Rabone v Pennine Care NHS Trust – some scattered reflections

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.

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8 thoughts on “Rabone v Pennine Care NHS Trust – some scattered reflections

  1. Great post, I got so exciting reading it I tweeted it three times. I read Rabone and and need to read it again, but I had similar concerns about the ‘spread’ of the operative duty and the lack of concern shown in the judgment for increased use of de facto controls. I’ve been pondering it’s potential ‘spread’ to social care as well, partly about people’s free movement within formal care settings. But also around care service provision decisions, where people (who are said to lack capacity) want to stay living at home, where there’s an increased risk to them, rather than moving into residential care. Some judgments have indicated a willingness to assume that risk even for people who lack capacity, prioritising relational and emotional factors above safety, but I wonder if rulings like Rabone could have a chilling effect on these?

  2. Thanks Lucy. I do not know what judgments you mean but it is a big leap to describe the Art 2 duty extending to situations where an individual is living at home. In those circumstances, and especially where a thorough risk assessment has been conducted it would be hard to argue that the state has failed in its duty to protect life if the person subsequently dies. Even if the risk assessment is poor the argument of a failure to protect life outside an institutional context is always going to be hard to prove because it will be very difficult to demonstrate that the state could and should have known that there was a real and immediate risk to life. I can imagine extreme hypothetical circs that would fit but not many.

    The scope for influence in residential care is greater. There people are de facto detained, sometimes legally detained. If there are real and immediate risks to their lives resulting from their condition which could be ameliorated through action by the care provider then the duty could be engaged. Moreover it might make sense for care providers and commissioners to operate on a risk averse basis. However, even there the level of risk required means that most of the time you’ll still be looking at pretty seriously ill people before a real possibility of a violation could occur. Running the risk of letting someone a bit frail and confused go to the pub unsupervised isn’t going to cut it, even if that turns out to be a poor decision with the benefit of hindsight. Leaving someone who is at high risk of suffering a stroke without night-time support might do, but maybe it should as well.

    So I think hospitals are still the settings we should be most concerned about. It seems almost perverse that a judgment which sensitively recognises the scale of de facto control which voluntary patients are subject to may have the unintended consequence of increasing the degree of this control in future.

  3. Excellent post. Like you I find the distinction between mental health and physical patients unconvincing. I’ve posted about that at some length on my blog (http://whathappenslaw.blogspot.com/2012/02/duty-to-protect-life-and-healthcare.html) but the essential point is, as you say, that a variety of patients in hospital fit the criteria that Lord Dyson actually used in assessing Melanie’s circumstances.

    I think the danger of defensive practice occurring in response to Rabone is real, particularly within the mental health setting. However I would have found the court tempering its judgment in order to pre-empt that far more disturbing. The legalistic tendency in healthcare is a massive problem but it’s one that needs addressing on its own terms; I can’t help feeling that attempting to avoid or accommodate it would end up entrenching it. That said I would have preferred that judgment spent less time drawing unconvincing lines between mental health and other patients and more time clarifying ‘real and immediate risk’

    • Unfortunately permission is required to read the whathappenslaw.blogspot article on Rabone. Would it be possible to gain access?

  4. Thank you for your comment. I am sorry I’d missed your original post – I hope you do not mind but I have gone back and added a reference to it now since it is a more critical analysis than either of the blogposts I had originally cited.

    I agree with you that reaching a different conclusion on this set of facts to avoid defensive practice in future would have been wrong. It is not logical that Rabone requires that other Trusts engage in defensive practice in future, but then if defensive practice were logical it would hardly be a problem! As you say this needs to be addressed on its own terms.

    The absence of a meaningful discussion of how Art.2 and the duties owed at common law intersect in any of the Rabone judgments or in Savage is a serious problem. I do not think clarifying ‘real and immediate risk’ alone will help. They need to explain how this intersects with tort. The tort caselaw does not help, largely because these cases are never litigated at tort because the damages recoverable will be minimal and the legal costs enormous, and the Trusts sensibly settle for relatively small sums out of court. That being so we cannot state as a fact that the threshold for ‘real and immediate risk’ here is obviously higher than foreseeability when the equivalent facts have never been tested on that basis. It is even arguable that a failure to admit a patient on a compulsory basis cannot be grounds for an action in negligence claim because decisions about compulsory admission under statute are made under a public law duty and not a personal duty of care to the individual (this was why Christopher Clunis could not recover damages from Camden and Islington Health Authority even though his psychiatrist had failed to assess him after being notified by his GP that he was unwell). I do not think that applies to the facts in Rabone because the trial judge found that Melanie would not have allowed herself to be sectioned so the choice was never between home-leave or Part II admission but between home-leave or continued voluntary admission. Nevertheless there is a heck of a lot left unexplored here. Not the fault of the judges, but nevertheless deserving of close scrutiny.

  5. Thanks for the link, it’s appreciated, but neither it nor the link to UKSC blog seem to be working (for me anyway).

    The example of a case where Article 2 duty may exist in the absence of ground for a claim for negligence hadn’t occurred to me; it really demonstrates how uncertain the law is at the moment. I suspect that as the case law develops the scope of the duty will expand in terms of patient groups effected but I would hope that the criteria that risks are ‘real and immediate’ and ‘of the kind that individuals in the relevant category should reasonably be expected to take’ are very tightly interpreted indeed.

