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Supreme Court goes beyond Strasbourg in right-to-life ruling

Hospital owed duty under article 2 to voluntary psychiatric patient

13 February 2012

The Supreme Court has ruled that the NHS is under a duty to protect the rights to life of suicidal mental health patients, even if they are in hospital voluntarily. The ruling takes UK law into an area where there are no direct precedents from Strasbourg.

The parents of Melanie Rabone claimed that, by allowing her to leave hospital and commit suicide, Pennine Care NHS Trust had violated their daughter’s right to life under article 2 of the ECHR.

Nigel Poole, a barrister based at King’s Chambers in Manchester and Leeds, represented the Rabone family with Jenni Richards QC.

Poole said the Supreme Court had recognised that the duty under article 2 of the ECHR owed by public bodies was “developing and expanding”.

He said 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.”

Poole said he did not believe the floodgates had been opened, and the ruling would apply only to “exceptional cases” where there was a real and immediate risk to life.

However, he added: “A significant number of cases will be brought, which would not have been brought before this decision.”

Giving the leading judgment in Rabone and other v Pennine Care NHS Trust [2012] UKSC 2, Lord Dyson said the law on the operational duty of public authorities to protect the vulnerable under article 2 was “young” and its boundaries were “still being explored” by Strasbourg.

“But it seems to me that the court has been tending to expand the categories of circumstances in which the operational duty will be found to exist.”

Lord Justice Jackson at the Court of Appeal drew a clear distinction between the Rabone case and the House of Lords ruling in Savage, where the patient involved was sectioned under the Mental Health Act (see Solicitors Journal 154/17, 4 May 2010).

Lord Dyson agreed that there was a “crucial difference” between voluntary psychiatric patients and those “detained by the authority of the state”.

However, he went on: “As regards the differences between an informal psychiatric patient and one who is detained under the MHA, these are in many ways more apparent than real.

“It is true that the paradigm of a detained patient is one who is locked up in a secure hospital environment,” Lord Dyson said. “But a detained patient may be in an open hospital with freedom to come and go.

“By contrast, an informal patient may be treated in a secure environment in circumstances where she is suicidal, receiving medication for her mental disorder which may compromise her ability to make an informed choice to remain in hospital and she would, in any event, be detained if she tried to leave.”

Lord Dyson said he was “in no doubt that the trust owed the operational duty” to Melanie to “take reasonable steps to protect from the real and immediate risk of suicide”.

He allowed the appeal by Mr and Mrs Rabone and awarded them £7,500 in compensation. Lady Hale and Lords Walker, Brown and Mance agreed.

Gill Edwards, partner at Pannone and solicitor for the Rabones, said the judgment would have a direct impact on the way inquests were run.

“It means that families of such patients will be entitled to ask for a more detailed article 2 inquest to investigate the circumstances surrounding the death of their loved one.”

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Local government Vulnerable Clients