Rabone and another v Pennine Care NHS Trust

JurisdictionEngland & Wales
JudgeLORD MANCE,LORD DYSON,LORD BROWN,LORD WALKER,LADY HALE
Judgment Date08 February 2012
Neutral Citation[2012] UKSC 2
Date08 February 2012
CourtSupreme Court
Rabone and another
(Appellants)
and
Pennine Care NHS Foundation Trust
(Respondent)

[2012] UKSC 2

before

Lord Walker

Lady Hale

Lord Brown

Lord Mance

Lord Dyson

THE SUPREME COURT

Hilary Term

On appeal from: [2010] EWCA Civ 698

Appellants

Jenni Richards QC

Nigel Poole

(Instructed by Pannone LLP)

Respondent

Monica Carss-Frisk QC

Jane Mulcahy

(Instructed by Hempsons)

Interveners (INQUEST, JUSTICE, Liberty and Mind)

Paul Bowen and Alison Pickup

(Instructed by Bindmans LLP)

Heard on 7 to 9 November 2011

LORD DYSON
1

Some time after 17.00 hrs on 20 April 2005, Melanie Rabone hanged herself from a tree in Lyme Park, Cheshire. She was 24 years of age and was the loved daughter of Mr and Mrs Rabone. At the time, she was on two days' home leave from Stepping Hill Hospital, Stockport where she was undergoing treatment for a depressive disorder as an informal patient (ie one who was not detained under the Mental Health Act 1983 ("the MHA")). She had been admitted to the hospital as an emergency following a suicide attempt. She was assessed by the hospital as a high risk of a further suicide attempt. Mr and Mrs Rabone have always maintained that the hospital authorities should not have allowed her home leave and that they were responsible for their daughter's tragic death. They started proceedings against the Pennine Care NHS Trust ("the trust") alleging negligence and breach of the right to life protected by article 2 of the European Convention for the Protection of Human Rights and Fundamental Freedoms ("the Convention"). The trust eventually admitted negligence, but they have never admitted liability for breach of article 2. A number of issues were raised in the proceedings all of which are live in this appeal. The claim failed because the judge (Simon J) held that the operational duty implicit in article 2 did not apply in this case: there was no duty on the hospital authorities under article 2 to take reasonable steps to guard Melanie against the risk of suicide: [2010] EWHC 1827. He also held that, if there was such a duty, there had been no breach of it by the trust on the facts of this case. The Court of Appeal (Rix, Stanley Burnton and Jackson LJJ) dismissed Mr and Mrs Rabone's appeal. The only substantive judgment was given by Jackson LJ (now reported at [2011] QB 1019). They agreed that there was no operational duty, but held that if there had been such a duty, the trust would have been in breach of it. This appeal raises a number of issues, but before I come to them, I need to set out the relevant facts.

The facts
2

Melanie Rabone was born in 1981. During 2000, she was diagnosed as suffering from depression and received medical treatment. There was some improvement in the next few years, although she had intermittent episodes of anxiety. On 4 March 2005, she tried to commit suicide by tying a pillow case round her neck. She was admitted to Stepping Hill Hospital following an emergency referral by her General Practitioner. On 7 March 2005, she was diagnosed by Dr Meagher, a consultant psychiatrist, as suffering from a severe episode of a recurrent depressive disorder. On 18 March, she was assessed as having made a sufficient recovery to be discharged. She went on holiday for a week with her family to Egypt.

3

On 31 March, she cut both of her wrists with broken glass. Dr Meagher advised that she should be readmitted to the hospital. No beds were available on Warren Ward, which is part of Stepping Hill Hospital's Mental Health Services Unit. On 6 April, she was seen by Dr Cook, a senior house officer, as an outpatient. She was noted as having occasional thoughts of suicide and frequent thoughts of deliberate self-harm. On 11 April, she tied lamp flex round her neck. She was assessed by Dr Cook who noted: "Impression: severe depressive episode…..? Psychosis, High risk DSH [deliberate self-harm] and suicide".

4

Melanie agreed to an informal admission to the hospital. Dr Cook noted that, if she attempted or demanded to leave, she should be assessed for detention under the MHA. She was prescribed a course of drugs and thereafter kept under 15 minute observation. A full mental state examination was carried out on admission by Nick Tatnall, one of the ward nurses. He assessed Melanie as a moderate to high suicide risk. On 13 April, Mr Rabone expressed his grave concern to Nurse Tatnall about Melanie's condition and urged that she should not be allowed home on leave or discharged too soon. There were further conversations during the week in which Melanie's parents told the hospital staff that they were concerned about her impulsiveness and the risk of self-harm.

