Rabone v Pennine Care NHS Trust

JurisdictionEngland & Wales
Judgment Date21 June 2010
Neutral Citation[2010] EWCA Civ 698
Docket NumberCase No: A2/2009/2032
Date21 June 2010
CourtCourt of Appeal (Civil Division)
Neutral Citation:

[2010] EWCA Civ 698

Court and Reference:

Court of Appeal, A2/2009/2032

Judges:

Rix, Stanley Burnton and Jackson LJJ

Rabone and Rabone
and
Pennine Care NHS Trust
Appearances:

R Francis QC and N Poole (instructed

by Pannone LLP) for the appellants; M Carss-Frisk QC and J Mulcahy (instructed by Hempsons) for the respondent.

Issues:

Whether the state was under an operational obligation under Art 2 ECHR to voluntary patients who were at real and immediate risk of death; whether parents of the deceased were victims for the purposes of s7(7) Human Rights Act 1998

Facts:

The deceased, who had a long history of mental health problems, was admitted to hospital as a voluntary patient after making repeated attempts at suicide. Whilst in hospital she continued to experience suicidal ideation and the appellants, her parents, expressed concerns about her lack of improvement and the prospect of her being granted home leave from the hospital. During a two-day period of home leave the deceased hanged herself. At the inquest a verdict of suicide was returned. The respondent conducted its own serious untoward incident investigation, which was not concluded for some 18 months but which was ultimately critical of the respondent's care of the deceased.

The appellants issued proceedings claiming damages in negligence and under the Human Rights Act 1998, alleging in respect of the latter that the respondent had acted contrary to Art 2 ECHR in that its conduct had caused the deceased's death and the respondent had failed to conduct or permit an effective investigation into the death. The appellants claimed to be victims of those alleged breaches. The claim in negligence was settled with damages for funeral expenses and the deceased's pain and suffering.

At first instance it was decided that as the deceased had been a voluntary patient the respondent did not have an operational obligation to her under Art 2 and that, in any event, any such obligation had not been breached. It was further held that the respondent had not been in breach of the investigatory obligation under Art 2 and that the appellants were not victims for the purposes of s7(7) Human Rights Act 1998. The appellants appealed.

Judgment:

Jackson LJ:

1. This judgment is in ten parts, namely:

Part 1 - Introduction

Part 2 - The facts

Part 3 - The present proceedings

Part 4 - The appeal to the Court of Appeal

Part 5 - The first ground of appeal - operational obligation

Part 6 - The second ground of appeal - breach of the operational obligation

Part 7 - The third ground of appeal - breach of investigatory obligation

Part 8 - The fourth ground of appeal - victim status

Part 9 - Fifth and sixth grounds of appeal - limitation and quantum

Part 10 - Conclusion

PART 1. INTRODUCTION

2. This is an appeal against the judgment of Simon J, given on 23 July 2009, in which the judge dismissed a claim made against Pennine Care NHS Trust ("the NHS Trust") by Mr Richard Rabone and Mrs Gillian Rabone in respect of the death of their daughter, Melanie Rabone ("Melanie").

3. This appeal raises issues concerning the obligations of the NHS Trust under Art 2 of the European Convention on Human Rights ("ECHR") and the entitlement of Mr and Mrs Rabone to claim under s7 of the Human Rights Act 1998 ("the Human Rights Act").

4. Article 2 of ECHR provides: "Everyone's life shall be protected by law." This short provision encompasses a number of obligations, including the "operational obligation" and the "investigatory obligation". These two obligations will be discussed in Parts 5 to 7 below.

5. The facts of this tragic case are largely undisputed. In summarising those facts I shall draw heavily, and without further acknowledgement, on the narrative section of the judge's judgment.

6. In this judgment I shall refer to the Law Reform (Miscellaneous Provisions) Act 1934 as "the Law Reform Act". I shall refer to the Fatal Accidents Act 1976 as "the Fatal Accidents Act". I shall refer to the Mental Health Act 1983 as "the Mental Health Act". I shall refer to the European Court of Human Rights in Strasbourg as "the Strasbourg Court".

7. After those brief introductory remarks, I must now turn to the facts.

PART 2. THE FACTS

8. Melanie was born in 1981. During 2000 Melanie was diagnosed as suffering from depression and received medical treatment. There was some improvement in the following years, although Melanie had intermittent episodes of anxiety.

9. On 4 March 2005 Melanie tried to commit suicide by tying a pillow-case around her neck. She was admitted to Stepping Hill Hospital following an emergency referral by her GP.

