Wednesday 8 February 2012

Article 2 Duty on NHS Trust: .... Supreme Court decision

Roses at Lyme Park
Updates 14th and 15th February

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 [2012] 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.”


  1. " failure effectively to protect their child’s life" A "child" aged 24, is normally considered an adult, I would have thought.

    There seem to be a lot of redefinitions afoot here. Whether justified or not I would not know, but it seems like a case of "a bad case making bad law" if that aphorism isn't too outdated.

    A retired geneticist thinks.

  2. Lady Hale referred to the parents being deprived of the life of their "adult child." Here, I think, Lady Hale was highlighting the fact that these parents had an action against the NHS Trust which they would not have had, and still would not have, under the traditional tort system. It is the Human Rights Act 1998 section 7 which permits a "victim" of a breach of the Convention to bring an action. The term "victim" comes from Article 34 of the European Convention on Human Rights and the term is to be interpreted according to the case law of the European Court of Human Rights. The Supreme Court held that Mr and Mrs Rabone were victims within the meaning of Article 34 - see Lord Dyson's judgment paras. 44 to 48.

  3. I'm glad that that the court didn't allow the(formalistic)difference between a detained and voluntary psychiatric patient to sway them. However I'm not entirely sure that the clear gap between psychiatric and physical patients that both Lord Dyson (at 26-30) and Lady Hale (at 106) tried to maintain is as strong as they hope. They both relied on the example of a surgical patient undergoing major but nonetheless elective surgery where clear consent has been obtained in advance. The argument that the article 2 operational duty does not apply in that case is convincing but physical patients in emergencies often lack capacity and in these cases the healthcare providers assume the same responsibility and de facto control that was so persuasive here. I'm not convinced that the distinction can, or should be, maintained.

  4. Unlike "what happens" I am sorry that the court didn't respect the vital difference between a voluntary and involuntary patient.

    Right to life
    1. Everyone’s right to life shall be protected by law. No one shall
    be deprived of his life intentionally save in the execution of a sentence
    of a court following his conviction of a crime for which this
    penalty is provided by law.

    Who can disagree with that?

    But who can explain how that became this?

    How did an obligation to refrain from killing a person become an obligation to imprison them?

    1. The obligation to refrain from killing is known as "the negative obligation" on the authority not to breach that right. The ECHR articles are also understood to carry a "positive obligation" to actively ensure that the rights they contain can be enjoyed. It is the scope of this "positive obligation to protect life" that the court is concerned with here. Lord Dyson at paragraph 12 in the judgment gives a more detailed (and excellent) explanation of this.

    2. Thanks for the dictionary definition. As you will no doubt know, the idea of the "positive right" is highly controversial, and it was good of you to acknowledge that.

      The point is that the negative right is obvious on the face of the text. It is THE obvious meaning. Indeed it is so obvious it barely requires expression. It should not need to be an Article at all (were it not so often breached), for it is universally accepted as an ideal. It is also clear in scope, both what constitutes the negative right, and what does not. The negative rights also co-exist happily, each in their own sphere, without contradiction.

      Your weasel words that **understood to carry** say it all. The positive right is vague. It is not clear in scope - where does it end? If the state has an obligation to keep you alive, (as opposed to not killing you nor allowing others to), where does that end? There is no end...

      The positive right is not clear in application. In this case it seems to impose an obligation to detain someone who has never been found incompetent by a court, or even the bare, almost safeguard-free process known as sectioning. Yet that contradicts the Negative right to liberty.

      I dispair sometimes of our glorious parliament and their eagerness to tear down and shred our ancient rights. And sometimes I see the negative rights (the rights against the state) as our last defence, like the US bill of rights.

      If only we could understand how the rights against the state, become the rights from the state. How "do not kill" becomes "make every effort to protect people against themselves"... if only we could understand how the right to "private and family life" (who could object to keeping the state out of the kitchen) becomes the right to have one's rent paid by a plumber in Newcastle...

      The Negative Rights, the rights against the state, are the rights to be left alone, to live one's own life in one's own way. The Positive rights are obligations upon the state to interfere.

