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On Tuesday 7 November, the Supreme Court (Lady Hale and Lords Walker, Brown, Mance, and Dyson) heard the appeal of the parents of a young woman, Melanie Rabone, who committed suicide while on home release from a psychiatric unit at Stepping Hill Hospital. This appeal will consider a number of important issues relating to the State’s obligations under ECHR, art 2.

It is established in Strasbourg and domestic jurisprudence that in certain “well-defined circumstances” art 2 will impose “a positive obligation on [state] authorities to take preventative operational measure” to protect the life of an individual (Osman v UK (2009) 29 EHRR 245 at 115). This is known as an “operational obligation”. Osman concerned the obligation of the State to have effective criminal laws and law enforcement measure in place to protect individuals from harm. Since then, however, this obligation has generally arisen in the context of detained individuals, either in police custody or under the Mental Health Act 1983. However, the present case concerns a voluntarily admitted patient.

Facts

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.

During her stay in hospital, Melanie’s mood appeared to lift, although her parents consistently expressed concern as to her mental state and suicidal thoughts. On 19 April 2005, a consultant psychiatrist, Dr. Meagher, who had previously treated Melanie but who had been on leave when she was admitted on this occasion, met with Melanie and her mother to discuss the possibility of home leave. Despite her mother’s concerns, Dr. Meagher agreed that Melanie, who was keen to leave the hospital, could spend 2 full days at home. The following day, Melanie hanged herself from a tree in a park near to her house.

Following the Inquest, which returned a verdict of suicide, her parents brought a claim in their own right and, in the case of her father, also as administrator of Melanie’s estate, both for negligence and for breaches of the Human Rights Act 1998. The negligence claim settled in May 2008, although the Consent Order made clear that the HRA 1998 claims would continue. It was alleged that the Respondents had breached ECHR, art 2 by both failing to carry out a proper investigation into and causing Melanie’s death. In doing so, her parents claimed to be victims of the alleged breaches for the purposes of HRA 1998, s 7.

The HRA 1998 claims were dismissed in their entirety at trial. Simon, J held that as Melanie was not detained under the Mental Health Act 1983, the NHS trust had no operational obligation under art 2 towards her and that:

(a)   In any event, there would have been no breach of this obligation;

(b)  There was no systemic breach of art 2;

(c)   There was no breach of any investigatory obligation under art 2;

(d)  Melanie’s parents could not be considered “victims” for the purposes of HRA 1998, s 7;

(e)   It was not equitable to extend the limitation period for bringing the HRA 1998 claims; and

(f)   Had the claim succeeded, the proper award of damages would only have been £1,500 in respect of each claimant.

The claimants appealed on all but (b) of the above findings. Renewed permission to appeal on (c) was refused by the Court of Appeal, leaving four grounds for consideration. [85]

Court of Appeal Decision

In its judgment of 21 June 2010 ([2010] EWCA Civ 698), the Court of Appeal upheld the trial judge’s finding that, as a voluntary mental patient, Melanie was outside of the operational obligation contained in ECHR, art 2. Jackson, LJ, delivering the judgment on behalf of the Court, considered the significance of detention pursuant to the Mental Health Act 1983, s 3 as opposed to those patients voluntarily admitted. In doing so, he looked at the House of Lords decision in Savage, where a patient with paranoid schizophrenia who had been detained under the Mental Health Act 1983, absconded and committed suicide. While recognizing that there was some ambiguity in the judgment as to whether there was a distinction between “custody” and other cases, the Court of Appeal held that when looking at whether an operational obligation arose at all, “detention under the Mental Health Act makes a critical difference”. [62].   It went on to hold that:

“In addition to the “real and immediate risk” of death, there must be some additional element before state authorities come under the operational obligation. Examples of the additional element are (a) involvement of the police with a criminal who is liable to kill the individual concerned or (b) the fact that the individual concerned is detained by the state.” [62]

Furthermore:

“On the law as it stands, I do not believe that health trusts have the article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a “real and immediate” risk of death. In my view it is not possible to separate such patients into categories and to say that the operational obligation is owed to some […] but not to others. A patient undergoing major heart surgery may be at just as great a risk of death as a schizophrenic patient with suicidal intention.” [64]

It was not considered of relevance that there was a chance Melanie would have been detained had she sought to leave the hospital against medical advice. For all intents and purposes, she was not a detained individual; the Article 2 operational obligation was therefore not engaged. [65-66]

The Court of Appeal did go on to find that had the obligation been engaged, there would have been a breach of it. In this regard, the Court considered that the meaning of “immediate” is contextual; in this case, the 2-day period of Melanie’s release. The risk was found to be both real and immediate and that it could have been prevented by simply refusing to grant Melanie’s request for home leave. [74. 76]. It is of interest that the Court felt it necessary to follow the view of the Trial Judge in holding that had leave been refused, Melanie would not have left contrary to medical advice. [76].