10. On 7 March 2005, while a patient on Warren Ward, Melanie was assessed by Dr Joseph Meagher, a consultant psychiatrist, and Dr Diane Cook, a senior house officer. Dr Meagher diagnosed a severe episode of a recurrent depressive disorder. Warren Ward was part of the Mental Health Services Unit at the hospital. At a ward round on 14 March Melanie was assessed as having shown sufficient signs of recovery to be allowed overnight leave. On 18 March, she was seen again by Dr Meagher and was discharged. A family holiday to Egypt had been booked. The family spent a week away together.

11. While on holiday Melanie's mental state became increasingly frail and this continued following the family's return to England. On 31 March, she cut her wrists with broken glass and was seen at the A&E department of the hospital. Dr Meagher advised she should be readmitted. However no beds were available at the time on Warren Ward.

12. On 6 April 2005 Melanie had an appointment with Dr Cook at the hospital outpatient clinic. She was noted as having occasional thoughts of suicide and frequent thoughts of deliberate self-harm.

13. On 11 April 2005, Melanie tied lamp flex around her neck. Her face became swollen and there were ligature marks around her neck. Her parents also found a hosepipe and tape hidden in her room. She was assessed by Dr Cook who noted on the medical notes:

"Impression: Severe depressive episode….? Psychosis, High risk DSH [deliberate self harm] and suicide."

14. Melanie agreed to her informal admission to the hospital; but Dr Cook noted that, if she attempted or demanded to leave, she should be assessed for detention under the Mental Health Act. She was prescribed a course of drugs and thereafter kept

under regular 15 minute observation.

15. A full mental state examination was carried out on admission by one of the nurses on the ward, Nick Tatnall, as part of the "Care Programme Approach" risk profile. He assessed Melanie as being a moderate to high suicide risk. He also filled out a risk profile document, which indicated that further assessment or information was required in the light of various indications of risk.

16. At 8pm on 13 April Mr Rabone spoke to Nurse Tatnall. The nursing notes record that Mr Rabone:

"… expressed grave concern about Melanie's current condition and her not being sent out on leave or discharged too soon."

He was told that she would need to see a doctor before leaving Warren Ward.

17. There were further conversations during the course of the week between the hospital staff and the claimants, during which they expressed their concern about Melanie's impulsiveness and the risk of self harm.

18. On 16 April 2005, Nurse Tatnall recorded that Melanie 'appeared brighter in mood'. Later that day she was taken off the Warren Ward by Mr Rabone, but within the hospital premises.

19. During this week Melanie wrote a note which showed strong suicidal ideation. This was written on the back of a note containing some affectionate verses from her sister, Amanda. One of the factual issues at trial was whether this note was passed from Melanie's family to hospital staff. The judge found as a fact that this document was not handed over and there is no appeal from that finding.

20. There are notes in the nursing reports over the following days that Melanie's mood was lifting. However, at 1pm on 18 April Mr Rabone was recorded as telephoning the ward to state his concern that Melanie was not improving, that she had expressed fleeting suicidal thoughts since admission and had asked her parents to 'get her out' of the hospital. Melanie was asked by the nursing staff why she had rung her family asking to 'get her out', and responded by saying she had not been sleeping well due to disturbance from another patient. She expressed the wish to go out the next day with her parents, and was told that she could provided they agreed.

21. On 19 April 2005 Dr Meagher, who had been away when Melanie was admitted on 11 April, returned from leave. He was told that Melanie was requesting home leave. On the late afternoon ward round he met Melanie and her mother. Nurse Erin Booth was present at the ward round and made a record in the nursing notes:

"Dr Meagher, Dr Davies, SN Erin Booth. Melanie seen with her mother. States she self harmed at home due to feeling angry at herself because of the thoughts she has. Realises that does not achieve anything. Feels trapped at home 'slightly'. Would like to be more independent. Stated enjoyed recent trip to Egypt. Does not regret leaving employment. Wishes to look for something else. Does not want to stay in destructive cycle. Struggling to recognise how she can stop same. Feels she is lacking in confidence and has low self-esteem. Identified ways of addressing issues herself. Would like leave for up to a week. Would start looking for job and see friends. Leave agreed as long as Melanie when seeing her friends does not talk about herself and become centre of attention. Reason for this also discussed. Mother concerned about same as unable to keep eye on her. Dr Meagher advised Melanie has to take responsibility for own actions and when has previously harmed herself it has been when parents keeping an eye on her. Melanie in agreement that...

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