Rabone v Pennine Care NHS Trust

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

[2010] EWCA Civ 698

COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM QUEENS BENCH DIVISION

MANCHESTER DISTRICT REGISTRY

MR JUSTICE SIMON

Before: Lord Justice Rix

Lord Justice Stanley Burnton

and

Lord Justice Jackson

Case No: A2/2009/2032

6MA15087

Between
(1) Richard Rabone (In His Own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased)
(2) Gillian Rabone (In Her Own Right)
Appellants
and
Pennine Care Nhs Trust
Respondent

Mr Robert Francis QC and Mr Nigel Poole (instructed by Pannone LLP) for the First and Second Appellant

Ms Monica Carss-Frisk QC and Ms Jane Mulcahy (instructed by Hempsons) for the Respondent

Hearing dates: 25 th and 26 th May 2010

Lord Justice Jackson

Lord Justice Jackson:

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 Mr Justice Simon, given on 23 rd 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 article 2 of the European Convention on Human Rights (“ECHR”) and the entitlement of Mr and Mrs Rabone to claim under section 7 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 th 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 th 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 th March Melanie was assessed as having shown sufficient signs of recovery to be allowed overnight leave. On 18 th 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 st 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 th 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 th 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 th 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 th 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 th 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 th April 2005 Dr Meagher, who had been away when Melanie was admitted on 11 th 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 will not self-harm.

Plan—for 2 days/nights leave.”

22

As had been recorded in the nursing notes, Mrs Rabone had expressed her concern about Melanie going on home leave at this time. Melanie, however, was keen to do so. She and her mother left the ward by 7.40pm for her two days home leave.

23

Melanie spent most of the following day (20 th April) with her mother; but in the late afternoon she said she was going to see a friend. At some time after 5pm she hanged herself from a tree in Lyme Park.

24

On 26 th April 2005 HM Coroner for Greater Manchester South District wrote to the NHS Trust requesting “a statement from the relevant doctors and nursing staff” who had care of Melanie. The NHS Trust responded on 31 st May, enclosing a statement from Dr Meagher in the form of a report.

25

On 31 st August 2005 Mr Rabone sent a letter of complaint to the NHS Trust. He criticised the failure to treat Melanie's clinical depression successfully. In particular he criticised the decision to grant her home leave on 19 th April.

26

In a letter dated 13 th September 2005, the NHS Trust expressed condolences for the loss of Melanie and informed Mr Rabone that:

“A thorough internal investigation...

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