UKSC 2
On appeal from:  EWCA Civ 698
Rabone and another (Appellants) v Pennine Care NHS Foundation Trust (Respondent)
JUDGMENT GIVEN ON
8 February 2012
Heard on 7 to 9 November 2011
Jenni Richards QC
(Instructed by Pannone LLP)
Monica Carss-Frisk QC
(Instructed by Hempsons)
|Interveners (INQUEST, JUSTICE, Liberty and Mind)
Paul Bowen and Alison Pickup
(Instructed by Bindmans LLP)
Article 2 in outline
"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."
The first issue: can an operational duty under article 2 be owed to a hospital patient who is mentally ill, but is not detained under the MHA?
"had a positive obligation under article 2 of the Convention to take such preventive operational measures as were necessary and sufficient to protect those individuals, especially as they themselves had set up the site and authorised its operation, which gave rise to the risk in question."
"in a situation where an individual threatens to take his or her own life in plain view of state agents and, moreover where this threat is an emotional reaction directly induced by the state agents' actions or demands, the latter should treat this threat with the utmost seriousness as constituting an imminent risk to that individual's life, regardless of how unexpected that threat might have been."
"The court accepts that it cannot be excluded that the acts and omissions of the authorities in the field of health care policy may in certain circumstances engage their responsibility under the positive limb of article 2. However, where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent coordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life."
Thus to use the language of Lord Rodger in Savage, if the hospital authorities have performed their obligation to adopt appropriate general measures for the protection of the lives of patients in hospitals (for example, by ensuring that competent staff are recruited, high professional standards are maintained and suitable systems of work are put in place), casual acts of negligence by members of staff will not give rise to a breach of article 2.
"63. On the law as it stands, I do not believe that health trusts have the article 2 operational obligation to voluntary patients in hospital, who are suffering from physical or mental illness, even where there is a 'real and immediate' risk of death. In my view, it is not possible to separate such patients into categories and to say that the operational obligation is owed to some categories of voluntary patients, but not others. A patient undergoing major heart surgery may be at just as great a risk of death as a schizophrenic patient with suicidal ideation.
64. It is important for court users (patients, NHS trusts, legal advisers and others) that legal obligations and liabilities should be clearly defined and understood. I do not believe that it either is or should be the law that voluntary patients fall into different categories, some of whom (or some of whose families) can claim under article 2 but others of whom cannot. The remedy for clinical negligence, even where 'real and immediate' risk of death has been disregarded, is an action in negligence. "
"The obligation of the United Kingdom under article 2 goes wider, however, In particular, where a state has assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health legislation, or conscripting him into the armed forces, the state assumes responsibility for that individual's safety. So in these circumstances police authorities, prison authorities, health authorities and the armed forces are all subject to positive obligations to protect the lives of those in their care. "
"Since the pioneering paper by Gilboy and Schmidt in 1979, it has been recognised that a significant proportion of [informal] admissions are not 'voluntary' in any meaningful sense: something in the range of half of the people admitted voluntarily feel coerced into the admission; it is just that the coercion is situational, rather than using legal mechanisms. "
"The circumstances in Powell's case …were quite different from circumstances where a patient presents a real and immediate risk of suicide. Therefore, the decision of the European court, which I respectfully consider was correct, provides no guidance on the problem before the House."
"65. Neither Powell's case…. nor Dodov's case (2008) 47 EHRR 41 provides any basis whatever for the proposition that, as a matter of principle, medical staff in a mental hospital can never be subject to an 'operational' duty under article 2 to take steps to prevent a (detained) patient from committing suicide—even if they know or ought to know that there is a real and immediate risk of her doing so. The obvious response to that proposition is: Why ever not?...."
The second issue: was there a "real and immediate" risk to the life of Melanie on 19 April 2005 of which the trust knew or ought to have known and which they failed to take reasonable steps to avoid?
The third issue: were Mr and Mrs Rabone "victims" within the meaning of article 34 of the Convention?
The fourth issue: did Mr and Mrs Rabone lose their victim status as a result of the settlement of their negligence claim?
The effect of the settlement
"Of greater significance for the court is the fact that the applicants settled their civil action in negligence against the responsible health authority and did not pursue individual claims against the doctors. In the court's opinion, the applicants by their decision closed another crucially important avenue for shedding light on the extent of the doctors' responsibility for their son's death…..
Having regard to the above considerations the court finds that it is not open to the applicants to complain under article 2 of the Convention that there was no effective investigation into their son's death. In its opinion, where a relative of a deceased person accepts compensation in settlement of a civil claim based on medical negligence he or she is in principle no longer able to claim to be a victim in respect of the circumstances surrounding the treatment administered to the deceased person or with regard to the investigation carried out into his or her death" (emphasis added).
"I have seen a copy of the report provided by my Trust's independent psychiatric expert, Dr Caplan, concerning the standard of care provided to your daughter Melanie during her admission to our Trust's unit in Stepping Hill Hospital in April 2005. The Trust accepts Dr Caplan's view that the decision to allow Melanie to have two days leave on 19 April fell below the standard of care which we owed to her at that time.
