Lady Hale [95]: “People suffering from mental disorders have the same human rights as everyone else and are entitled to enjoy those rights without discrimination on account of their mental status.”
Facts
In April 2005, Melanie Rabone was admitted to a hospital operated by the Defendant as an emergency following a suicide attempt. Although assessed as being at high risk, she was admitted as a voluntary or informal patient (i.e. one who was not detained under the Mental Health Act 1983 (MHA)) and began treatment for a depressive disorder. However, her doctor considered that if she attempted or demanded to leave, she should be assessed for detention under the MHA. On 19 April 2005, Melanie Rabone was granted home leave and the following day, while on leave, she hanged herself. Her family maintained that the hospital authorities should not have granted her home leave.
The Rabone family claimed damages against the Trust under the Law Reform (Miscellaneous Provisions) Act 1934 and for breach of Article 2 of the European Convention on Human Rights (ECHR). The Foundation settled the first claim for a sum of £7,500. The human rights claim failed at first instance and in the Court of Appeal, but succeeded at the Supreme Court.
Held
A unanimous decision of the Supreme Court found that Article 2 of the Convention had been breached and awarded Melanie Rabone’s parents £5000 each in compensation.
Article 2 of the ECHR, provides that “Everyone’s right to life shall be protected by law”. The Supreme Court explained that this imposes three distinct obligations on the state. The first is a negative obligation to refrain from taking life except in the exceptional circumstances described in Article 2(2). The second is a positive obligation on the state to conduct a proper and thorough investigation into deaths for which the state might be responsible. Finally, Article 2 imposes a positive obligation to protect life in certain circumstances. This positive dutyis fulfilled by: a) having in place legislative frameworks; and b) taking preventative operational measures to protect an individual, placing a duty upon the State to take appropriate steps to safeguard the lives of those within their care where they knew, or ought to have known of the existence of a real and immediate risk to their lives.
This ‘operational duty’ exists in ‘well defined’ circumstances (Osman v United Kingdom (2000) 29 EHRR 245) which include the duty to protect: prisoners from suicide (Keenan v United Kingdom (20012) 33 EHRR 913); an individual whose life is at risk from the criminal activity of a third party (Osman); and psychiatric patients who are detained in a public hospital under the MHA (Savage v South Essex Partnership NHS Foundation Trust (2009) AC 681). The court the contrasted these cases with those involving hospital deaths resulting from what Lord Roger described in Savage as “casual acts of negligence” [45]. The leading Strasbourg case in this category is Powell v United Kingdom ((2000) 30 EHRR CD 362) which establishes that:
“where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as errors of judgment on the part of a health professional or negligent coordination among health professionals are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention” (page 346)
Ultimately, the Supreme Court held that although she had been admitted voluntarily, the operational duty under Article 2 ECHR applied. Lord Dyson explained:
“the differences between the two categories of psychiatric patient (meaning voluntary and detained) should not be exaggerated” and that these differences “would have been one of form, not substance.” [34]
The following factors had informed his decision: Melanie was a real suicide risk; by reason of her mental state she was extremely vulnerable; the Trust had assumed responsibility for her; she was under its control and if she had insisted on leaving without the consent of her doctors she could and should have been detained under the MHA. [34]
Upon finding there could be an operational duty, the court then had to decide whether there was a “real and immediate” risk to the life of Melanie resulting in the Trust owing her this operational duty. A risk was “real and immediate” if it were a substantial or significant risk and not remote or fanciful [38]. To be “immediate” the risk need not be imminent, but “present and continuing” [39].
Notes
This judgment now means that hospitals must ensure they take reasonable steps to safeguard the right to life of mental health patients in their care- regardless of whether they are detained or not- in circumstances where the authorities know or ought to know there is a ‘real and immediate’ risk to life.
JUSTICE intervened in this case jointly with INQUEST, Liberty and Mind. The organisations were legally represented pro bono by Paul Bowen, Alison Pickup and Bindmans LLP.
Read the full Rabone intervention.
Read Rabone JUSTICE press release.
Read the Supreme Court judgment.