      But how did they come about? How did one, plain, clear meaning, obvious on its face, become something so different?

      If we could understand that, we might be able to prevent it, and thereby salvage the reputation of "human rights" as something we want, rather than something we want to be protected from.

    3. Sorry, I mistook your rhetoric for a genuine question. In that light you will realise that "understood to carry" were not weasel words but simply a description of the law. The European and domestic case law is unequivocal; whatever other opinions society may contain **the courts** understand the articles in that way.

      Maintaining that there is never any positive right is difficult. Presumably you also feel that the tort of negligence shouldn't exist? After all it too often obliges public authorities to interfere and it will be found in a huge number of cases that don't breach Article 2. Were the police to negligently allow someone in witness protection to be found by criminals and killed should they be free from all prosecution just so long as they didn't actively invite them in?

      To claim negative rights are 'against' the state is disingenuous too. If they are law it is because the state has made them so; whether that is by signing the treaty or the accumulated weight of judicial decisions. They are a declaration by the state that it will act in certain ways, nothing more, nothing less. They will never defend us from the state because they, like the positive rights, flow from it.

      There may, of course, be ancient natural rights invisibly dwelling in every man that are not derived from the state but we do not gain any legal protection (nor, history would suggest, any real protection at all) from that source. I prefer not to worry about such pixie dust.

      Your more substantive point; that to avoid a breach of the positive obligation to preserve life a breach of the negative right of liberty would have been necessary is fair enough. The question then, I would suggest, is not of absolutes but of balancing competing rights. I would even agree with you that the right to liberty is often virtually ignored in healthcare and that overall the balance should shift a long way in that direction. However on the facts of this particular case I think that the court decided rightly and I'm glad of it.

    4. Torts: There is no obligation on the *executive* in a tort. The obligation is on the judiciary to adjudicate when prayed to do so, and only in response to a complaint. That is entirely different.

      "To claim negative rights are 'against' the state is disingenuous too. If they are law it is because the state has made them so"

      No. Law, like property, pre-dates both the state and written language. Law is the basis of the state's authority, not vice-versa. You may call it pixie dust, but I suspect that you understand very well the power, and necessity, of ideas.

      As to the substantive point, you have missed it again, deliberately I suspect. We must be able to rely on the law meaning what it says. The negative rights in the ECHR are there because *that is just what it says*. The positive rights are not there because *it just doesn't say that*. The words "understood to carry" are weasel words because they are a sophisticated expression of a falsehood. That is all.

    5. Ed (not Bystander)23 February 2012 at 06:09

      Law, like property, pre-dates both the state and written language. Law is the basis of the state's authority, not vice-versa.

      You are touchingly naive about how the world works. In the west, we have achieved the rule of law through blood and centuries of hard work. Not through pixie dust. I would love to hear you explain away how a majority of the world does not live under the rule of law, despite law "predating written language".

    6. We have a natural lawyer arguing for a limit in rights and a legal positivist who wants their extension. I suppose this shows how central the entire concept has become to law.

      The specific tort of negligence can place an obligation on public bodies where an appropriate duty of care is owed. The positive right under article two is entirely analogous in this respect. In both cases our judiciary, having no investigative role, will only adjudicate in response to a complaint.

      Re "law" and the "state"; I suspect that we are using the words imprecisely and talking past one another. In the ultimate case law comes from power, not power from law. Every successful conquest, revolution and secession is an illustration of this. A new legal system flows from the new political order although the leaders will inevitably attempt to give it legitimacy by references to "the people" and so on. Law, like history, belongs to the victors. The idea of rights may indeed pre-date any particular state but legally enforceable rights only exist when a judiciary recognises them.

      It is important that the law means what it says. However England has a common law system and the body of precedents recognising positive rights are also part of its law; the law as whole does indeed "say that". Obviously it remains open for Parliament to legislate appropriately if it feels that the Supreme Court has strayed.

    7. Thank you ObiterJ for hosting this discussion, which I hope is not becoming too tiresome.

      @whathappens, To address your points:
      Power is required for law to be enforced, yes, but law does not come solely from power. That is the "might makes right" argument - there would be no such thing as an illegal government act if it were wholly true.

