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URL: http://www.bailii.org/ew/cases/EWCA/Civ/2010/698.html
Cite as: [2010] MHLR 413, [2010] PIQR Q4, [2010] Med LR 376, [2010] Inquest LR 105, [2010] EWCA Civ 698, [2011] PTSR 1028, [2011] 3 WLR 603, [2011] QB 1019, (2010) 115 BMLR 191

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		Neutral Citation Number: [2010] EWCA Civ 698
		Case No: A2/2009/2032

COURT OF APPEAL (CIVIL DIVISION)
ON APPEAL FROM QUEENS BENCH DIVISION
MANCHESTER DISTRICT REGISTRY
MR JUSTICE SIMON
6MA15087

Royal Courts of Justice
Strand, London, WC2A 2LL

21/06/2010

B e f o r e :

LORD JUSTICE RIX
LORD JUSTICE STANLEY BURNTON
and
LORD JUSTICE JACKSON
____________________

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

____________________

(Transcript of the Handed Down Judgment of
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____________________

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: 25th and 26th May 2010
____________________

HTML VERSION OF JUDGMENT
____________________

Lord Justice Jackson :

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

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").

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").

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.

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.

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".

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

PART 2. THE FACTS

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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.

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.

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.

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."

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.

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.

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.

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.

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 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.

On 29^th September 2005, there was an Inquest into Melanie's death. Dr Meagher gave evidence and Mr Rabone addressed the Coroner. At the conclusion of the hearing the Coroner returned a verdict of suicide.

Following its letter of 15^th September the NHS Trust established a Serious Untoward Incident ('SUI') Investigation. The members of the investigation panel were Dr G McDade (a Consultant Psychiatrist), Ms Susan Borodinsky (from the Trust's Risk Management Department) and Mr Stan Boaler (the Locality Manager for the Rochdale Borough Area). One of the questions that the panel came to consider during the course of its protracted investigation was: "Who did the risk assessment on 19 April, and where is it?"

In the summer of 2006 Mr Rabone contacted the NHS Trust on more than one occasion, expressing justifiable concern about delays in the investigation. By this time Mr Rabone was also concerned about the suitability of Dr Meagher to have been practising psychiatry, in view of complaints which had been made against him to various professional bodies.

On 11^th August 2006, having taken legal advice, the claimants issued the present proceedings.

PART 3. THE PRESENT PROCEEDINGS

By a claim form issued on 11^th August 2006 in the Manchester County Court the claimants claimed against the NHS Trust damages under the Law Reform Act and the Human Rights Act. Both claimants claimed in their own right, as the parents of Melanie. Mr Rabone, the first claimant, also claimed as administrator of Melanie's estate.

In relation to the claim under the Law Reform Act, the principal allegation of negligence was that the hospital, in particular Dr Meagher, was negligent in giving Melanie two days home leave on 19^th April 2005. That negligence foreseeably resulted in Melanie's suicide.

In relation to the claim under the Human Rights Act, it was alleged that the defendant, the NHS Trust, had acted contrary to article 2 of ECHR, in that (a) the defendant's conduct had caused Melanie's death and (b) the defendant had failed to conduct or permit an effective investigation into Melanie's death. The claimants further alleged that they were victims of those breaches and were entitled to recover damages under section 7 of the Human Rights Act.

The defendant, by its defence, denied all allegations of breach. The defendant further alleged that the claim under the Human Rights Act was time barred under section 7(5) of that Act, having been issued more than a year after Melanie's death. The claimants, by their reply, invited the court to extend the time limit by four months in the exercise of its discretion under section 7(5)(b).

The claim under the Law Reform Act was settled in May 2008. The defendant agreed to pay £7,500 plus costs in satisfaction of the claim brought on behalf of Melanie's estate. In round figures that sum represented £2,500 for funeral expenses and £5,000 for Melanie's pain and suffering. The consent order embodying that settlement included the following sentence:

"For the avoidance of doubt the claimants are continuing their claims under the Human Rights Act 1998."

Witness statements and expert reports were duly exchanged between the parties. A certain amount of common ground emerged between the experts. Both Dr Britto, the claimant's expert psychiatrist, and Dr Caplan, the defendant's expert psychiatrist, considered that it was inappropriate to grant Melanie home leave on 19^th April. Since the judge preferred the evidence of Dr Caplan, in so far as the experts differed, I will focus upon his evidence. In his report Dr Caplan wrote:

"It is my opinion that on 19^th 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 19^th 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."

