This was the finding of the court in the recently decided case of Rabone v Pennine Care NHS Trust which can be accessed here.

The case involves a woman who was a voluntary patient at the defendant trust. She was a significant suicide risk and had made several recent attempts to take her own life. The doctor decided that she could go on “home-leave”. Whilst she was away from the hospital the woman went off on her own and killed herself. In a separate action it had already been decided that this decision was negligent and an internal SUI report was highly critical. The coroner returned a verdict of suicide.

The parents of the woman claimed the defendant trust had acted in a way that was incompatible with its obligations to protect life under the Human Rights Act (Article 2 – the “right to life”).

The case looked at a number of issues, but on this point, the court decided that while hospitals assumed responsibility for the safety and treatment of patients, that did not mean that the obligation under Article 2 arose in relation to all patients. The operational obligation to protect patients who pose a risk of suicide was confined to mental health patients who were detained under “section” and was not applicable to those who were not so detained. The important point is the exercise of control over a patient as a result of which they are particularly vulnerable. Subject to the use of powers under the Mental Health Act 1983 (MHA), voluntary mental health patients could leave hospital when they wished. They were not deprived of any Convention right and had input in their own medical treatment.

Furthermore, the deceased in this case was not subject to complete and effective control over her care and movements and she had acquired the capacity to become and remain an informal patient.

In addition, the court decided that serious negligence (as had been admitted in this case as far as the doctor’s decision to permit leave was concerned), would not be sufficient to support a claim under Article 2.

This case needs to be contrasted with the case of Savage, a Mills & Reeve briefing on that case can be accessed here. In that case it was unclear whether this obligation was being extended to informal as well as formal patients detained under the MHA.

Although this case attempts to draw “a line in the sand” we would caution that Savage was decided by the House of Lords and therefore is of greater legal persuasion.