Rabone v Pennine Care NHS Foundation Trust 08.02.12
The Supreme Court rules that the Defendant Trust was in breach of article 2 of the European Convention on Human Rights (ECHR) where a mental health patient killed herself whilst on home release from a psychiatric unit.
By limiting the operational duty to mental health patients (whether detained or informal patients), the Supreme Court has drawn a clear distinction between psychiatric cases and those cases concerned with the general hospital context. Only psychiatric cases will potentially give rise to a breach of article 2.
This case highlights the importance of the treating psychiatrist’s consideration of a risk of suicide, which if "real and immediate", will warrant sufficient protection of the patient.
By extending the protective cloak of NHS Trusts to informal patients, treating clinicians will be more reluctant to risk their patients leaving their watch for fear of what harm they may come to. However, the fact the test is for a real and immediate risk means there should not be much change in clinical practice. Any informal mental health patient who exhibits a real and immediate risk of suicide is someone that should be protected and, if they intend to self discharge, consideration would always be given to a formal detention anyway.
What this case may create though is a culture where clinicians wish to avoid the risk of waiting until the last minute before detaining their patients. Given that it is easier to 'control' a patient who is formally detained than one who is free to come and go as they please, there is likely to be more pressure on clinicians to formally detain patients for their own safety when they might have been informally detained previously. Clinicians though should of course continue to treat each patient as clinically appropriate on a case by case basis.
This is an undesirable outcome, which could increase the numbers of detained patients, putting undue pressure on NHS resources and increasing the already considerable stress and stigma felt by this vulnerable group of patients.
Repercussions are also likely to be seen in inquests. Coroners will be asked to make a finding of "real and immediate" risk in verdicts of suicide of mental health patients, in anticipation of a future claim. Coroner’s Courts are likely to face increased numbers of article 2 inquests putting pressure on Coroners to summon juries more frequently.
With Lord Dyson delivering the leading judgment, the Court held as follows:
- Operational duty - the Defendant Trust owed an operational duty to protect the patient’s life under article 2 of the ECHR.
- Risk of suicide - there was a real risk that the patient would take her life when allowed home.
- Claimant status: the effect of settlement - the patient’s parents were victims within the meaning of the ECHR.
- Extension of time - the claim was not time barred and it was appropriate to exercise the Court’s discretion.
- Quantum of damages - the Supreme Court upheld the Court of Appeal judgment that an award of £1,500 was too low and that an award of £5,000 for each parent would have been more appropriate.