Having learned of Dr Caplan's view and in addition to the condolences I expressed to you in September 2005, I wanted to write personally to you on behalf of the Trust to say how deeply sorry I am for the error we made on 19 April 2005.
I realise what deep grief Melanie's death has caused to you and I know that this apology will not undo what has happened, but I wanted you to know how sorry we are for the error we have made."
"In the present case there have been numerous findings that the applicant's son was subject to inadequate care while under the responsibility of the council. The internal complaints procedure by the Independent Investigator found defects in procedures as did the council's Senior Safety Officer. Furthermore, the council pleaded guilty to an offence under the Health and Safety at Work Act 1974 for failure so far as reasonably practicable to ensure Malcolm's safety and was fined a substantial amount.
The court would also note that the applicant settled her civil claims for damages against the council on the basis of damages and a formal apology to the effect that their failure in standards in care and safety had resulted in the death of her son.....
Having regard to the considerations above and the fact that the applicant settled her claims in civil proceedings accepting compensation and an apology, the court finds that she may no longer, in these circumstances, claim to be a victim of a violation of the Convention..."
The fifth issue: limitation
"However, in my judgment, the decisive factor is that, at this stage of the trial process, I am in a position to conclude that there is no merit in the claims to which this issue is relevant. In addition, the contents of the SUI Report, the formal acknowledgement of its negligence by the Trust and its letter of apology are very substantial matters to weigh in the balance when considering whether it would be right to extend time."
For these reasons, he refused to extend time. The Court of Appeal agreed that the fact that the claim was doomed to failure was "the decisive factor". They said that, if the claim were otherwise well-founded, they would have been inclined to extend time.
The sixth issue: quantum of damages
"If the issue were to arise, I would incline to the view that the judge's award of £3,000 (£1,500 for each claimant) was too low. Looking at the sums awarded by the Strasbourg court in other cases, I would have proposed an award of £10,000 (£5,000 for each claimant). In my view, that is a more appropriate nominal sum. It also reflects what would have been the claimant's entitlement under the Fatal Accidents Act, if Melanie would have been under 18."
". . . where a contracting state had made adequate provision for securing high professional standards among health professionals and the protection of the lives of patients, it cannot accept that matters such as error of judgment on the part of a health professional or negligent co-ordination among health professionals in the treatment of a particular patient are sufficient of themselves to call a contracting state to account from the standpoint of its positive obligations under article 2 of the Convention to protect life." (emphasis supplied)
But it would be wrong to see the House of Lords in Savage as carving out an exception to a general rule that the State is not responsible for the deaths of hospital patients. The House was trying to deduce the principles applicable to when this so-called "operational" duty might arise from such Strasbourg jurisprudence as there is and to decide, in the light of those principles, whether it did so in that case.
"82. The court observes at the outset that article 2 imposes both negative and positive obligations on the State. The negative obligation prohibits the intentional and unlawful taking of life by agents of the state. The positive obligation . . . requires that they take appropriate steps to safeguard the lives of those within their jurisdiction (see LCB v United Kingdom (1999) 27 EHRR 212, para 36; and Edwards v United Kingdom (2002) 35 EHRR 19, para 54). This implies, in appropriate circumstances, a positive obligation on the authorities to take preventive operational measures to protect an individual whose life is at risk. Although the court originally explained that this positive obligation arose when there was a risk to life 'from the criminal acts of another individual' (see Osman v United Kingdom (2000) 29 EHRR 245 at para 115), it has since made it clear the positive obligations under article 2 are engaged in the context of any activity, whether public or not, in which the right to life may be at stake (see Öneryildiz v Turkey (2005) 41 EHRR 20, para 71).
83. For the court to find a violation of the positive obligation to protect life, it must be established that 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 and that they failed to take measures within the scope of their powers which, judged reasonably, might have been expected to avoid that risk. The court reiterates that the scope of any positive obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, including in respect of the operational choices which must be made in terms of priorities and resources. Accordingly, not every claimed risk to life can entail for the authorities a Convention requirement to take operational measures to prevent that risk from materialising." (emphasis supplied.)
"88. . . . The obligation on High Contracting Parties under article 1 of the Convention to secure to everyone within their jurisdiction the rights and freedoms defined in the Convention, taken together with article 3, requires States to take measures designed to ensure that individuals within their jurisdiction are not subjected to torture or inhuman or degrading treatment, including such ill-treatment administered by private individuals (A v United Kingdom (1999) 27 EHRR 611, para 22). These measures should provide effective protection, in particular, of children and other vulnerable persons, and include reasonable steps to prevent ill-treatment of which the authorities had or ought to have had knowledge (mutates mutandis, Osman v United Kingdom (2000) 29 EHRR 245, para 116). Thus a failure, over four and a half years, to protect children from serious neglect and abuse of which the local authority were aware disclosed a breach of article 3 of the Convention in the case of Z v United Kingdom (2002) 34 EHRR 3."
In that case, the court was satisfied that the social services in Scotland should have been aware of the risk of sexual abuse to these children from a particular individual yet they failed to take any steps to discover the extent of the problem and protect the children from further abuse. Thus, "proper and effective management of their responsibilities might, judged reasonably, have been expected to avoid, or at least, minimise the risk of the damage suffered" (para 100). Accordingly there was a breach of article 3.