ON APPEAL FROM QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MR JUSTICE SIMON
Strand, London, WC2A 2LL
B e f o r e :
LORD JUSTICE STANLEY BURNTON
LORD JUSTICE JACKSON
| (1) RICHARD RABONE
( In his own Right & as Personal Representative of the Estate of Melanie Rabone, Deceased)
|(2) GILLIAN RABONE
(In her own Right)
|- and -
|PENNINE CARE NHS TRUST
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Ms Monica Carss-Frisk QC and Ms Jane Mulcahy (instructed by Hempsons) for the Respondent
Hearing dates: 25th and 26th May 2010
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Lord Justice Jackson :
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
"Impression: Severe depressive episode .? Psychosis, High risk DSH [deliberate self harm] and suicide."
" . 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.
"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."
"A thorough internal investigation regarding Melanie's care and treatment is to be undertaken by the Trust "
He was told that:
" such a complex and detailed investigation into a serious incident warrants a robust and thorough outcome and this report will take some time to complete. "
Mr Rabone was also told that his complaint was to be put 'on hold' until the internal investigation was complete. In the event, the investigation took 18 months to complete.
"For the avoidance of doubt the claimants are continuing their claims under the Human Rights Act 1998."
"It is my opinion that on 19th April 2005 when the decision was taken to grant Ms Rabone leave from the hospital for two days, there was a moderate significant risk that Ms Rabone would commit suicide in the future. However, despite Ms Rabone committing suicide within 24 hours of being granted leave, it is my opinion, from the evidence outlined in the notes, that the risk on 19th April was not imminent. It is my opinion that on the basis of the available evidence there was a greater than 50% probability that Ms Rabone was likely to make a further suicide attempt at some point following her eventual discharge unless significant attempts were taken to minimise this risk. However I do not consider that this was likely to occur within two or three days of leaving the hospital. I would expect the majority of responsible consultant psychiatric opinion to agree with my opinion on this assessment of the risk."
"32.2.3. Dr Caplan is not aware of any reliable literature available in April 2005 which would guide clinicians with any degree of accuracy when differentiating between levels of risk at different times during that period in this case. However Dr Caplan's opinion based upon all the factors in this case is that the risk was 5% on the 19th, 10% on the 20th and 20% on the 21st. This is based upon his thirty years experience in psychiatry and his routine assessment of suicide risk in many thousands of individual cases. Dr Caplan considers that whilst he would expect a majority of consultant psychiatrist opinion to generally agree these risk estimates he would expect there to be a range of opinion on this matter."
(1) Since Melanie was a voluntary mental patient, not detained under the Mental Health Act, the NHS Trust did not have an operational obligation to her under ECHR article 2.
(2) Even if the NHS Trust did have such an operational obligation under ECHR article 2, it was not in breach of that obligation.
(3) The allegation of systemic breach of ECHR article 2, namely failure to adopt systems of work to protect the lives of patients, was rejected.
(4) The NHS Trust was not in breach of the investigatory obligation under ECHR article 2.
(5) The claimants were not victims for the purposes of section 7(7) of the Human Rights Act.
(6) It was not equitable to extend the one-year time limit for bringing the human rights claims under section 7(5) of the Human Rights Act.
(7) If the claimants had succeeded in their claims, the proper award would have been £1,500 for each claimant.
(1) The judge was wrong to hold that the NHS Trust did not have an operational obligation under ECHR article 2.
(2) The risk to Melanie's life was "immediate" on 19th April 2005; therefore the judge was wrong to hold that there was no breach of the operational obligation under ECHR article 2.
(3) The judge was wrong to hold that there was no breach of the investigatory obligation under ECHR article 2.
(4) The judge was wrong to hold that the claimants did not have victim status for the purposes of the Human Rights Act.
(5) The judge's refusal to exercise his discretion to extend time under section 7(5) of the Human Rights Act was perverse.
(6) The award of £1,500 for each of the claimants, in the event that they succeed on their human rights claims, would be too low.
"115. The Court notes that the first sentence of Article 2(1) enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction. It is common ground that the State's obligation in this respect extends beyond its primary duty to secure the right to life by putting in place effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions. It is thus accepted by those appearing before the Court that Article 2 of the Convention may also imply in certain well-defined circumstances a positive obligation on the authorities to take preventative operational measures to protect an individual whose life is at risk from the criminal acts of another individual. The scope of this obligation is a matter of dispute between the parties.