The two experts then met to discuss the case. One item on the agenda was the degree of risk that Melanie would commit suicide if given two days home leave on 19^th April 2005. According to the minute of the experts' meeting (which was drawn up and dated 15^th May 2009), Dr Britto opined that the risk was "severe". Dr Caplan was more specific in his assessment. He wrote:

"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 19^th, 10% on the 20^th and 20% on the 21^st. 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."

In view of the degree of consensus reached between the experts, the issues in the litigation narrowed. By its solicitors' letter dated 6^th May 2009 the defendant admitted that it had breached its common law duty of care to Melanie by granting her two days home leave on 19^th April 2005. On the following day the chief executive of the defendant sent a letter of apology to the claimants for the error which the hospital had made, leading to Melanie's death.

On Monday 18^th May 2009 the action (which had by now been transferred from the county court to the High Court) came on for trial before Mr Justice Simon in Manchester. The trial lasted for a week. The judge delivered his reserved judgment on 23^rd July 2009. Taking matters shortly, the judge held as follows:

(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.

The claimants were aggrieved by that decision. Accordingly they have appealed to the Court of Appeal.

PART 4. THE APPEAL TO THE COURT OF APPEAL

By an appellant's notice, the date of which is not apparent, the claimants appealed against Mr Justice Simon's judgment on six grounds, namely:

(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 19^th 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.

It can be seen from the foregoing that the claimants do not appeal against the judge's rejection of their claims for systemic breach of ECHR article 2.

By an order dated 23^rd October 2009 Lady Justice Smith granted permission to appeal on grounds 1, 2, 4, 5 and 6. She directed that any application to renew on ground 3 should be made to the full court at the hearing of the appeal.

The claimants intimated an intention to renew their application for permission to appeal on ground 3. The hearing of the claimants' appeal, coupled with their application to renew on ground 3, took place on 25^th and 26^th May 2010. Counsel for both parties presented their cases with clarity. For my part, I am most grateful for the assistance of counsel on both sides.

I shall now address the six grounds of appeal in the order set out above.

PART 5. THE FIRST GROUND OF APPEAL – OPERATIONAL OBLIGATION

Article 2 of ECHR provides that everyone's right to life shall be protected by law. This article imposes a range of obligations on state authorities. The Strasbourg court explored the nature of those obligations in Osman v UK (2000) 29 EHRR 245. In Osman the family of a schoolboy was attacked by a teacher, who had become obsessed with the boy. That boy was injured and his father was killed. The court rejected the family's claim for breach of article 2. At paragraphs 115 to 116 the court explained the obligations imposed by article 2 as follows:

"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."

The court in that passage refers to "well-defined circumstances" in which article 2 imposes "a positive obligation on the authorities to take preventive operational measures" to protect the life of an individual. I shall refer to the positive obligation which arises in such circumstances as the "operational obligation".

In Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50; [2009] 1 AC 225 the House of Lords applied the principles established in Osman. In Van Colle a prosecution witness shortly before trial was murdered by the accused. The parents of the deceased alleged that the failure of the police to protect their son was a breach of article 2. Their claim failed in the House of Lords because the police could not reasonably have anticipated a "real and immediate risk" to the deceased's life. The House recognised, however, that if the police had possessed fuller knowledge, they would have had an operational obligation to take all reasonable steps to protect the deceased's life.

The Strasbourg court has held on a number of occasions that the operational obligation arises when a person is held in custody and there is a specific risk to his life. In Keenan v UK (2001) 33 EHRR 38 a young man who was mentally ill committed suicide in Exeter Prison. The Strasbourg court held that the operational obligation arose in that case. However, there was no breach of the operational obligation because the prison authorities had taken all reasonable precautions to prevent suicide. At paragraph 90 the court noted the special position of prisoners, commenting "persons in custody are in a vulnerable position and … the authorities are under a duty to protect them". In Renolde v France (2009) 48 EHRR 42 a prisoner with mental health problems committed suicide during pre-trial detention. The Strasbourg court noted the vulnerability of persons in custody, especially those who were mentally ill, and re-affirmed the duty of state authorities to protect such persons. In relation to the operational obligation, the court stated at paragraph 82:

"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."

