Does the ‘right to life’ (Article 2 ECHR) require states in certain circumstances to incarcerate law-abiding citizens against their will? That appears to be the effect of Rabone v Pennine Care NHS FT [2012] UKSC 2, the first medical case to come before the Supreme Court.  

Facts

Melanie Rabone hanged herself from a tree in her local park on 20 April 2005. She was 24 years old and had been diagnosed as suffering from depression for around five years. She had attempted suicide three times in the past two months, and after the final attempt on 11 April, had agreed to an informal (voluntary) admission to Stepping Hill Hospital in Stockport. The Senior House Officer recorded that, if she attempted to leave, she should be assessed for detention under the Mental Health Act. Her parents continued to express concern about her mental state after her admission but on 19 April, when Melanie requested home leave, the consultant psychiatrist sanctioned her request, advising her to take responsibility for her actions. She left hospital that evening and committed suicide the following afternoon.

Melanie’s parents brought an action in negligence against the Hospital on behalf of the estate. The claim was settled for £7,500 plus costs, comprising an award for funeral expenses and Melanie’s pain and suffering in the moments prior to her death. Under the Fatal Accidents Act, parents are unable to bring a claim for bereavement where their child is aged over 18. Her parents therefore brought a claim in their own right for breach of Article 2 ECHR. As Lady Hale put it ‘We are here because the ordinary law of tort does not recognise or compensate the anguish suffered by parents who are deprived of the life of their adult child.’

In an opinion with which each Justice agreed, Lord Dyson identified six issues raised on appeal. This article deals with the first, critical issue: whether the operational duty under Article 2 can apply to a voluntary psychiatric patient.

Defining the ‘operational duty’

Osman v UK (2000) 29 EHRR 245 established that in ‘well-defined circumstances’ the state will breach Article 2 if it fails to take ‘preventative operational measures’ to protect an individual within its jurisdiction where it knew, or ought to have known at the time, of the existence of a real and immediate risk to the life of that individual.

The ECtHR has found that the operational duty to take all reasonable steps to prevent suicide applies inter alia in the case of prisoners, detained asylum seekers and military conscripts; situations where the state has, for its own purposes, placed individuals in dangerous and unpleasant conditions. The House of Lords in Savage v S Essex Partnership NHS FT [2009] AC 681 extended that duty to patients detained under the MHA.

In contrast, in Powell v UK (2000) 30 EHRR CD 362 hospital deaths resulting from ordinary (or ‘casual’) negligence do not engage Article 2, provided the state has made adequate provision for securing high professional standards among healthcare workers.

Simon J at first instance and the Court of Appeal considered that Melanie’s case was more analogous to Powell than Savage and emphasised that the distinction between voluntary psychiatric patients and those detained under the MHA was a critical one. Hospitals owe the same duty to all voluntary patients, regardless of whether their injuries are physical or psychiatric: A patient who freely undergoes heart surgery may be at real and immediate risk of death, but in the event of substandard treatment, his cause of action is in negligence, not by reference to Article 2.

Lord Dyson described the distinction as ‘exaggerated’ and ‘more apparent than real’. After all, the voluntary psychiatric patient may be effectively incapable of making an informed choice due to his/ her medication. Moreover, the patient may only be ‘consenting’ to remain in hospital because they believe they would be detained if they attempted to leave.

Ultimately, the Supreme Court held that the operational duty did apply. Lord Dyson relied on the following factors: Melanie was a real suicide risk; she was extremely vulnerable; the trust had assumed responsibility for her; she was under its control and if she had insisted on leaving without her doctors’ consent, she would (absent negligence) have been detained under the MHA.

Commentary

Before considering whether the leap from compulsorily detained to quasi-voluntary patients was justifiable, the ECtHR has yet to confirm that the House of Lords was right to draw an analogy in Savage between prisoners of the state and patients detained under the MHA. Arguably, there is the fundamental, albeit generalised, distinction between the two: prisoners are at greater risk of suicide because they are detained, whereas psychiatric patients are only detained because they are at risk of suicide.

In other words, the duty of the state identified in Keenan v UK (2001) 33 EHRR 913 springs not from the fact that states can help prevent suicides in prison but from the state’s active role in making suicides more likely: The state intends prison to be a monotonous and even demeaning experience (within limits). Otherwise there is no effective deterrent.

Conversely, the extensive powers the state has over those detained under the MHA are directed solely towards avoiding the very danger that has already come about.

The extension in Rabone to voluntary patients is harder still to justify. The two main considerations in applying the operational duty appear to have been (i) that Melanie was at real risk of committing suicide and (ii) that had she attempted to leave without her doctors’ consent, she ought (absent negligence) to have been detained under the MHA. The first factor appears to go to breach rather than duty. The second factor is counter-factual, as Melanie never attempted to leave without consent. More importantly, it treats the transition from contemplating to actually detaining a person as of little or no importance. This will only serve to muddy the waters between a doctor and his patient as regards their respective rights and powers.

As Bertie Leigh pointed out in July’s Clinical Risk, ‘The argument that the state can be said to have compelled Miss Rabone to remain in hospital by the implied threat that she would be detained if she tried to leave, looks even stranger when it is realised that the negligent act was allowing her to leave. The complaint is not that the state took control of her life, but that it failed to do so.’ (18 (4), 158 (2012))

Conclusion: A move towards more conservative practice?

The effect of this judgment on the practice of psychiatry is beyond the competence of the author. However, the first and most likely effect is that mental health practitioners will be quicker to detain patients who they consider to be at a real, however small, risk of committing suicide. To do otherwise may lead to the somewhat absurd conclusion that the patient’s Article 2 right has been breached.

The second possibility is that users of mental health services will become more reticent about admitting to any suicidal thoughts for fear of being swallowed up by the state. Or, worse still, they will be deterred completely from seeking the state’s help. Either way, it is an issue that will need to be looked at again, sooner rather than later.