116. For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities. 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. Another relevant consideration is the need to ensure that the police exercise their powers to control and prevent crime in a manner which fully respects the due process and other guarantees which legitimately place restraints on the scope of their action to investigate crime and bring offenders to justice, including the guarantees contained in Articles 5 and 8 of the Convention.
In the opinion of the Court where there is an allegation that the authorities have violated their positive obligation to protect the right to life in the context of their above-mentioned duty to prevent and suppress offences against the person, it must be established to its satisfaction 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 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 Court does not accept the Government's view that the failure to perceive the risk to life in the circumstances known at the time or to take preventive measure to avoid that risk must be tantamount to gross negligence or wilful disregard of the duty to protect life. Such a rigid standard must be considered to be incompatible with the requirements of Article 1 of the Convention and the obligations of Contracting States under that Article to secure the practical and effective protection of the rights and freedoms laid down therein, including Article 2. For the Court, and having regard to the nature of the right protected by Article 2, a right fundamental in the scheme of the Convention, it is sufficient for an applicant to show that the authorities did not do all that could be reasonably expected of them to avoid a real and immediate risk to life of which they have or ought to have knowledge. This is a question which can only be answered in the light of all the circumstances of any particular case."
"82. However, such an obligation must be interpreted in a way which does not impose an impossible or disproportionate burden on the authorities, bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices which must be made in terms of priorities and resources."
"Admittedly the first sentence of Article 2 enjoins the State not only to refrain from the intentional and unlawful taking of life, but also to take appropriate steps to safeguard the lives of those within its jurisdiction (see L.C.B v United Kingdom (1999) 27 EHRR 212, para.36). 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 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."
"108. We do not accept Mr Fitzgerald's submission that the principles in the custody cases, which have been analysed in some detail in the Amin  1 AC 653 and Middleton  2 AC 182 cases, apply here because Mr Takoushis would have been detained if the hospital had been aware that he was about to leave the hospital. In our opinion there is an important difference between those who are detained by the state and those who are not. Mr Takoushis was not."
"The fact that Mrs Savage was not only a patient, but a detained patient, is also relevant to the authorities' obligations under article 2. Any auction in the comparative vulnerability of prisoners, voluntary patients, and detained patients would be as unedifying as it is unnecessary. Plainly, patients, who have been detained because their health or safety demands that they should receive treatment in the hospital, are vulnerable. They are vulnerable not only by reason of their illness which may affect their ability to look after themselves, but also because they are under the control of the hospital authorities. Like anyone else in detention, they are vulnerable to exploitation, abuse, bullying and all the other potential dangers of a closed institution. Mutatis mutandis, the principles in the case law which the European court has developed for prisoners and administrative detainees must apply to patients who are detained.
The hospital authorities are accordingly responsible for the health and well being of their detained patients. Their obligations under Article 2 include an obligation to protect those patients from self-harm and suicide."
"101. There is one further point. For the reasons given earlier, it is difficult to distinguish between different classes of people deprived of their liberty by the state. Mental patients may or may not also be prisoners. But it could be said that it is also difficult to distinguish between different classes of mental patients. Some patients, like Mrs Savage, are deprived of their liberty by the law. Some patients, like Mr L (see R v Bournewood Community and Mental Health NHS Trust, Ex p L  1 AC 458) are deprived of their liberty by their own condition. They may lack the capacity voluntarily to decide to be in hospital and may well be prevented from leaving should they wish to do so. These so-called "Bournewood" patients will shortly be protected by new procedures inserted in the Mental Capacity Act 2005 by the Mental Health Act 2007. Some patients, although they have entered hospital quite willingly, are well aware that they might be made the subject of compulsory powers at any time. This is in fact what happened with Mrs Savage, who entered hospital as an informal patient on 16 March 2004. The following day she was first detained under section 5(4), which allows a nurse to authorise the detention of an in-patient for up to six hours until a doctor can arrive, and then under section 3, which provides for detention on the application of two doctors for up to six months (and renewable thereafter). Is it possible, then, to draw any distinction between the state's protective duties towards all mental patients, whether de iure, de facto or potentially deprived of their liberty? And what about patients who are de iure deprived of their liberty but in fact given leave of absence to go home, as was Mrs Savage on several occasions during her time in hospital? Indeed, what is the extent of the state's duty to protect all people against an immediate risk of self-harm?"