On the issue of whether parents of a deceased can be considered “victims” for the purpose of the HRA 1998, s 7, the Court decided with relative ease that they were at least in principle capable of falling within this category. However, there was a question as to whether this status had been forfeited as a result of bringing and settling a parallel claim in negligence. Here, the Court of Appeal attempted to derive some common principles from the divergent Strasbourg case law on this subject and found that:

(a)   Where a claim in respect of matters also forming the basis of a Convention claim is brought and succeeds, this success may deprive the applicant of his victim status under art 34;

(b)  In determining (a), one must consider all the circumstances of the domestic litigation and decide whether it affords effective redress for the Convention breach;

(c)   Relevant factors will be whether liability has been proven or accepted and the adequacy of any compensation awarded. If the latter is far short of the pecuniary damages suffered by the applicant, this will weigh against treating the domestic award as an effective remedy. [105]

Applying these principles to the present case, liability had been admitted and the claim settled under the Law Reform (Miscellaneous Provisions) Act 1934 and the facts forming the basis of the HRA 1998 litigation were the same as those for negligence. Further, the appellants had not suffered any pecuniary loss entitling them to damages under the Fatal Accidents Act 1976 from which they were barred because of their daughter’s age. [106] As such, the appellants had already achieved “effective redress”, thus barring them from bringing a claim based on the same facts under the ECHR/HRA 1998. [107]

Having dismissed these grounds of appeal, the Court did not deal with the remaining two grounds, save to say that had the HRA 1998 claim been meritorious, time should have been extended, and that the initial award of £3,000 was probably too low. [112]

The appeal

The issues before the Supreme Court are as follows:

(a)   Whether ECHR, art 2 imposes an obligation on the state to take preventative operational measures to protect a voluntary mental patient against a “real and immediate” risk of suicide;

(b)  Whether there was such a “real and immediate” risk of death in this case;

(c)   Whether the appellants were “victims” under the ECHR, art 34 and the HRA 1998, s 7. If so, did they lose that status upon settlement of the negligence claim brought by the first

ant on the basis of the same facts?

(d)  Whether the time limit under the HRA 1998 should be extended;

(e)   Whether, if the claim is successful, the Court of Appeal was right to have interfered with the trial judge’s quantification of damages.

Comment

This case is significant for two reasons: First, it tasks the Supreme Court with answering the question raised obiter by Lady Hale in Savage v South Essex NHS Trust [2009] 1 AC 653, namely “what is the extent of the state’s duty to protect all people against an immediate risk of self-harm?”. Second, the Supreme Court will have to consider the question of whether standing as a victim of an HRA breach can be waived by bringing alternative litigation on the same facts.

As to the extent of art 2 positive obligations, the distinction drawn by the Court of Appeal is between individuals voluntarily present in medical institutions and those detained on the authority of the State pursuant to the Mental Health Act 1983. This distinction is policy driven: Strasbourg itself has made clear that it does not wish to impose too onerous an obligation on states to protect individuals in society from harm. Moreover, while not an issue on appeal in the present case, there may be implications for inquests if art 2 is engaged. Although this is not automatic if Article 2 is engaged, it becomes possible that the wider ranging “how and in what circumstances” test will need to be applied.

Yet, the distinction drawn by the Court of Appeal between a patient voluntarily detained in a psychiatric ward and one forcibly detained under the Mental Health Act 1983, s 3 appears arbitrary: both cases necessarily involve a deprivation of liberty. The Court of Appeal drew an analogy with an individual seeking to travel to Switzerland to end their life. In that case, the State would not be under a duty to take steps to prevent her from doing so. However, the analogy is imprecise; there is no deprivation of liberty; no medical duty of care. In Melanie’s case, the Court of Appeal expressly recognised that the way in which the real risk of immediate harm could have been avoided was to refuse her request for home leave and keep her in hospital. Had Melanie not complied with this instruction, she would have been assessed for sectioning under the Mental Health Act 1983. She was, for all intents and purposes, under the control of the authorities. Further, the hospital is under a duty of care in respect of its patients, whether voluntarily admitted or not. In the case of Melanie Rabone, the NHS Trust admitted that it breached this duty.

The Supreme Court should therefore consider whether this is a case of distinction without difference.

As to the issue of victim status, the Court of Appeal focused on the effectiveness of the remedy provided by the claim in negligence under the Law Reform (Miscellaneous Provisions) Act 1934. The Strasbourg case law in this area is ambiguous and the Court of Appeal sought to bring some clarity to it. However, by focusing on Strasbourg jurisprudence and the exhaustion and effectiveness of domestic remedies, the Court of Appeal may have misdirected itself. The issue here is not whether the appellants have standing to bring the case to Strasbourg, having exhausted domestic remedies, but whether HRA litigation can proceed in the domestic courts. This is a subtle but perhaps important distinction and one which the Supreme Court will have to carefully consider.

Kirsten Sjvoll is a trainee at Matrix Chambers.