State authorities have a similar positive obligation to prevent foreseeable suicides amongst conscripts: see Kilinc v Turkey (Application No 40145/98, BAILII [2005] ECHR 367) and Ataman v Turkey (Application No 46252/99, BAILII [2006] ECHR 481).

It might be thought that hospital authorities owe a positive obligation under article 2 to protect the lives of patients who are in their care. After all such patients are in a peculiarly vulnerable situation. They are entirely dependent upon the hospital for medical treatment and nourishment. Indeed, such patients are sometimes unconscious, for example during operations under general anaesthetic. However, the Strasbourg court has held that the positive obligation does not generally arise in the hospital context. In Powell v UK (2000) 30 EHRR CD 362 the applicants' ten-year-old son died from Addison's disease, after being discharged from hospital. The applicants' claim for breach of article 2 was rejected. In relation to the operational obligation, the court stated:

"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."

As a matter of policy, the approach in Powell is readily understandable. The state has an obligation to provide an effective health service, in which high standards are maintained. However, once such a health service has been provided by the state, the individual's remedy for professional negligence or shortcomings in any individual case is by way of litigation against the health authority concerned. There is no obvious reason why every fatal accident claim against a hospital should generate a parallel claim under ECHR article 2. The objective of the ECHR is to ensure that certain minimum human rights standards are maintained in European states, not to duplicate all awards of damages in fatal accident cases. A similar theme emerges from some of the authorities on "victim" status, which will be discussed in Part 8 below.

I turn now to patients with mental illness. Where such a patient is detained under section 3 of the Mental Health Act, he is being held in custody by an authority acting on behalf of the state. There is an obvious analogy between such a patient and a vulnerable prisoner. The state has an operational obligation towards all such persons who are held in custody. In R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440; [2006] 1 WLR 461 a schizophrenic who was preparing to jump off a river bridge was brought into hospital by the emergency services. After being seen by a nurse, he slipped out of the hospital waiting room, returned to the river and jumped to his death. The deceased's family made a claim under the "investigatory" limb of article 2 (which will be discussed in Part 7 below). The claim succeeded in the Court of Appeal. However, the court noted that there was an important distinction between cases where the patient was compulsorily detained and cases (such as Takoushis) where he was not. In paragraph 108 Sir Anthony Clarke MR, delivering the judgment of the court, said this:

"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 [2004] 1 AC 653 and Middleton [2004] 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."

In Savage v South Essex NHS Trust [2008] UKHL 74; [2009] 1 AC 681 a patient with paranoid schizophrenia, who was detained under section 3 of the Mental Health Act, succeeded in absconding and committing suicide. The patient's daughter made a claim for breach of the deceased's right to life under ECHR article 2. Following the trial of a preliminary issue before Swift J, the Court of Appeal held that a duty to take steps to prevent a detained mental patient from committing suicide arose if the authorities knew or ought to have known that there was a real and immediate risk of her doing so. The House of Lords dismissed the defendant's appeal. All five members of the Appellate Committee held that the health trust had an operational obligation towards mental patients with suicidal tendencies who were detained. The question upon which I must now focus is whether the fact of formal detention under section 3 of the Mental Health Act was critical to the House of Lords' decision.

Lord Scott at paragraph 9 did not accept that there was a stark distinction between "custody" cases and other cases, but he was focussing in this paragraph upon the standard of the duty, rather than the question when an operational obligation arose. In paragraph 10, relying upon Powell, he noted that provided (a) there is no serious systemic fault and (b) there is proper investigation, a negligent medical error causing death will not necessarily constitute a breach of article 2(1). Lord Scott went on to state that the state had no general obligation to prevent people (other than those in custody) from committing suicide.

Lord Rodger attached significance to the fact that Mrs Savage was a detained patient. In paragraph 49 he said:

"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."

There was some argument at the hearing of the present appeal as to what the second sentence in that passage means. In my view, Lord Rodger was saying that the "auction" in comparative vulnerability was unnecessary because the fact of compulsory detention made a critical difference. On the other hand, I recognise that in the "summary" section of his judgment Lord Rodger does not expressly limit the operational obligation to detained patients. I must therefore acknowledge that the correct interpretation of Lord Rodger's speech on this point is not entirely straightforward.