      Does power come from law? Yes, at least partly. Power is greatly magnified by public support, which requires the powers that be to be seen as legitimate. Being seen to be lawful, be it customary law, or its outgrowth common law, is important. It's not pixie dust, it's an idea, indeed an ideal.

      So the answer is "yes and no". (I suspect at this point we really have a difference of emphasis rather than a substantive disagreement - but if you really think "might makes right" feel free to say so.)

      (As you noted we are using words in a somewhat vague sense, which is the usual way after all, though it helps to be careful where the differences matter. E.g. using "law" in two slightly different ways - law in operation, currently enforced, and law in the abstract. The above is about the latter. It's having multiple related concepts which allow us to have these conversations).

      "England has a common law system and the body of precedents recognising positive rights are also part of its law".

      Yes indeed. To make that a **conclusion** though is risible. The law in operation is what it is because judges have ruled it so. They did so following precedents. But the precedents were created by judges. So to conclude that a judge's ruling must be right because it follows precedent is circular. It is still possible to argue about whether judges were **right** to create the precedents that they did. And it is obviously open to the supreme court and to overturn previous decisions. The question is: Ought they to?

      Appealing to precedent cannot answer this - you need a theory of law, and just because we no longer believe in fairy tales doesn't mean that unmooring the common law from a search for natural justice is a good idea.

      (Tort: This is a side issue, so I will just point out that to say that the law of tort produces an obligation on the state whenever the state has a duty is daft. The obligation is not produced by tort law, since the a duty **is** an obligation already. Tort is just a way to get compensated when the duty is breached - the duty must come from somewhere else.)

      Finally I am certainly not opposing rights. We both agree that rights are central. My concern is that the expanding positive rights are a threat to the more important and fundamental negative rights. I would have no problem with them otherwise.

      But finding the positive rights in the convention is dangerous because they often conflict with and have to be "balanced" against the negative rights. In effect (if not necessarily witting intention) this is legal "ju-jitsu", using the convention rights against each other, with the effect of nullifying the restraint they offer on government.

      It is already having the effect of undermining the negative right of free speech as against the new positive right of privacy (an obligation on government to actively protect privacy as opposed to passively refraining from intruding on it), while at the same time the right to privacy against government intrusion is itself being undermined. This is being justified in public in terms of the right to life.

      That is what worries me. The convention rights, on their plain English meaning, I think are great.

    8. Might cannot make right however only might makes law. The idea of an illegal government act doesn't contradict this because power in a modern state is not unitary in nature. That some parts of the machinery of government act as a brake on others is in not evidence that there are other sources of law than power, only that power is distributed in a modern state. It is not that morality has no bearing on law but that power decides whose morality becomes law. This is one of the stronger arguments for entrenching human rights protections as much as is possible.

      The comment about England having a common law system was in response to your comment that the positive right are 'not there'. At that point I was merely pointing out that the positive obligation is law, I wasn't discussing its merits. I personally find the idea that the common law is progressing towards 'natural justice', whatever that may mean, deeply suspect but that is a digression upon a digression.

      A civil case for negligence is a way to address the breach of an existing duty, similarly a claim for breach of the Article 2 positive obligation is only possible when there is a pre-existing duty.

      The idea that positive rights are always the most important and fundamental certainly requires more than a bare assertion but really the problem is that the entire positive/negative typology is overly simplistic. As soon as 'negative' rights are legally enforced they've placed a 'positive' duty on the state to address breaches. Hohfelds four way typology of Claim, Liberty, Authority and Immunity is more useful for any practical analysis and specific moral claims in straightforward moral language is more appropriate for discussing which 'rights' we consider to be important enough to protect.

    9. Ed (not Bystander)3 March 2012 at 21:39

      A positive duty on the state to remedy breaches still does not create positive rights for individuals. The ECHR has created positive rights for individuals (including to life, though this can be regarded as the negative right to not be killed), which are incorporated directly into UK law by the HRA 1998. However, previously to that, unless there were some in EC law, individuals only had negative rights.

