|Roses at Lyme Park|
On 20th April 2005, Melanie Rabone (aged 24) committed suicide by hanging herself from a tree at Lyme Park, Disley, Stockport. At the time, Melanie was on "home leave" from hospital where she was engaged in treatment for depressive disorder. Melanie attended the hospital voluntarily as an informal patient - she was not detained under the Mental Health Act 1983. The responsibility for her treatment rested with what was then the Pennine Care NHS Trust. (This trust became the Pennine Care NHS Foundation Trust in 2008).
This matter is now the subject of a judgment by the Supreme Court of the U.K. - Rabone v Pennine Care NHS Foundation Trust  UKSC 2.
Melanie's parents, always maintained that the hospital authorities should not have allowed their daughter home leave and they claimed that the Trust was responsible for Melanie's death. They started proceedings against the Pennine Care NHS Trust (“the trust”) alleging negligence and breach of the right to life protected by article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms (“the
Convention”). The trust eventually
admitted negligence (a tort under common law), but did not admit liability for breach of article 2. Under the Human Rights Act 1989 s.6, it is unlawful for a public authority to act incompatibly with those convention rights covered by the Act. The Human Rights Act 1998 s.7 permits a "victim" to bring proceedings where the victim claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1).
At trial, Simon J held that there was no duty on the hospital authorities under Article 2 to take reasonable steps to guard Melanie against the risk of suicide. He also held that, if there was such a duty, there had not been a breach of it by the trust on the facts of the case.
The Court of Appeal (Rix, Stanley Burnton and Jackson LJJ) dismissed Mr and Mrs Rabone’s appeal. They agreed with Simon J that there was no operational duty but, contrary to Simon J, held that if there had been such a duty, the trust would have been in breach of it.
Before the Supreme Court, there were six issues:
(i) whether the operational obligation under article 2 can in principle be owed to a hospital patient who is
mentally ill, but who is not detained under the MHA; if the answer to (i) is yes,
(ii) whether there was a “real and immediate” risk to the life of Melanie on 19 April 2005 of which the trust knew or ought to have known and which they failed to take reasonable steps to avoid; if the answer to (ii) is yes,
(iii) whether Mr and Mrs Rabone were “victims” within the meaning of article 34 of the Convention; if the answer to (iii) is yes,
(iv) whether they lost their victim status, because the trust made adequate redress and sufficiently acknowledged its breach of duty; if the answer to (iv) is no,
(v) whether their claims are time-barred by section 7(5) of the HRA; and if the answer to (v) is no,
(vi) whether the Court of Appeal erred in holding that they would have awarded £5000 each to Mr and Mrs Rabone if their claims had been established.
The Supreme Court held that the answers were (i) Yes, (ii) Yes, (iii) Yes, (iv) No - they retained their "victim status", (v) No and (vi) the parents were awarded £5000 each.
This is a particularly important decision since it extends the Article 2 duty to patients who are in hospital voluntarily for treatment for mental issues. As fuller analysis of this case become available, I will add links.
In these times, there is a great deal of anti Human Rights Act 1998 rhetoric. In this context, it is worth noting the following from Lady Hale's judgment:
"A hospital trust, in breach of its duty of care towards its patient, allowed a young woman, who was suffering from a severe depressive episode with psychotic symptoms and had been admitted a week earlier after a serious suicide attempt, to go home on leave for two days. The only support plan was the care of her parents who were not in favour of her being allowed home. The following day she hanged herself from a tree in a well-known local beauty spot, at last succeeding in the suicide which she had previously attempted and seriously threatened even more often. The hospital trust has admitted liability to her and paid a sum in compensation to her estate. So why, some might ask, are we here?
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 this day and age we all expect our children to outlive us. Losing a child prematurely is agony. No-one who reads the hospital’s notes of the series of telephone calls made by this patient’s father to the hospital on the night in question can be in any doubt of that; or that the agony may be made worse by knowing that the loss both could and should have been prevented. It is not surprising, therefore, that parents are among the recognised victims when the right to life of their child,
protected under article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, is violated. It is also not surprising that, ... , they are victims, not only of the state’s failure properly to investigate the death, but also of the failure effectively to protect their child’s life."
Update 14th February - Further analysis of the case:
UK Human Rights Blog has two detailed posts on the Rabone case - "Analysis/Rabone and the rights of life of voluntary mental health patients - Part 1/2" - author barrister Matthew Hill and Part 2/2 - author barrister Adam Wagner.
Update 15th February: - further comment about the case is on the UK Supreme Court blog - article by Kirsten Sjøvoll. Further reading is at Hempsons - "Supreme Court decision on Rabone v Pennine Care NHS Trust." and Solicitors Journal 8th February. Hempsons instructed Monica Carss-Frisk QC to represent the NHS Trust at the appeal.
The Solicitors Journal article contains some interesting views by barrister Nigel Poole who, along with Jenni Richards QC, represented the Rabone family. As Poole indicates, the article 2 duty owed by public bodies was “developing and expanding”. There were no “neat lines” to be drawn, but the duty could be owed to “any vulnerable person for whom any public authority has assumed responsibility, whether they were in hospital or not. If the case comes within the principles set out in Europe, the domestic courts are not confined by the absence of direct authority.”