Richard Rabone (in his own right & as Personal Representative of the Estate of Melanie Rabone) and Gillian Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698

This was an appeal against the earlier decision by the High Court  that the failure to prevent the death of Melanie Rabone did not amount to a breach of article 2 of the ECHR. The appeal was made on the basis that the judge erred in concluding that the NHS Trust did not have an operational obligation under ECHR article 2. They also sought to argue that the risk to Melanie’s life was “immediate” on 19.04.05 and as such the judge should have determined that there was a breach of the operational obligation under ECHR article 2. They believed that the judge was wrong also to hold that there was no breach of the investigatory obligation under ECHR article 2 and that the claimants did not have victim status for the purposes of the Human Rights Act. The judge’s refusal to exercise his discretion to extend time under section 7(5) of the Human Rights Act was, they claimed, perverse. Finally the award of £1,500 for each of the claimants, in the event they succeeded on their human rights claims, was too low.

Jackson LJ in his judgment considered the nature of the ‘operational obligation’ which arose under article 2 of the ECHR, concluding that, in line with the judgment in Osman, such an obligation arose ‘in well defined circumstances’ when an applicant could “show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge”. Jackson LJ went on to then consider whether the circumstances of this case fell within the ‘well defined circumstances’ referred to in Osman. He concluded that “on the law as it stands, I do not believe that health trusts 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. In my view it is not possible to separate such patients into categories and to say that the operational obligation is owed to some categories of voluntary patients, but not others.  A patient undergoing major heart surgery may be at just as great a risk of death as a schizophrenic patient with suicidal ideation. It is important for court users (patients, NHS trusts, legal advisers and others) that legal obligations and liabilities should be clearly defined and understood.  I do not believe that it either is or should be the law that voluntary patients fall into different categories, some of whom (or some of whose families) can claim under article 2 but others of whom cannot.  The remedy for clinical negligence, even where a “real and immediate” risk of death has been disregarded, is an action in negligence.” As Melanie was a volunatary patient on the day she was permitted to leave the hospital, no duty arose.

Despite finding that there was no operational obligation, Jackson LJ went on to consider whether the risk to her life was real and immediate. On the evidence of Dr Caplan there was a risk that she would have committed suicide and he estimated that the risk should have been assessed on 19.04.05 as 5% rising to 10% on 20.04.05 and to 20% on 21.04.05. Jackson LJ rejected the argument of the defendant that for risk to be real it needed to amount to a likelihood. He commented that despite being less that 50% such a risk was “in every sense ‘real’.” He was also satisfied that the immediate test was made out given that the period in question was for the two days of proposed home leave. Finally he commented that the hospital had not done everything that could be expected of them to avoid the risk as “there was a simple and obvious way to prevent that risk eventuating, namely to refuse Melanie’s request for home leave.” He concluded that had there been an operational obligation owed towards Melanie the hospital would have been in breach of this and the appellants would have succeeded on their second ground for appeal, but as there wasn’t an operational obligation they could not succeed on this ground.

On the matter of whether there had been a failure to properly investigate the death the Court of Appeal refused to renew permission for an appeal; the death had been fully investigated and the argument put forward by the appellant offered no real grounds for challenging the earlier decision to refuse this ground for appeal.

In respect of their status as ‘victims’ under the HRA, the judgment concluded that there was sufficient legal authority to determine that parents could be considered victims under the HRA, but then went on to consider whether the parents may have forfeited their status as victims as a consequence of taking out and settling parallel civil litigation for negligence. Following a detailed review of the Strasbourg jurisprudence Jackson LJ concluded that:

“(i)  Where the applicant brings a claim in his domestic courts in respect of matters which form the basis of his Convention claim and succeeds, that success may deprive him of the status of victim under article 34.

(ii)  In order to ascertain whether the settlement or the award of the domestic court has that consequence, it is necessary to consider all the circumstances of the domestic litigation and to determine whether it affords effective redress for the Convention breach.

(iii)  In particular, it is necessary to consider (a) whether liability for the offending conduct has been either accepted by the state authority or found proved by the court and (b) the adequacy of any compensation awarded by the domestic court.  If the compensation awarded falls substantially short of the pecuniary losses suffered by the applicant, that is a factor pointing against treating the domestic award as effective redress.”
Applying this to the facts of this case the Judge determined that the appellants had obtained effective redress, in so far as the law could afford redress for a loss which lay beyond the reach of financial compensation. They were therefore not entitled to pursue a claim under s.7 of the 1998 Act.

Finally he refused to extend the time as the appeal was doomed to fail, but did agree that the figure which had been proposed, had the appeal been successful was too low, suggesting that instead a figure of £10,000 (£5,000 for ach appellant) would be more in line with the awards given in the Strasbourg Court.

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