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The Supreme Court last week delivered its judgment in Rabone & Anor v Penine NHS Care Trust. The Court held unanimously that the operational obligation under ECHR, art 2 was owed to a voluntary mentally ill hospital patient, the appellant parents were victims for the purpose of art 34 and that they had not lost this status by virtue of the settlement of their negligence claim, and that the claim was not time barred as the appellants had acted reasonably in not bringing proceedings sooner. This is a significant case for many reasons, not least because of its clarification of when the “operational obligation” – the duty of the state to take “preventative operational measures” to protect the lives of individuals – articulated in Osman v United Kingdom [2000] 29 EHRR 245 applies.

Background

This case arises out of the suicide of a 24 year old woman, Melanie Rabone, in April 2005 Melanie had a history of depression and self-harm when she was voluntarily admitted onto the psychiatric ward at Stepping Hill Hospital in April 2005. Although her admission was voluntary, it was noted that if she attempted or demanded to leave, she should be assessed for detention under the Mental Health Act 1983. Melanie was released for home leave on 19 April 2005, despite the concerns of her parents. The day after Melanie was released she hanged herself from a tree in a park near to her house.

For the full background of the case and previous decisions see the case preview here.

Supreme Court Judgment

The Supreme Court unanimously allowed the applicants’ appeal. The first issue was whether the state can owe an operational duty under article 2 ECHR to a hospital patient who is mentally ill but who is not formally detained under the MHA. Lord Dyson gave an extensive analysis of the jurisprudence in this area where the operational obligation was said to arise, which covers circumstances involving “dangers for which in some way the state is responsible”. [15-18] However, cases involving hospital deaths resulting from “casual acts of negligence” have not been found to engage the operational obligation (cf. Savage; Powell v United Kingdom [2000] 30 EHRR CD 362). The question for the Court was therefore whether the hospitals admitted “casual” negligence in the case of Melanie placed her in the Powell category of cases or whether the simple fact that she was a psychiatric patient, although not detained, meant that she fell into the class of cases where the duty did arise. [20]

Lord Dyson considered the “essential features” of cases where Strasbourg has found an operational duty. [21] There was no clear articulation of the principles in the case law but factors such as the assumption of responsibility for the individual’s welfare by the state, the victim’s vulnerability (where if sufficient may trigger the obligation on its own), and the nature of the risk in question were all relevant. [22-25] Whilst not a clear guide, there was a tendency towards expansion of the circumstances giving rise to the operational obligation. [25] Turning to the question whether the Court of Appeal was correct to place Melanie’s case in the Powell category, Lord Dyson accepted that there were differences between detained and voluntarily admitted psychiatric patients but that these “should not be exaggerated”. [27] Psychiatric patients, even when there “voluntarily” may only consent to medical treatment because they fear detention if they do not. There is also a distinction between a voluntary psychiatric patient and a patient voluntarily admitted for physical treatment:

“In the case of a suicide of a psychiatric patient, the likelihood is that, given the patient’s mental disorder, her capacity to make a rational decision to end her life will be to some degree impaired. The present case is a tragic illustration of this […]the very reason [Melanie] was admitted was because there was a risk that she would commit suicide from which she needed to be protected. On the other hand, the patient who undergoes surgery will have accepted the risk of death on the basis of informed consent. She may choose to avoid the risk by deciding not to go ahead with the medical treatment.” [30]

For these reasons, there was “no doubt” that Melanie was owed an operational duty “to take reasonable steps to protect her from the real and immediate risk of suicide”. [34] Lady Hale reached the same conclusion, although added that this situation was very different from that of an individual travelling to Switzerland to be assisted to commit suicide, which would not engage the operational obligation. [100] She also emphasised the particular vulnerability of those suffering from mental disorders. [102]

Having established that an operational duty was owed to Melanie, the next question was whether there was a “real and immediate risk” to her life at the time she was sent home. The NHS Trust had appealed against the Court of Appeal’s finding that had a duty existed, there was a breach because the risk was real and immediate. The Supreme Court rejected this submission. Lord Dyson held that although it is obviously more difficult to establish a breach of an operational duty than it is in respect of ordinary negligence, in this case the risk of Melanie committing suicide was “substantial or significant” and “not a remote or fanciful one”. [37-38] Lady Hale phrased the risk as “real and ever-present”. In light of the “nature and degree of the risk to her life, and the comparative ease of protecting her from it” her right to life was violated. [107]

