Rabone v Pennine Care NHS Foundation Trust  UKSC 2,  MHLO 6
(1) The operational obligation under Article 2 can in principle be owed to a hospital patient who is mentally ill, but who is not detained under the MHA. (2) There was a 'real and immediate' risk to the patient's life of which the Trust knew or ought to have known and which it failed to take reasonable steps to avoid, so the obligation was breached. (3) The patient's parents were 'victims' within the meaning of Article 34 of the Convention. (4) They had not lost their victim status by settling a negligence claim, as (although it had in substance acknowledged its breach) the Trust had not made adequate redress. (5) The one-year limitation period in s7(5) HRA 1998 was extended becuase the extension was short, the Trust suffered no prejudice, the claimants acted reasonably in delaying, and there was a good claim. (6) The Court of Appeal's assessment of damages was upheld, and £5000 was awarded to each parent.
- 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 — Life — Breach — Voluntary mental patient committing suicide having been allowed to leave hospital when at real and immediate risk of death — Action by parents against NHS trust for breach of patient’s Convention right to life — Whther NHS trust under positive obligation to take preventive operational measures to protect life of voluntary mental patient — Whether settlement of negligence claim depriving parents of “victim” status — Human Rights Act 1998, Sch 1, Pt I, art 2
Rabone v Pennine Care NHS Trust
B;  WLR (D) 23
SC(E): Lord Walker of Gestingthorpe, Baroness Hale of Richmond, Lord Brown of Eaton-under- Heywood, Lord Mance, Lord Dyson JJSC: 8 February 2012
A psychiatric in-patient who was known to be at real and immediate risk of suicide was owed a positive operational duty under article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms by the NHS trust to take preventative measures to safeguard her life even though she was a voluntary patient who was not detained under the Mental Health Act 1983.
The parents of a psychiatric patient who made a claim under article 2 of the Convention in respect of their daughter’s suicide did not lose their victim status by accepting a settlement on behalf of their daughter’s estate under the Law Reform (Miscellaneous Provisions) Act 1934.
The Supreme Court so held, allowing an appeal by the claimants, Richard and Gillian Rabone, from a decision of the Court of Appeal (Rix, Stanley Burnton and Jackson LJJ)B on 21 June 2010 dismissing their appeal from a decision on 23 July 2009 of Simon J at the Queen’s Bench Division in Manchester  PIQR P10 dismissing the claimants’ action against the defendant, the Pennine Care NHS Trust, under section 7 of the Human Rights Act 1998 for breach of the defendant’s positive obligation imposed by article 2 of the Convention for the Protection of Human Rights and Fundamental Freedoms to take operational measures to prevent the death by suicide of the claimants’ daughter, Melanie Rabone, on 20 April 2005.
The claimants brought an action against the defendant trust claiming damages under the 1934 Act and claiming a breach of article 2 of the Convention. The defendant admitted negligence and paid £7,500 plus costs to settle the 1934 Act claim. The article 2 claim went to trial.
LORD DYSON JSC said that the deceased hanged herself when she was on two days’ home leave from a hospital where she was undergoing treatment for a depressive disorder. She was a voluntary psychiatric patient who was not detained under the Mental Health Act 1983. She was admitted to hospital as an emergency following a suicide attempt and was assessed by the hospital as at high risk of a further suicide attempt. The claimants maintained that the hospital authorities were responsible for her tragic death because they should not have allowed her home leave. The judge and the Court of Appeal held that there was no operational duty under article 2 on the hospital authorities to take reasonable steps to guard the deceased against the risk of suicide because she was a voluntary patient. His Lordship said that the jurisprudence of the European Court of Human Rights showed that there was an operational duty under article 2 to protect persons from a real and immediate risk of suicide where they were under the control of the state. The trust owed an operational duty to the deceased to take reasonable steps to protect her from the real and immediate risk of suicide. The deceased had been admitted to hospital because she was a real suicide risk. The trust assumed responsibility for her. She was under its control. Although she was not a detained patient, if she had insisted on leaving the hospital the authorities could and should have exercised their powers under the 1983 Act to prevent her from doing so. In reality the difference between her position and that of a hypothetical detained patient was one of form, not substance. The decision to allow her home leave was one that no reasonable psychiatric practitioner would have made. The trust failed to do all that could reasonably have been expected to prevent the real and immediate risk of her suicide. By settling the 1934 negligence claim on behalf of the deceased’s estate the claimants had not renounced an article 2 claim on their own behalf for damages for non-pecuniary loss for their bereavement. The sum of £7,500 paid to the claimants under the 1934 Act was not adequate redress so that the claimants did not lose their victim status for the purposes of article 2 by accepting the settlement figure. The trust was in serious breach of article 2 and the claimants were awarded £5,000 each under article 2.
BARONESS HALE OF RICHMOND, LORD BROWN OF EATON-UNDER-HEYWOOD and LORD MANCE JJSC delivered concurring judgments.
LORD WALKER OF GESTINGTHORPE JSC agreed.
Appearances: Jenni Richards QC and Nigel Poole (instructed by Pannone LLP) for the claimants; Paul Bowen and Alison Pickup (instructed by Bindmans LLP) for INQUEST, JUSTICE, Liberty and Mind as interveners; Monica Carss-Frisk QC and Jane Mulcahy (instructed by Hempsons) for the NHS trust.
Reported by: Shirani Herbert, Barrister.
© 2012. The Incorporated Council of Law Reporting for England and Wales.
Before: Lord Walker, Lady Hale, Lord Brown, Lord Mance, Lord Dyson
Appellants: Jenni Richards QC, Nigel Poole (Instructed by Pannone LLP)
Respondent: Monica Carss-Frisk QC, Jane Mulcahy (Instructed by Hempsons)
Interveners (INQUEST, JUSTICE, Liberty and Mind): Paul Bowen and Alison Pickup (Instructed by Bindmans LLP)
- Mind, 'Supreme Court ruling welcomed by Mind and leading human rights organisations' (8/2/12): for full text and external link see Mind (Charity) page
- Matthew Hill, 'Rabone and the rights to life of voluntary mental health patients' (UK Human Rights Blog, 12/2/12)
- Kirsten Sjøvoll, 'Case Comment: Rabone & Anor v Pennine Care NHS Trust  UKSC 2' (UKSC Blog, 15/2/12)
- Neil Munro, 'Rabone v Pennine Care NHS Trust – some scattered reflections' (Mental Health and Mental Capacity Law Blog, 7/3/12). This article concludes: 'If risk averse mental health services take Rabone to heart we may be looking at a situation where all patients regardless of legal situation are subject to a very high degree of de facto control over their movements in order to avert even a small likelihood that they may leave the hospital and kill themselves.'
- Article 2 operational duty to protect right to life. George Szmukler, Genevra Richardson and Gareth Owen, '“Rabone” and Four Unresolved Problems in Mental Health Law' (2013) 37 The Psychiatrist 297 — Journal's summary: "In a landmark decision, the Supreme Court of the UK ruled that the state has a special operational duty to protect the right to life in informal psychiatric in-patients (‘Rabone case’), in sharp distinction to general medical or surgical patients. We will argue that the significance of this case is general, not just local, and that it exposes four important unresolved problems in mental health law: the place of decision-making capacity; the meaning of ‘informal’ admission; parity between mental and physical health; and the accuracy of risk assessment."