‘Operational duty’ to protect voluntary psychiatric patient from suicide

Rabone & Anor v Pennine Care NHS Foundation Trust [2012] UKSC 2 (8 February 2012)

Summary

The United Kingdom Supreme Court has extended the obligations that the right to life places on the state by holding that a hospital breached its duty to protect a voluntary psychiatric patient from the risk of suicide.

Facts

A hospital allowed Melanie Rabone, 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 leave for the weekend at her request. The only support plan arranged 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 park. Mr Rabone claimed damages from the trust on behalf of Melanie’s estate under the law of negligence and he and Mrs Rabone claimed damages on their own behalf for violation of the right to life set out in article 2 of European Convention for the Protection of Human Rights and Fundamental Freedoms. The hospital admitted liability to Melanie in negligence and paid £7,500 in compensation to her estate. However, it denied that it had breached the right to life set out in article 2.

Decision

The Supreme Court found in favour of Mr and Mrs Rabone and held that the hospital had violated the right to life set out in article 2. The reasons for its decision are as follows.

Article 2 states: “Everyone’s right to life shall be protected by law.” These words have been interpreted by the European Court of Human Rights as imposing three distinct duties on the state:

  • a negative duty to refrain from taking life save in the prescribed exceptional circumstances;
  • a positive duty to conduct a proper and open investigation into deaths for which the state might be responsible; and
  • a positive duty to protect life in certain circumstances. In particular, the third duty requires the state to take appropriate steps to safeguard the lives of those within its jurisdiction (known as the “operational duty”).

Whilst there is no clear criteria by which an operational duty exists, the following factors will be relevant:

  • the vulnerability of the victim;
  • an assumption of responsibility by the state for the individual’s welfare and safety (including by the exercise of control);
  • a real and immediate risk to life; and
  • the risk of death is exceptional in that the individual could not have reasonably been expected to take that risk.

Looking at these factors it was clear that notwithstanding Melanie was an informal patient who was in hospital voluntarily and not detained by the state, she had been admitted to hospital because she was a real suicide risk and extremely vulnerable. Had the hospital needed to, it could have exercised its power to detain Melanie to protect her from the specific risk of suicide. Therefore, the hospital had assumed responsibility for her.

Finally, the medical evidence established that although the risk of Melanie’s suicide was low to moderate (only a risk of 5-10%) it was nonetheless a substantial or significant one which was not remote or fanciful. It was also “present and continuing” despite the low likelihood in that the risk to Melanie was present when she was admitted to hospital and continued until she killed herself making it sufficiently “immediate and real”. Accordingly, an operational duty existed in this case and the question of whether this duty was breached arose.

In this regard, there was no doubt the hospital was or ought to have been aware of the risk and, although the hospital argued its admission of negligence should not automatically lead to a finding of breach of the operational duty, the standard demanded for the performance of the operational duty is one of reasonableness, as in negligence. Therefore, it is necessary to consider the circumstances of the case, the ease or difficulty of taking precautions and the resources available. In this case, Melanie’s autonomy was also relevant. As it was common ground no reasonable psychiatric practitioner would have allowed Melanie to go on leave, the hospital had failed to do all it reasonably could have been expected to prevent Melanie’s suicide.

Relevance to the Victorian Charter

This is the first decision which has considered whether the operational duty contained in the right to life (found in section 9 of the Charter) protects a voluntary (as opposed to detained) psychiatric patient from the risk of suicide. It provides a good summary of the development of the scope of the right to life and the cases in which the positive right to protect life has been found to exist.

Whilst the Charter does not provide for a compensation remedy such as the one claimed by Mr and Mrs Rabone, it is interesting to note the hospital tried, unsuccessfully, to argue Mr and Mrs Rabone were not victims that were entitled to compensation under the Convention. The European Court of Human Rights has repeatedly stated that family members of the deceased can bring claims in their own right in relation to the investigative obligation and the substantive obligations set out in article 2 and the fact that Mr and Mrs Rabone had accepted a damages payout for the negligence claim did not necessarily prohibit them from making their article 2 claim.

The decision can be found online at: http://www.bailii.org/uk/cases/UKSC/2012/2.html

Susanna Kirpichnikov is a Lawyer with Lander & Rogers

MichelleBennettDisability & Mental Health, Health