      Ultimately, I find jurisprudence to be a rather sterile exercise. This discussion does not change my mind on that.

    10. A positive duty on the state to remedy breaches can be restated as a positive right of the individual to have breaches remedied. Similarly the great 'negative' right not to be detained illegally is in practice better described a positive right to have the courts review your detention. It somewhat predates the ECHR.

      There are differences between the first generation civil rights and the second generation social rights but the positive/negative typology is useless for exploring either that or anything else.

    11. "Similarly the great 'negative' right not to be detained illegally is in practice better described a positive right to have the courts review your detention. "

      No: It can be better put as the right to use all necessary force to resist, not merely a right to review.

      Well, I think we have reached the "oh yes it is/oh no it isn't" point here. If you cannot see a difference between active and passive I am not sure there is anything I more can say.

      Of interest, this article says it better than I can:

      But there is a more fundamental reason that liberals should be sceptical of human-rights law: because it makes us all less free. Human rights are not ‘rights’ in a liberal sense at all. They bear no resemblance to the ‘rights’ fought for by the radical liberals of the English Civil War, or the French and American revolutions, which sought to limit the power of the state and protect the autonomy of citizens. Instead, human rights treat people as fundamentally vulnerable and in need of state protection. This view of human vulnerability, in the eyes of the human-rights lobby, justifies the granting of absolute power to the state to set the boundaries of freedom.

    12. The right that I was referring to was, of course, habeas corpus. It is admittedly less exciting than your right to use all necessary force but then it has the compensatory benefit of having actually existed.

      There is much to be proud of in English legal history but the golden era of 'English Civil Rights', while making good Daily Mail editorials, never existed either. As late as 1822 England had 222 capital crimes, including poaching and robbing a rabbit warren. The average trial length at the time was eight and a half minutes. Police procedure as we know it simply didn't exist. I'll take the Human Rights Act.

    13. "it has the compensatory benefit of having actually existed"

      And I had no idea! The right to self defence is so controversial (and exciting) that some people believe it doesn't exist!

      (That is, of course, the right I was referring to)

      Oh yes it is/oh no it isn't etc....

    14. Do you genuinely believe that being able to claim self-defence at your trial for, for instance, assaulting an officer who has arrested you without giving grounds is a comparable protection to habeas corpus? Self defence barely addresses the same issue, never mind the wider topic that habeas corpus was an illustration of.

    15. @what happens: It's nice that you are now recognising that self defence exists but I am not sure how your example supports your point, so I think I will let it lie.

    16. Self defence exists but in English law it is a right to use reasonable, not 'all necessary', force.

      If you shot a police officer who had forgotten his warrant for your arrest you'd soon find out that they are very different things and that your claimed right is non-existent.

    17. Perhaps you are right, though I do not think so. Let us draw this to a close.

  5. @ What happens. Thanks for this interesting observation. I entirely agree with your first sentence. The court's observations regarding surgical patients are, as far as I can see, obiter dicta and, like you, I would not be sure that an Article 2 duty could be entirely ruled out. Facts of cases are infinitely variable and so one cannot say "never" to Article 2. Interestingly, Lady Hale refers to the possibility of Article 2 applying to protect patients who are known to be at risk from a third party. Hale referred to the recent cases at Stepping Hill Hospital which, of course, have nothing to do with the Rabone case. Nevertheless, in those cases, the tampering with the saline seems to have been the act of someone who was unknown to the authorities.

  6. Hi again, so far as I can see blogger doesn't have private message functionality but as I know you have moderated comments you can simply delete this one after reading. I've expanded on my thoughts on possible implications of the obiter comments over on my blog If you have the time and feel inclined to read over them it would be appreciated. Thanks.

  7. What Happens has published an interesting post on his/her What Happens blog. Time and events will tell but it seems possible that the Rabone case may prove to be a stepping stone to Article 2 liability in some situations involving even voluntary patients who are in hospital for treatment relating to entirely physical conditions. Of course, this is how the common law system operates: arguing from precedent to precedent.

    Good luck to "What Happens" with the blog.