Baroness Hale noted at paragraph 91 that "ordinary medical negligence" which results in the death of a patient is not a breach of article 2. In paragraphs 97 to 100 she went on to note the special position of patients who are detained under the Mental Health Act. An operational duty is owed to such patients, if there is a "real and immediate risk to life". Baroness Hale then went on to discuss obiter the position of mental patients who are not detained. In paragraph 101she said:

"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 [1999] 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?"

Baroness Hale then stated that the House did not have to answer those questions in the instant case and they should not try to do so. That, of course, was because Mrs Savage was a detained patient. In the present case, however, Melanie was not a detained patient. Therefore the principal unanswered question, which Baroness Hale identified and then left open, now does arise and must be answered by this court.

Lord Walker and Lord Neuberger agreed with Lord Rodger and Baroness Hale.

In Mitchell v Glasgow City Council [2009] UKHL 11; [2009] 1 AC 874 M and D were neighbours, both being secure tenants of the council. D evinced great hostility to M. Following a meeting at which the council warned D that his behaviour could result in eviction, D killed M. M's widow and daughter contended that the attack was foreseeable, having regard to D's past conduct and threats of murder. The widow's and daughter's claims under ECHR article 2 were struck out. At paragraphs 65 to 66 Lord Rodger said:

"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) [2009] 1 AC 681."

Having reviewed the authorities and considered counsel's submissions, I have come to the conclusion that detention under the Mental Health Act makes a critical difference. It is clear that ECHR article 2 does not impose upon the state an operational obligation towards all persons who are at "real and immediate risk" of death. For example, state officials are not obliged to stop those with suicidal intent from travelling to Switzerland: see Lord Scott in Savage at paragraph 10. In addition to the "real and immediate risk" of death, there must be some additional element before state authorities come under the operational obligation. Examples of the additional element are (a) involvement of the police with a criminal who is liable to kill the individual concerned or (b) the fact that the individual concerned is detained by the state.

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.

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 a "real and immediate" risk of death has been disregarded, is an action in negligence.

On 19^th April 2005 Melanie was not detained under section 3 of the Mental Health Act. She was a voluntary patient and was allowed to return to her parental home on that day. The fact that Melanie might have been detained if events had taken a different course is not, in my view, relevant. She cannot be regarded as a detained patient on that account.

For these reasons, which are essentially the same as those of the judge, I conclude that the NHS Trust did not have an operational obligation to Melanie under ECHR article 2.

I would therefore dismiss the first ground of appeal.

PART 6. THE SECOND GROUND OF APPEAL – BREACH OF THE OPERATIONAL OBLIGATION

If I am wrong in Part 5 above, the question will arise as to whether the NHS Trust acted in breach of the operational obligation.

It was established in Osman that a state authority is in breach of the operational obligation if (a) the authority knew or ought to have known of a real and immediate risk to the life of the individual concerned and (b) the authority failed to do all that could reasonably be expected to avoid that risk.

In Savage (the facts of which are set out in Part 5 above) the House of Lords indicated that the test of "real and immediate risk" of suicide was a stiff hurdle: see Lord Scott at paragraph 14, Lord Rodger at paragraph 41 and Baroness Hale at paragraph 100. It will be recalled that Lord Walker and Lord Neuberger agreed with Lord Rodger and Baroness Hale.

In Van Colle (the facts of which are set out in Part 5 above) the House of Lords again made clear that the test of "real and immediate risk" was a stiff one: see Lord Bingham at paragraph 30, Lord Hope at paragraphs 67 to 69 (with their reference to "the very high threshold that was laid down in Osman") and Lord Brown at paragraph 115.

In the present case the judge held that the test was not satisfied. When Melanie was given home leave on 19^th April 2005, the risk of her committing suicide was "real", but not "immediate". Both parties challenge this conclusion. The claimants contend that the risk was immediate as well as real. The NHS Trust, by its respondent's notice, contends that the risk was neither real nor immediate.

Ms Monica Carss-Frisk QC for the NHS Trust contends that, in order to be "real", the risk must amount to a likelihood. I do not accept that submission. It seems to me that the suicide risk described by Dr Caplan (see Part 2 above), although less than 50%, was in every sense "real".

The meaning of "immediate" must be affected by context. In the context of this case, the "immediate" period which must be considered is the two-day period from 19^th to 21^st April. This is the period for which Dr Meagher was granting home leave and during which Melanie would be beyond the effective supervision and control of hospital staff. The suicide risk in the immediate future (19^th – 21^st April) was different from the long term suicide risk.

In identifying the degree of risk over this period, I must turn to the expert evidence of Dr Caplan. The judge preferred that evidence to the expert evidence of Dr Britto, whose opinions were more favourable to the claimants. Dr Caplan said that the suicide risk, as it should have been assessed on 19^th April, was 5% on that day, rising to 10% on 20^th April and rising to 20% on 21^st April.

In my view, that suicide risk was both real and immediate. There was a simple and obvious way to prevent that risk eventuating, namely to refuse Melanie's request for home leave. If the request had been refused, Melanie would not have insisted upon going home contrary to medical advice: see paragraph 76 of the judge's judgment.

For all of the foregoing reasons, if the claimants had succeeded on the first ground (operational obligation), I would have allowed their appeal on the second ground. If the operational obligation existed, the NHS Trust failed to comply with it.

PART 7. THE THIRD GROUND OF APPEAL – BREACH OF INVESTIGATORY OBLIGATION

The judge held that the NHS Trust did not breach the investigatory obligation under ECHR article 2. The claimants now renew their application for permission to appeal against that part of his decision.

When state agents have been involved in the death of an individual or the deceased was in custody at the time of his death, ECHR article 2 requires that there should be an effective official investigation into the circumstances and cause of death. A line of authorities from Strasbourg and the House of Lords gives guidance as to when such an investigation is required and what are the minimum requirements of such an investigation. See Edwards v UK (2002) 35 EHRR 487; Jordan v UK (2003) 37 EHRR 2; R (Amin) v Secretary of State for the Home Department [2003] UKHL 51; [2004] 1 AC 653; R (Middleton) v West Somerset Coroner [2004] UKHL 10; [2004] 2 AC 182.

Takoushis (discussed in Part 5 above) concerned a schizophrenic patient, not detained under the Mental Health Act, who left hospital and committed suicide. The Court of Appeal held that there were deficiencies in the inquest and ordered a fresh inquest. Sir Anthony Clarke MR, delivering the judgment of the court, described the investigatory obligation under article 2 as follows at paragraph 98:

"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 R (Smith) v Oxfordshire Assistant Deputy Coroner [2009] EWCA Civ 441; [2009] 3 WLR 1099, a case concerning a Territorial Army soldier who died of heat stroke while in Iraq, the Court of Appeal adopted a similar approach: see paragraph 83.

In the present case there has been an inquest at which the parents were present, although not represented. Mr Rabone addressed the coroner. There was the SUI investigation, which resulted in a report critical of the hospital. The final report of that investigation included the following paragraph in the section on professional judgment:

"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 31^st 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 8^th 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 11^th 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."

There has also been the civil litigation, in which the circumstances of Melanie's death and the negligence on 19^th April have been exposed. There is nothing more which could be learnt from further investigation, as Mr Robert Francis QC for the claimants accepted during argument on the appeal.

The main focus of Mr Francis' submissions has been upon inadequacies of the SUI investigation. Mr Francis draws attention to early drafts of the SUI investigation report. These contained passages which were later omitted. All these drafts have been disclosed during the course of the present litigation. I do not think that they form any proper basis for the contention that the NHS Trust was in breach of the investigatory obligation, in so far as that obligation rested upon the NHS Trust rather than upon other authorities or agencies of the state.

Taking matters shortly, I agree with the view which Lady Justice Janet Smith expressed when she was dealing with the permission application on the papers. I would therefore refuse the renewed application for permission to appeal on ground 3.

PART 8. THE FOURTH GROUND OF APPEAL – VICTIM STATUS

Section 6 (1) of the Human Rights Acts makes it unlawful for any authority to act in a way which is incompatible with a Convention right. Section 7 provides:

"7 Proceedings

(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 first issue which arises is whether the claimants, as parents of the deceased, are "victims" in relation to the alleged breach of the operational obligation under ECHR article 2.

In Savage Lord Scott expressed doubt as to whether Mrs Savage's daughter could be a victim for the purposes of that litigation: see paragraphs 4 and 5. These comments were obiter, since that question did not form part of the preliminary issue under appeal and had not been the subject of argument. It has, however, been argued in the present case and the relevant authorities have been cited.

In Yasa v Turkey (1999) 28 EHRR 408 the Strasbourg court held that a nephew was entitled to bring a claim in respect of the murder of his uncle. That claim was brought in respect of (a) alleged killing by government agents and (b) alleged inadequate investigation. At paragraph 66 the court held that "the applicant, as the deceased's nephew, could legitimately claim to be a victim of an act as tragic as the murder of his uncle".

In Edwards v UK (2002) EHRR 19 the parents of a prisoner, who was killed by a fellow prisoner, recovered compensation for breach of the operational and investigative obligations under article 2. It was not disputed that they were victims for the purposes of article 34.

In Kats v Ukraine (Application No. 29971/04, BAILII [2008] ECHR 1742) the Strasbourg court made the following statement of principle at paragraph 94:

"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 (Çiçek v Turkey, no. 25704/94, 27 February 2001, BAILII [2001] ECHR 108), a deceased's father (Hugh Jordan v the United Kingdom, no.24746/94, ECHR 2001-III (extracts) BAILII [2001] ECHR 327) and a deceased's brother and sister (see respectively Ergi v Turkey, judgment of 28 July 1998, Reports 1998 –IV and Semsi Önen v Turkey, no. 22876/93, 14 May 2002, BAILII [2002] 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.

Finally, it should be noted that in the recent trial of the Savage action (following the House of Lords' decision on the preliminary issue) Mackay J held that Mrs Savage's daughter was entitled to bring her claim as victim: see Savage v South Essex Partnership NHS Foundation Trust (No. 2) [2010] EWHC 865 (QB) at [92]-[94]. In the light of the Strasbourg authorities citied above, I consider that Mackay J's conclusion in Savage (No. 2) was correct.

Reverting to the present case, in my view the claimants should be treated as victims for the purpose of the article 2 claim, unless the litigation under the Law Reform Act and the settlement of that litigation deprives them of that status.

(ii) Whether the parents forfeit "victim" status as a result of bringing and settling the claim in negligence

I now turn to the authorities dealing with the effects of bringing and settling parallel litigation.

In Eckle v Germany (1983) 5 EHRR 1 the applicants established breach of ECHR article 6(1), in that two fraud prosecutions against them had lasted for 15 and 20 years respectively. At paragraph 66 the court observed that mitigation of sentence and discontinuance on the grounds of delay did not deprive the applicants of their status as victims. The court then added:

"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."

In Caraher v UK (Application No.24520/94, BAILII [2002] ECHR 445) the applicant claimed compensation for the killing of her husband by soldiers in Northern Ireland. She had previously brought a claim against the Ministry of Defence for aggravated damages in respect of the same matter. That claim had been settled for £50,000. The court held that since the applicant had used "the local remedies available", she could no longer claim as a victim for breach of article 2.

In Powell (discussed in Part 5 above) the applicants had previously brought and settled a claim against the relevant health authority. They had issued but not pursued proceedings against the doctors involved. The Strasbourg court held:

"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."

In Hay v UK (Application No. 41894/98, BAILII [2000] ECHR 707) (17^th October 2000) Ian Hay was shot dead by police officers. Mr Hay's brother and sister brought proceedings against the Chief Constable on behalf of his estate. That claim was settled for £10,000 (plus £500 for damage to property and a separate sum for judicial review costs), without prejudice to the right of those representing the estate to pursue a claim in the Strasbourg court. The brother and sister duly brought a claim for breach of article 2 in the Strasbourg court. The court held that the applicants, having used the local remedies available and settled the civil action, could no longer claim to be victims within article 34.

In Rowley v UK (Application No. 31914/03, BAILII [2005] ECHR 943) (22^nd February 2005) the applicant's disabled son died in the bath at a residential care home. The applicant made a claim against Salford City Council in respect of this matter. The claim was settled for £1,750 plus costs and a formal letter of apology. The Strasbourg court held that in those circumstances the applicant could no longer claim to be a victim. The court formulated the principle as follows:

"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 Bubbins v UK (2005) 41 EHRR 24 the applicant's brother had been shot dead by an armed police officer in the course of a police operation. The court held that there had been a violation of article 13, but not of article 2. In relation to the claim under article 13 the court held at paragraph 172:

"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.

In Scordino v Italy (2007) 45 EHRR 7 the applicants were embroiled in lengthy litigation about compensation for land which had been expropriated. The Italian Court of Appeal subsequently awarded €2,450 as compensation for the excessive length of the proceedings. The applicants subsequently recovered compensation in the Strasbourg court for breaches of ECHR article 6 and article 1 of Protocol 1. The court held that they were entitled to claim as victims. At paragraph 181 the court stated the principle as follows:

"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 Sisojeva v Latvia (2007) 45 EHRR 33 the facts were far removed from the present problem. However, at paragraph 93 the court re-stated the principle upon which it determines victim status as follows:

"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."

In Oyal v Turkey (Application No. 4864/05, BAILII [2010] ECHR 369) (23^rd March 2010) the applicants alleged that the infection of the first applicant, a new born baby, with HIV during a blood transfusion in hospital had given rise to a breach of ECHR articles 2, 6 and 13. In 1996 the Turkish court had awarded compensation of 30,000,000,000 Turkish lira plus interest. The Strasbourg court noted that the award would only cover one year's medication and treatment for the first applicant. Accordingly, it held that the redress given was insufficient and the applicants could still claim to be victims under article 34.

In ?zcan v Turkey ((Application No. 18893/05, BAILII [2010] ECHR 615) the applicants were close relatives of Yilmaz ?zcan, who was killed in a military operation. The soldier responsible had been convicted of manslaughter and the applicants had received compensation for the death of their relative. The court awarded (a) €40,000 to the widow and children of the deceased in respect of the financial support which they had lost and (b) a further sum of €81,000 in respect of non-pecuniary damage to be shared amongst all the applicants. In relation to the question whether the applicants were victims, the court stated at paragraph 53:

"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.)"

The Strasbourg cases do not all fit together neatly, which is unfortunate because citizens need clear guidance on locus standi before they incur the massive costs of litigation. Nevertheless, from the above review of authority, I derive the following propositions:

(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.

Let me now apply those principles to the present case on the assumption that I am wrong in relation to the first ground of appeal. The NHS Trust has admitted breach of duty of care and has settled the claimants' claim under the Law Reform Act for funeral expenses plus some £5,000 general damages. The very same facts which constitute negligence would also constitute breach of the operational obligation under article 2, if such an obligation existed. The NHS Trust has sent a formal letter of apology to the claimants in respect of the error which they made on 19^th April 2005. The claimants have not suffered any pecuniary loss, which would entitle them to damages under the Fatal Accidents Act. The £5,000 general damages paid to Melanie's estate, which will presumably pass to the claimants upon her intestacy, is by no stretch of the imagination compensation for the devastating loss which they have suffered. Indeed no sum of money could begin to compensate them for the tragedy which they have endured. It is at most a nominal sum to mark the breach of duty that has occurred. The fact that the claimants do not have a claim as dependants under the Fatal Accidents Act, because Melanie was aged over 18, simply means that under English law the claimants did not recover an additional nominal sum of £10,000.

Having examined all of the circumstances of the current litigation, I conclude that the claimants have already obtained effective redress, in so far as the law can afford "redress" for a loss which lies beyond the reach of financial compensation. Accordingly, the claimants are not "victims" within ECHR article 34. Therefore they are not entitled to pursue a claim under section 7 of the Human Rights Act. In the result, I would dismiss the fourth ground of appeal.

PART 9. FIFTH AND SIXTH GROUNDS – LIMITATION AND QUANTUM

In view of my decisions on grounds 1 to 4, this appeal must be dismissed and the last two grounds of appeal do not arise for consideration. I shall therefore deal with those two grounds very shortly.

In relation to limitation, the judge set out the relevant considerations at paragraphs 120 to 130 of his judgment. He then treated the fact that the claim had no merit as "the decisive factor".

I agree with that analysis. If the claim is doomed to failure, it is not appropriate to extend time under section 7(5)(b) of the Human Rights Act. If the claim were otherwise well founded, however, looking at the matters set out in paragraphs 121 to 130 of the judge's judgment, I for my part would have been inclined to extend time.

Accordingly, I would dismiss the fifth ground of appeal.

I now turn to the sixth ground of appeal, quantum. Again, this issue does not arise because the claimants have failed on liability. 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 claimants' entitlement under the Fatal Accidents Act, if Melanie had been under 18.

PART 10. CONCLUSION

Let me now draw the threads together. For the reasons set out in Parts 5 and 8 above, I would dismiss this appeal.

Lord Justice Rix:

I agree.

Lord Justice Stanley Burnton:

I agree.