The victim issue was shortly dealt with. It was well established in Strasbourg case law that family members could be victims and the remarks made by Lord Scott in Savage to the contrary were incorrect. [48] The more difficult question was whether they had ceased to be victims because they had previously settled the claim. The settlement for negligence under the 1934 Act had not precluded the applicants’ ability to bring a claim in their own right for a breach of Article 2 under the HRA. [58] Lord Dyson considered the Strasbourg case law on this point and concluded that no principle could easily be extrapolated but that Strasbourg had not adopted a strict approach to the interpretation of settlements but took a broad approach as to their true meaning. However, following Caraher v United Kingdom [2000] 29 HER CD 119, Lord Dyson held that “if relatives settle their domestic law claims arising from a death, they will generally cease to be victims in relation to a corresponding Convention claim”. [57]

Applied to the facts of the present case, the applicants had only settled a claim in respect of Melanie’s estate. They had not been able to bring a claim under the Fatal Accidents Act because Melanie was over 18 at the time of her death. Their claims for breaches of article 2 were made in their own right and the head of loss covered by that claim was not the same as that covered by the settlement. Accordingly they had not renounced their victim status by settling. The compensation offered to the applicants could not be said to be adequate redress; they had been offered compensation in relation to the claim on behalf of the estate but there had been no compensation for their bereavement. [59] As Lady Hale put it “[Melanie’s] parents have not ceased to be victims of this violation simply because the hospital has paid compensation to her estate. They are victims in their own right.” [108]

Although not necessary to consider the question of whether an admission on the part of the NHS trust that they had breached article 2 removed the applicants’ victim status, Lord Dyson noted that he would have found that the trust “in substance acknowledged their breach of the article 2 duty”. [72]

Comment

This case is important both in its articulation of the extent of the positive obligation incumbent in article 2 and the clarification of “victim status”. However, it is its analysis of the role of Convention rights domestically that is of particular significance. The finding that the operational duty first set out in Osman applies equally to voluntarily admitted psychiatric patients as it does to those sectioned under the MHA is to be welcomed. To hold otherwise would be a distinction without a difference and – as Lady Hale implied – the answer to the question seemed to be an obvious one:

“A hospital trust, in breach of its duty of care towards the 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 on home 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 [. . . ] at last succeeding in the suicide which she had previously attempted and seriously threatened even more often. So why, some might ask, are we here?”

However, neither the House of Lords in Savage nor any of the post-Osman Strasbourg jurisprudence established that a voluntary psychiatric patient could trigger the operational duty under article 2. This case therefore provided the perfect opportunity for the Supreme Court to ask to what extent domestic courts are bound to follow Strasbourg authority. Section 2(1) of the HRA requires the courts to “take account” of Strasbourg case law. The principle espoused by Lord Bingham in R (Ullah) v Special Adjudicator [2004] 2 AC 323 should not mean that the domestic courts are bound to a course of inaction. As Lord Brown put it “[n]obody has ever suggested that, merely because a particular question which arises under the Convention has not yet been specifically resolved by the Strasbourg jurisprudence, domestic courts cannot determine it – in other words that it is necessary to await an authoritative decision of the ECtHR more or less directly in point before finding a Convention violation. That would be absurd.” [112].

Lord Brown’s interpretation of Ullah is important. He makes the point – rightly – that Ullah establishes that domestic courts should not “unwillingly” decide a case against a public authority unless necessary on a reading of existing Strasbourg case law. The corollary to that is that a court may in some circumstances give judgment against a public authority by providing rights to the individual more generous than provided for by the ECHR as long as to do so does not go beyond that “reasonably envisaged” within existing Strasbourg jurisprudence. On the other hand, where there is a Grand Chamber decision directly on point, it would not be prudent for the domestic court to decide to take the point differently merely because section 2 only requires it to take the decision into account. [113-114]

What Lords Brown and Mance seem to be pushing for is a more pragmatic approach to litigating Convention rights domestically. It is, of course, a common principle in international human rights law that states may afford greater protection to individual rights than the relevant international instrument. This could be either through statute or through the common law. Further, where Strasbourg case law is not consistent or has not provided a definitive answer to the question it would indeed be unsatisfactory – and probably contrary to what Parliament intended when it enacted the HRA – were domestic courts unable to give the necessary protection. For example, in this case there was very little helpful case law on the point of victim status for the Supreme Court to draw upon. Lord Mance saw this of symptomatic of any attempt to closely analyze individual section decisions of the Court as if they were binding precedents. [123]

These judicial remarks are well-timed. Lord Brown views the more pragmatic approach to Strasbourg case law as allowing the domestic courts to engage with Strasbourg while “bringing rights home”. It remains to be seen whether this will appease the Strasbourg critics or merely serve to shift their focus onto the Supreme Court.