"65. It is trite law that, in certain circumstances, article 2 imposes a positive obligation on states to protect the lives of those within their jurisdiction. At its most fundamental, as the European court held in Osman v United Kingdom (1998) 29 EHRR 245, para 115, article 2 requires a state to put in place "effective criminal law provisions to deter the commission of offences against the person backed up by law-enforcement machinery for the prevention, suppression and sanctioning of breaches of such provisions". In Scotland there are, of course, criminal laws to deter the commission of offences against the person, police forces to prevent such crimes and to detect wrongdoers, and courts to impose penalties. In this way the United Kingdom complies with its basic positive obligation under article 2 with respect to people in Scotland.
66. 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. The authorities must therefore take general measures to employ and train competent staff and to adopt appropriate systems of work that will protect the lives of the people for whose welfare they have made themselves responsible. These are general obligations, not directed at any particular individual, but designed to protect all those in the authorities' care. If, however, an authority fails to fulfil one of these obligations and someone in their care dies as a result, there will be a violation of his or her article 2 Convention rights. Authorities which are under these general obligations to persons in their care may also come under a distinct, additional, "operational" obligation to take special preventive measures to protect a particular individual in their care. That operational obligation arises only where the authority knows, or ought to know, of a "real and immediate risk" to the life of the particular individual. I refer generally to the discussion of these matters in the speeches in Savage v South Essex Partnership NHS Foundation Trust (MIND intervening)  1 AC 681."
"In order to comply with article 2, the state must set up a system which involves a practical and effective investigation of the facts. While we agree that the cases do not support the conclusion that there is an independent obligation on the state to investigate every case in which it is arguable that there was, for example, medical negligence, the system must provide for a practical and effective investigation."
"In the context of her history and impulsive behaviour, the Panel took the view that an inpatient bed, if necessary outside the Borough, should have been sought on 31st March 2005. In the context of stockpiling specific items in her car to poison herself with carbon monoxide which came to light when assessed on 8th April 2005, this should have raised serious concerns over whether it was safe to continue to manage her as an outpatient in the context of her past history and risk assessment. We commend the detailed clerking risk assessment and management plan by the SHO from Miss R's nominated medical team, following her readmission on 11th April 2005. In this context in concert with family concerns and notwithstanding an apparent improvement in her clinical condition, we consider the granting of the period of overnight leave to have been premature."
(1) A person who claims that a public authority has acted (or proposes to act) in a way which is made unlawful by section 6(1) may
(a) bring proceedings against the authority under this Act in the appropriate court or tribunal, or
(b) rely on the Convention right or rights concerned in any legal proceedings,
but only if he is (or would be) a victim of the lawful act.
(7) For the purposes of this section, a person is a victim of an unlawful act only if he would be a victim for the purposes of Article 34 of the Convention if proceedings were brought in the European Court of Human Rights in respect of that act."
Article 34 of ECHR provides:
"The Court may receive applications from any person, non-governmental organisation or group of individuals claiming to be the victim of a violation by one of the High Contracting Parties of the rights set forth in the Convention or the protocols thereto. The High Contracting Parties undertake not to hinder in any way the effective exercise of this right."
(i) Whether the parents of the deceased can be "victims"
"The Court recalls at the outset that where a violation of the right to life is alleged, the Convention organs have accepted applications from relatives of the deceased. For example applications have been brought by a deceased's wife (Aytekin v Turkey, judgment of 23 September 1998, Reports of Judgments and Decisions 1998-VII), a deceased's mother (Ηiηek v Turkey, no. 25704/94, 27 February 2001, BAILII  ECHR 108), a deceased's father (Hugh Jordan v the United Kingdom, no.24746/94, ECHR 2001-III (extracts) BAILII  ECHR 327) and a deceased's brother and sister (see respectively Ergi v Turkey, judgment of 28 July 1998, Reports 1998 IV and Semsi Φnen v Turkey, no. 22876/93, 14 May 2002, BAILII  ECHR 445). Therefore, the applicants in the present application can claim to be victims of the alleged violations under Article 2 of the Convention. "
The court made a similar statement of principle in Micallef v Malta (2010) 50 EHRR 37.
