UK: In The Footsteps Of Savage – Rabone v Pennine Care NHS Foundation Trust

Following the decision in Savage last year, there has been much debate surrounding the duties placed on healthcare providers under the Human Rights Act in respect of patients who may pose a risk of suicide. The recent decision in Rabone v Pennine Care NHS Foundation Trust has considered when such duties arise.

Background

The claimants' daughter, Melanie, committed suicide the day after being allowed home on leave from the defendant's psychiatric hospital. She had been admitted to hospital as a voluntary patient, suffering severe depression and following suicide attempts.

A claim brought on behalf of her estate had been compromised but the Court considered the Human Rights Act 1998 (HRA) claim, in particular whether the Trust had been in breach of its obligations under article 2 of the European Convention of Human Rights.

The issues

One of the key issues considered in Rabone was whether the Trust had been in breach of its 'operational obligation' under article 2 and if not, whether she should nevertheless be regarded as being detained.

In addressing this issue, the Judge carefully considered the case of Savage v South Essex Partnership NHS Foundation Trust, in which the House of Lords held that this operational obligation arises where a particular patient presents a 'real and immediate' risk of suicide.

The claimants submitted that the reasoning in Savage did not depend upon formal detention under the Mental Health Act 1983, and in any event, as the State had assumed responsibility for Melanie's care, she was 'effectively detained'.

In rejecting these arguments, the Judge considered that in Savage, the House of Lords were drawing a distinction between those who were detained and those who were not. Significantly, he also noted that all hospitals assume responsibility for their patients, but this does not mean that the operational obligation arose in relation to all patients. The crucial factor, insofar as the operational duty is concerned, is the exercise of coercive powers over an individual who, as a result, is particularly vulnerable. The Judge added that the cases of R (Takoushis) v Inner North London Coroner and Secretary of State for Defence v Smith emphasised the importance of the distinction between those who are detained and those who are not. He clearly stated that the operational obligation is confined to the former.

Whilst the issue of whether or not Melanie was at real and immediate risk of suicide was academic in light of the Judge's finding that the operational duty did not arise, he found that in any event, she was not. He described the risk in Melanie's case as 'significant' and whilst it was real, it was not immediate.

The claimants also submitted that there was a systemic breach of article 2, an argument which the Judge rejected. There were systems for assessing and recording risks and the issue in Melanie's case was one of implementing that system and exercising clinical judgment in doing so.

A novel argument of 'serious negligence', in the sense of a collective failure to provide protection for Melanie, was also raised by the claimants. The Judge considered this to be unfounded. There are no authorities upon which to base such a test and in any event, as a point of principle, it would be inconsistent with case law that had developed, not least that of Savage.

Whilst the Judge was critical of the length of time it took the Trust to complete its Serious Untoward Incident (SUI) investigation (18 months), he rejected the argument that the State had not complied with its obligation under article 2 to investigate a death which may have been caused by a breach of that article. He was satisfied that the SUI investigation and Inquest met this duty. Interestingly, he also concluded that the SUI report was not susceptible to challenge under article 2.

The claimants' status as victims, as defined by section 7(1) HRA, was also considered by the Court. Following Powell v United Kingdom and Hay v United Kingdom, in view of the fact that the claimants had settled the claim in negligence (and so had another remedy available to them), they did not fall into the category of 'victims'. The Judge drew no conclusions on what would the status of the claimants have been, had there been no other remedy available, leaving open the possibility of future cases being brought on this issue. It is worth remembering, however, that in Savage, the House of Lords questioned the entitlement of the daughter of the deceased to bring a claim as a victim.

The Judge also considered HRA limitation in light of the fact that the Claim Form was issued 16 months after the date of Melanie's death. The HRA allows only a period of one year in which to commence an action. The Judge refused to exercise his discretion to extend time and in doing so, took into account the contents of the SUI report, the admission of negligence by the Trust and its letter of apology to the family.

So what does it all mean?

This is a significant case as it clearly limits the operational obligation as applying only to those individuals who are detained and not to patients and hospitals generally. It will also perhaps reassure Trusts that for claimants to demonstrate that the operational duty arises is more difficult than establishing 'simple' negligence – a point the House of Lords had made in Savage.

Also, the Judge's finding on whether Melanie was at a 'real and immediate' risk of suicide demonstrates that the test described in Savage is indeed difficult for claimants to satisfy. What seems clear, however, is that this test will depend upon the facts of each case.

It is also worth bearing in mind that alternative forms of redress the claimant has received will be taken into account, both in terms of the legitimacy of the claim under the HRA and in relation to limitation issues.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.