5

At 13.00 hrs on 18 April, Mr Rabone spoke to the ward to state his concern that Melanie was not improving and that she had expressed fleeting suicidal thoughts since her admission and had asked her parents to "get her out" of the hospital.

6

On 19 April, Dr Meagher returned from leave. He was told that Melanie was requesting home leave. On his late afternoon ward round, he met Melanie and Mrs Rabone. He agreed to allow her to have home leave for two days and nights. Mrs Rabone said that she was concerned about Melanie coming home for the weekend, but Melanie was keen to do so. She left the ward at 19.40 hrs. She spent most of the following day with her mother. In the late afternoon, she said she was going to see a friend. Some time after 17.00 hrs, she hanged herself from a tree in Lyme Park.

7

On 31 August 2005, Mr Rabone wrote to the trust criticising the decision to grant home leave on 19 April. On 13 September, the trust informed Mr Rabone that a thorough internal investigation was to be carried out, but that this would take some time. They said that his complaint would be "put on hold" until the completion of the investigation. On 15 September, they duly established a Serious Untoward Incident ("SUI") investigation.

8

On 29 September, the Coroner for the Greater Manchester South District conducted an inquest and retuned a verdict of suicide. In the summer of 2006, Mr Rabone contacted the trust on more than one occasion, expressing his concern about delays in the investigation. Its report was not sent to Mr and Mrs Rabone until 16 March 2007.

The proceedings
9

A claim form was issued on 11 August 2006. Mr Rabone claimed damages against the trust in negligence on behalf of Melanie's estate under the Law Reform (Miscellaneous Provisions) Act 1934 ("the 1934 Act"); and he and Mrs Rabone claimed damages on their own behalf for breach of article 2 of the Convention. Although the pleaded claim for breach of article 2 was for an alleged contravention of both the positive obligation to protect life and the investigative obligation under article 2, in the event the court has only been concerned with the former.

10

By its defence, the trust denied all allegations of breach. It also alleged that the human rights claim was time-barred under section 7(5) of the Human Rights Act 1998 ("the HRA"), since it had been issued more than one year after Melanie's death. By their reply, Mr and Mrs Rabone asked the court to extend the time limit by four months in the exercise of its discretion under section 7(5)(b) of the HRA.

11

The 1934 Act claim was settled in May 2008 for £7,500 plus costs. It will be necessary to examine the implications of this settlement (and the admissions that were made by the trust in May 2009) for the article 2 claim later in this judgment.

Article 2 in outline
12

Before I come to the issues that arise on this appeal, I need to set the scene by making a few introductory comments about article 2 of the Convention which provides: "Everyone's right to life shall be protected by law". These few words have been interpreted by the European Court of Human Rights ("the ECtHR") as imposing three distinct duties on the state: (i) a negative duty to refrain from taking life save in the exceptional circumstances described in article 2(2); (ii) a positive duty to conduct a proper and open investigation into deaths for which the state might be responsible; and (iii) a positive duty to protect life in certain circumstances. This latter positive duty contains two distinct elements. The first is a general duty on the state "to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life": see Oneryildiz v Turkey (2004) 41 EHRR 20 (para 89) applying, mutatis mutandis, what the court said in Osman v United Kingdom (2000) 29 EHRR 245 (para 115). The second is what has been called the "operational duty" which was also articulated by the court in Osman. This was a case about the alleged failure of the police to protect the Osman family who had been subjected to threats and harassment from a third party, culminating in the murder of Mr Osman and the wounding of his son. The court said that in "well-defined circumstances" the state should take "appropriate steps" to safeguard the lives of those within its jurisdiction including a positive obligation to take "preventative operational measures" to protect an individual whose life is at risk from the criminal acts of another (para 115). At para 116, the court went on to say that the positive obligation must be interpreted "in a way which does not impose an impossible or disproportionate burden on the authorities". In a case such as Osman, therefore, there will be a breach of the positive obligation where:

"the authorities knew or ought to have known at the time of the existence of a real and immediate risk to the life of an identified individual or individuals from the criminal acts of a third party and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk."

13

Since the date of its decision in Osman, the court has identified other circumstances in which the operational duty may...

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