(ii) Whether the parents forfeit "victim" status as a result of bringing and settling the claim in negligence
"The Court does not exclude the possibility that this general rule might be subject to an exception when the national authorities have acknowledged either expressly or in substance, and then afforded redress for, the breach of the Convention. In such circumstances, to duplicate the domestic process with proceedings before the Commission and the Court would hardly be compatible with the subsidiary character of the machinery of protection established by the Convention. The Convention leaves to each Contracting State, in the first place, the task of securing the enjoyment of the rights and freedoms it enshrines. This subsidiary character is all the more pronounced in the case of States which have incorporated the Convention into their domestic legal order and which treat the rules of the Convention as directly applicable."
"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 and crucially important avenue for shedding light on the extent of the doctor's responsibility for their son's death. Had the civil action proceeded the applicants would have been entitled to have a full adversarial hearing on their allegations of negligence, to subject the doctors concerned to cross-examination under oath and obtain discovery of all documents relevant to their claim. The Court also considers that the applicants could have made their grievance about the falsification of their son's medical records a live issue before the court. Indeed, there is no reason to doubt that it would not have dominated the pleadings, having regard to its centrality to the negligence allegation and its relevance to the level of damages which the court may have awarded.
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."
"The Court recalls, however, that an individual can no longer claim to be a victim of a violation of the Convention when the national authorities have acknowledged, either expressly or in substance, the breach of the Convention and afforded redress as appropriate (see, amongst many authorities, Eckle v Germany, judgment of 15 July 1982, Series A no.51, & 66)."
"In the instant case, it is to be noted that the applicant is excluded from the scope of the Fatal Accidents Act 1976 since she is not a "dependant". Furthermore, the most that could be recovered under the Law Reform (Miscellaneous Provisions) Act 1934 on behalf of the deceased's estate would have been funeral expenses. It must be concluded that the applicant had no prospect of obtaining compensation for non-pecuniary damage suffered by her if, ultimately, a court were to rule in her favour. The Court would add that the impossibility to recover compensation for non-pecuniary damage would almost certainly have had a negative bearing on any application by her for legal aid to take civil proceedings against the police."
When read in context, this paragraph does not seem to me to be addressing the question of victim status. It is part of the reasoning which establishes a substantive breach of article 13, namely that the domestic remedies are inadequate.
"The issue as to whether a person may still claim to be the victim of an alleged violation of the Convention essentially entails on the part of the Court an ex post facto examination of his or her situation. As it has already held in other length of proceedings cases, the question whether he or she has received reparation for the damage caused comparable to just satisfaction as provided for under Art.41 of the Convention is an important issue. It is the Court's settled case law that where the national authorities have found a violation and their decision constitutes appropriate and sufficient redress, the party concerned can no longer claim to be a victim within the meaning of Art.34 of the Convention."
"In the aforementioned Eckle judgment, the Court indeed held that a decision or measure favourable to the applicant was not sufficient to deprive him of his status as a "victim" unless the national authorities acknowledged, either expressly or in substance, and then afforded redress for, the breach of the Convention."
"The Court reiterates that a decision or measure favourable to an applicant is not in principle sufficient to deprive that individual of his or her status as a "victim" unless the national authorities have acknowledged, either expressly or in substance, and then afforded redress for the breach of the Convention (see Nikolova and Velichkova v Bulgaria, no. 7888/03, § 49, 20 December 2007, and the case cited therein.)"
(i) Where the applicant brings a claim in his domestic courts in respect of matters which form the basis of his Convention claim and succeeds, that success may deprive him of the status of victim under article 34.
(ii) In order to ascertain whether the settlement or the award of the domestic court has that consequence, it is necessary to consider all the circumstances of the domestic litigation and to determine whether it affords effective redress for the Convention breach.
(iii) In particular, it is necessary to consider (a) whether liability for the offending conduct has been either accepted by the state authority or found proved by the court and (b) the adequacy of any compensation awarded by the domestic court. If the compensation awarded falls substantially short of the pecuniary losses suffered by the applicant, that is a factor pointing against treating the domestic award as effective redress.
Lord Justice Rix:
Lord Justice Stanley Burnton: