You will note that it is four weeks since the decision in Rabone v Pennine Care NHS Trust and still no comment on this blog. This is not because I had not spotted it. I had. It is because the implications in the mental health field of this decision seem so far-reaching that I have struggled to work out what, if anything, I wanted to say about it.
Fortune favours the tardy, and in the interim some excellent summaries of the decision have been published here, here and here. I have also volunteered to write a case comment on it so a lengthy exegesis on this judgment can wait for somewhere else. Instead, I want to use this space for a few personal reflections.
Melanie Rabone was a 24 year old woman with a long history of anxiety and depressive illness. On 11th April 2005 she was admitted to hospital on an informal basis after attempting suicide. She repeatedly indicated during her admission that she wished to return home. Her parents repeatedly informed ward staff that they were concerned about her welfare and the risk of further suicide attempts if she were discharged. On the 19th April 2005 Melanie was allowed home on home-leave. She killed herself at a local beauty spot less than 24 hours later.
Melanie’s parents subsequently launched proceedings against the NHS Trust responsible for the hospital both on grounds of negligence and on the basis that their failure to assess the high risk of suicide Melanie posed before permitting home leave amounted to a breach of Art. 2 ECHR – the right to life. Whilst they lost at first instance and in the Court of Appeal, in a surprising unanimous judgment of the Supreme Court it was held that it was possible for the state to hold an operative duty to protect the right to life towards voluntary psychiatric patients and that, in this instance, on the 19th April 2005 there had been evidence to indicate a real and immediate risk to Melanie’s life which the state had failed to take action to address. Consequently there had been a violation of Art. 2 and Melanie’s parents were entitled to redress.
It is a painful judgment to read. As Lady Hale movingly points out, ‘losing a child prematurely is agony’ (para 92). Some of the complexity of this case is (and should be) caused by our sympathy for Melanie, for her family, for the healthcare professionals involved who expressed their regret at the care Melanie received and also for the judges charged with disentangling the ensuing conflict. So the first personal reflection is that almost everyone who comes to work in the field of mental health is motivated at some level by compassion. That compassion sometimes fades away in the face of the relentless difficulties of delivering good quality care in under-resourced settings with little wider recognition for the work that you do. Amazingly it often survives. Compassion is a good reason for feeling that the outcome of this case is sound. The case recognises that Melanie was in a specifically vulnerable position which distinguished her from most other recipients of healthcare services and that if we are to protect human rights effectively we should do so by looking at the actual circumstances of the case and not at whether formal procedures such as statutory detention under the Mental Health Act have been employed. It also recognises that the suffering of Melanie’s parents was in large part caused by the failure of Pennine Care NHS Trust to recognise and take adequate steps to prevent the ‘real and immediate risk’ to Melanie’s life and that they deserve recompense for this. Recompense has nothing to do with restoring them to the position they were in before they lost their daughter or in some way alleviating their suffering. No amount of money will do that. But recompense does mean that the Trust has formally acknowledged both the extent of the duty it owed to Melanie and the fact of its failure.
Nevertheless the judgment seems to have significant and possibly unfortunate implications for the development of mental health law. It will be worth closely observing how the case is interpreted both by Trusts anxious not to violate Convention rights and by advocates keen to ensure that psychiatric patients secure the greatest degree of rights protection possible.
The first question raised by the case is that if the operative duty owed by the state to protect life is not limited to patients who are formally detained where do the boundaries now lie. If Melanie’s
‘…position was far closer to that of such a hypothetical [detained] patient than to that of a patient undergoing treatment in a public hospital for a physical illness.’ (per Lord Dyson at para 34)
and ‘The analogy with a patient detained under the Mental Health Act is much closer than the analogy with a patient admitted for treatment of a physical illness or injury. (per Lady Hale at para 105)
the question we have to ask is why? For Lord Dyson and Lady Hale it is relevant that the position of voluntary psychiatric patients is characterised by the existence of powers of detention which do not apply to ordinary medical patients, the existence of actual if not legal control over his movements when he tries to leave the hospital and the likelihood that their decisions regarding treatment consent or refusal will not be adequately informed by awareness of the risks involved.
In both instances Lord Dyson and Lady Hale emphasise the difference between psychiatric patients and medical patients undergoing elective treatment who have freely chosen to consent to the risks involved. On this basis they can distinguish the judgment in Powell v UK, a case which the ECtHR held to be inadmissible because once the state had discharged its duties to ensure ‘high professional standards’ amongst healthcare professionals subsequent acts of negligence committed by those professionals did not engage the operative duty under Article 2.
The actual differences in the situations of voluntary psychiatric patients and of medical patients seem compelling, but in healthcare the differences are typically of degree rather than of nature. There is a clear distinction between someone choosing to go into hospital for an elective hip replacement and Melanie Rabone who was ‘choosing’ to go into hospital in a state of extreme emotional distress, aware of the possibility of legal coercion being used and also aware, no doubt, that her parents with whom she lived thought she needed to be in hospital. But what if the person receiving the hip replacement has limited capacity to make treatment decisions and the power to administer the treatment is only generated by the power to make best interests decisions under the Mental Capacity Act? Should the operative duty be owed in those circumstances too?
Lady Hale further distinguishes between medical and psychiatric patients on the basis of the risks they are participating in. For the medical patient
‘She has made an informed and autonomous choice to be in hospital and to receive the treatment in question. There is no power to detain her should she decide to leave. Any risk to her life stems from her physical condition. Any failure to prevent her death is likely to stem from what in Savage Lord Rodger called “casual acts” of medical negligence rather than from a deliberate decision. If there is a deliberate decision to take a risk, she should have given her informed consent to it.’ (para 106)
The deaths of many older infirm people in hospital occur at a point when their capacity is reduced through illness, their physically frailty is very great and they have limited awareness of treatment options available. It is at this time that the decision may be made, for example, not to aggressively treat their chest infection with antibiotics. Can we really distinguish between these patients and voluntary psychiatric patients on the basis that the latter have not made any consensual agreement to expose themselves to risk? Or do many or even most people who die in hospital do so at some level because the state sanctions it, or fails to promote procedures which would make the decision processes involved visible because of the social and ethical costs entailed?
Having said all that, whilst the boundary issue seems to me highly debatable it should have little practical impact since the judges reassure us that the threshold for establishing a breach of the operative duty under Art 2 is far higher than the threshold for establishing negligence. The test for negligence is merely that the risk is reasonably foreseeable whilst as we know from the decision in Osman v UK for the state to be liable for a breach of Art 2 the risk to life must have been ‘real and immediate’. On the medical evidence there was a significant discrepancy on this point with one doctor placing the risk of Melanie killing herself during the period of home leave as high as 70% and another placing it at 5% rising to 20%. The trial judge was more convinced by the latter evidence and the Supreme Court accepted this evaluation but held that even a 5% – 20% risk of suicide was real and immediate.
What the judgment does not do is explore how this threshold differs from the threshold for foreseeability in the context of suicide. The Trust’s own expert confirmed that the care offered to Melanie fell below the standard of care she should have expected and the Trust subsequently made a payment for damages outside court. Neither the judgment here, nor the judgment in Savage, which concerned a detained patient who killed herself whilst on unauthorised leave, assesses the scale of the gap between the common law test of foreseeability in tort and the test of ‘real and immediate risk’ required after Osman. If the doctor appointed by the Trust is correct and one patient in twenty who shared Melanie’s characteristics would attempt suicide on the first day of leave from hospital does that make suicide a foreseeable outcome of leave? At what point do we leave the shores of foreseeable outcomes behind and enter the realms of real and immediate risk which engage Art.2?
This decision leaves me uncomfortable: risk assessment is a difficult and imprecise art and its practitioners have to balance their uncertain knowledge against the certain costs of restricting the liberty of all ‘voluntary’ patients in order to ensure they do not take their own lives. The real and immediate risk of harm that Melanie faced when taking leave from hospital was not easy to calculate. There was a huge discrepancy between the two doctors submitting expert evidence at trial and again between the risk perceived by her clinical team and those later experts, neither of whom had met Melanie.
If the Supreme Court is correct and the threshold for establishing that the operative duty under Art 2 is a high one then we should not need to worry. In ordinary circumstances standard clinical practice will be adequate to avert any risk of falling foul of the Human Rights Act (and therefore either being liable in damages to a very small extent or suffering the far more considerable loss of reputation that attends a violation of a convention right). However, we already know that actually the judgment to be made was a difficult one and that the distinction between a situation which does and does not engage Art 2 may be a fine one.
In the 1970s when my Mum worked as a psychiatric social worker unlocked wards were the norm and patients frequently took themselves out for the day without anyone checking up on their movements. Ten years ago when I last worked in in-patient advocacy the wards were usually locked but few patients were legally detained and the rest knew that they could leave if they wished. The decision in Rabone has been made against a backdrop of increasing legal coercion in England . The reasons for this are poorly understood, but overall numbers of admissions are not falling significantly whilst the proportion of patients who experience a period of legal detention in any given year increases. Legal detention is no longer an exceptional aspect of in-patient care. It is now the norm. If risk averse mental health services take Rabone to heart we may be looking at a situation where all patients regardless of legal situation are subject to a very high degree of de facto control over their movements in order to avert even a small likelihood that they may leave the hospital and kill themselves.