area of health care. The concept of Gross Negligence is a similarly familiar concept in the criminal law, even if its application may sometimes be problematic. An intermediate standard of ‘serious’ negligence seems to me to introduce uncertainty into an area of the law in which certainty is to be valued. I would therefore answer the question posed by this issue: ‘serious’ negligence, if capable of proof, would not be sufficient to ground a claim under article 2.”

Although sympathetic to the parents loss the Judge did not believe that they fell within the definition of victim for the purpose of a claim under article 2(1) of the ECHR and, having concluded that there was no merit in the claim and that the Claimants had received redress, declined to exercise discretion to extend the time for making a claim under s.7(1)(b) of the HRA. Finally the Judge considered the level of any financial award which might be payable if the claim had succeeded, stressing that it “would have been a modest sum which would not in any way reflect the value of Melanie’s life; but would… recognise the breaches of Convention rights” concluded that a sum of £1,500 in the case of each Claimant would be an appropriate payment.

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