On 23 July, Mr Justice Simons gave judgment in Rabone v Pennine Care NHS Foundation Trust [2009] EWHC 1827 (QB), in which he looked at article 2 of the European Convention of Human Rights (ECHR). His decision fine-tunes the application of article 2 following the House of Lords’ significant ruling in Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74.

This article explores the issues that arose in Rabone and the implications of the judgment. For hospitals managing mentally ill patients, the decision is distinctly encouraging.

Facts in Rabone  

On 4 March 2005, Melanie Rabone tried to commit suicide and was admitted to Stepping Hill Hospital, where Pennine Care NHS Foundation Trust managed mental health services. She was diagnosed with a severe episode of a recurrent depressive disorder. On 18 March, she was discharged, having shown signs of recovery. However, she was readmitted on 11 April, following a further attempted suicide. Ms Rabone was discharged on 19 April for two days’ home leave and during this period she committed suicide.

The trust accepted that Ms Rabone’s discharge on 19 April was negligent. If she had insisted on leaving, it was further accepted that she should have been assessed and detained under the Mental Health Act 1983.

At all times, Ms Rabone was a voluntary patient at the hospital and never detained under the 1983 Act. This is a critical fact at the heart of the judgment in the case.

Mr Rabone had previously pursued a clinical negligence claim on behalf of Ms Rabone’s estate, which was settled in April 2008.

The Law  

Article 2 of the ECHR provides that “everyone’s right to life shall be protected by law”. The state’s obligations under article 2(1) include both a negative obligation to refrain from intentional and unlawful deprivation of life, and a positive duty to protect life.

In the Savage case, the House of Lords summarised the “general obligations” of hospitals managing mentally ill patients as:

(1) employing competent staff trained to a high professional standard; and  

(2) ensuring they adopt systems of work that protect the lives of patients.

So if a patient dies due to negligent treatment, the hospital (while it may be liable for damages in negligence) will not be in violation of article 2, providing it employs competent staff trained to a high professional standard. In those circumstances, the hospital will have done all that is required to protect the patient’s life.

However, in addition to the general obligations, Savage also set out a further “operational obligation”, which arises if members of staff know (or ought to have known) that a particular patient presents a “real and immediate” risk of suicide. In these circumstances, article 2 requires hospitals to do all that can be reasonably expected to prevent a patient committing suicide.

But a key question, which was not answered unanimously in Savage, was whether this obligation applies to voluntary patients as well as to detained patients who present a real and immediate risk of suicide. Lord Rodger’s judgment left the obligation open as regards non-detained patients. Baroness Hale, on the other hand, went to great lengths to restrict the judgment’s application to detained patients only.

Decision in Rabone  

In Rabone, Mr Justice Simons made it clear that he preferred Baroness Hale’s approach to that of Lord Rodger, ruling that the operational obligation only applies to detained mental patients, rather than voluntary ones. There were, he felt, good reasons for drawing a distinction, and imposing a greater obligation once a patient was deprived of their personal liberty.

The threshold for showing that there is a “real and immediate” risk of suicide will depend upon the circumstances of each case. The steps that are reasonably required to stop a patient from committing suicide will have to be weighed up, and a balance struck between the restriction of freedom and the therapeutic benefit to the particular patient of a degree of personal autonomy. In the present case, Mr Justice Simons concluded there was only a low to moderate risk of suicide, and he was not persuaded that there had been a breach of article 2.

It was made clear that a hospital must have an established system for assessing the risk of suicide by mental health patients and, if an incident takes place, there must then be a proper process in place to investigate it. Mr Justice Simons accepted the trust did have a system and concluded that the manner in which an investigation is performed is not susceptible to formal challenge under article 2.

Mr Justice Simons ruled against the proposal that there should be an intermediate standard of “serious” negligence – a level somewhere between “ordinary” negligence and “gross” negligence – in order to breach article 2. He thought that such an intermediate standard would lead to uncertainty in an area of law where certainty is of value.

Who can bring such a claim under article 2 was also examined. Mr Justice Simons decided that Ms Rabone’s parents could not bring a claim, as they had already reached a settlement in their civil action. They had therefore already obtained a remedy and consequently did not fall into the category of “victims”. In most cases, a civil action will be the immediate remedy and this will act as disqualification to an article 2 claim.

In the Savage case, Lord Scott provided guidance on who might be regarded as a victim. The claimant, he said, was not a “victim” as she was not a dependent, did not represent her mother’s estate and could not claim that there had been any violation of the state’s investigative obligation. The issue was not argued in detail, though, and did not form part of the House of Lords’ decision.

A claim under the Human Rights Act 1998 must be instituted within a year. The court has a discretion to extend this period; and the factors it will take into account when exercising its discretion will depend upon the facts of each case. In Rabone, there was a four-month delay. Mr Justice Simons declined to exercise his discretion as there was, he felt, no merit in the underlying claim. Finally, Mr Justice Simons ruled that even if the claimants had successfully established a breach of article 2, they would only have been awarded a modest £1,500 each in recognition of the ECHR violation. He was not persuaded that bereavement damages under the Fatal Accidents Act 1976 constituted an appropriate guide.

Reassurance for hospitals  

The decision in Rabone should give hospitals some comfort. Following Lord Rodger’s ruling in Savage, an article 2 claim relating to a non-detained patient had been anticipated. The good news is that the first case following the Savage judgment has now come down in the defendant’s favour, with the scope of the operational obligation limited to patients who are detained. Mr Justice Simons also made it clear that if settlement has already been reached in a civil action, there can be no claim under article 2 in respect of the same death.

Bearing in mind the very modest damages that would be awarded for a breach of article 2, it is unlikely that such claims will be attractive to many potential claimants. Indeed, the article 2 route is only likely to be pursued where the claimant is not a dependant under the Fatal Accidents Act 1976, as in Savage. However, the issue of who qualifies as a victim is likely to be the subject of further litigation.

Finally, hospitals should be reassured by the words of Baroness Hale in Savage, who said that the operational obligation is unlikely to be an onerous one, given that a hospital will usually face a negligence claim anyway if it does not take reasonable care of its patients. The operational duty is harder to establish than negligence and hospitals should not, in her words, behave “any more cautiously or defensively than they are already persuaded to do by the ordinary law of negligence”.

The floodgates that some commentators felt had been opened by the Savage case have (for the present, anyway) been closed by the Rabone judgment. We wait with interest to see whether Mr Justice Simons’s decision will now be challenged.