  6. A very thought-provoking article. Thank you for sharing it with us.

    I made an FOI Request in January to the HMCTS along the lines of Human Rights and the mental health legislation of England. I am deeply concerned about erosion of liberty in and out of hospital for both mental health patients and those who are physically ill but deemed to be “vulnerable” and “at risk” for we seem to have thrown away our proportionate responses that have served us well in the 20th century and now seem determined on a completely new legal and moral framework.

    11 January 2012
    Dear Her Majesty’s Courts and the Tribunals Service,

    I am requesting under Freedom of Information, the exact
    Legislation/Guidelines/Laws/Protocols that enable a
    MagistratesCourt to issue a Warrant under Section 135 to enter into
    a place of residence where the person has not been found to be
    mentally unstable and not lacking in mental capacity, and no
    doctor, and no social worker and no mental health nurse, and no
    police have found that person already to be either mentally ill or
    lacking mental capacity?

    Is it the case that there has to be proper evidence put before the
    Magistrate and that there must be a detailed history of what has
    led the Social Worker and Police to seek a Warrant and hand this to
    the Magistrate?

    What happens in a case where a Magistrate is given “evidence” which
    is flawed and there is written evidence to show that this is flawed
    and is held by the people seeking the warrant?

    What are the safeguards in this instance?

    Who is legally held responsible for misinformation where there has
    been a partnership of safeguarding between local
    authority social workers, a mental health trust, local police force
    and GP and psychiatrist but without ever medically assessing the
    said person or interviewing the said person to find out whether
    he/she lacked mental capacity or was indeed suffering from a mental
    health disorder which warranted investigation for alleged neglect
    and / or abuse when the GP him/herself has told the Social Services
    that he/she is satisfied that his/her patient has expressed a wish
    NOT to be assessed by Social Services and/or receive psychiatric
    services?

    When there is this level of disagreement between the Medical
    General Practitioner who supports his/her patient to give his/her
    own views and that the patient has already stated and signed in
    writing that he/she is happy to continue living in the way he/she
    is, and does not want state interference, wherein is the right of
    ANYONE to remove Habeas Corpus?

    How many complaints have you received between 1 January 2011 and 11
    January 2012 inclusive, that a Nearest Relative
    has NOT been notified by Her Majesty’s Courts and Tribunals Service
    [or its predecessor authorities] of a Mental Health Review Tribunal
    where the patient has wished the Nearest Relative to be kept
    informed?

    How many complaints have you received between 1 January 2011 and 11
    January 2012 inclusive, that a Nearest Relative has NOT been
    notified by Her Majesty’s Courts and Tribunals Service [or its
    predecessor authorities] at the 6-month period that automatically
    falls due when a person has been incarcerated under Section 2 or
    Section 3 for 6 months?

    How many complaints have you received between 1 January 2011 and 11
    January 2012 inclusive, that a Nearest Relative has been subject to
    a Court Action brought by the Local Authority which seeks to
    Displace him/her as Nearest Relative but that the patient supports
    the Nearest Relative and is brought into the Court Action as
    Defendant along with his/her Nearest Relative?

    How many complaints has Her Majesty’s Courts and Tribunals Service
    upheld that the Nearest Relatives and the Patients have been
    wrongly treated by the Local Authorities and/or Social Services
    and/or AMHP and/or Responsible Clinician and/or SOAD and/or Primary
    Care Trust and/or GP and/or Care Quality Commission and/or Care
    Quality Commission Mental Health Commissioner and/or MIND and/or
    RETHINK and/or Advocacy Service?

    How many Mental Health Tribunals took place in the period 1 January
    2011 and 11 January 2012 inclusive?

    How many Mental Health Appeal Tribunals took place in the period 1
    January 2011 and 11 January 2012 inclusive?

    I was informed in Autumn 2011 that there had been a delay in the
    Appeals Service, and wish to know how long is the longest time that
    a patient or Nearest Relative has had to wait for an Appeal to take
    place after submitting an application for it to take place? I am
    informed that it is perfectly possible for a patient and Nearest
    Relative to have 2 Tribunals and 2 Appeals very close together on
    account of the way Her Majesty’s Courts and Tribunals Service
    works, but I do not have verification of this by yourselves and
    therefore would appreciate how this works please.

    How much notice is normally given to a Nearest Relative by Her
    Majesty’s Courts and Tribunals Service that a Tribunal
    or Appeals Tribunal is to take place for a patient where the
    Nearest Relative him/herself has NOT sought it? What is considered
    a reasonable time for a Nearest Relative to have in order to seek
    information and discuss options with the Care Quality Commission,
    PCT, GP, social workers, the mental health trust, the Responsible
    Clinician, the Approved Mental Health Professional, the Named
    Nurse, the Care Co-ordinator and the Community Health Team to
    discuss the “best interests” of the patient? What period of time
    would be regarded as UNACCEPTABLE as being unreasonable by Her
    Majesty’s courts and Tribunals Service?

    Bearing in mind the vast powers of Her Majesty’s Courts and
    Tribunals Service to determine the outcome of a Tribunal in
    the “best interests” of the patient, is it not commensurate that
    the same HMCTS has to apply proportionality and judiciousness and
    ensure that a patient is fully represented by a Nearest Relative
    who is fully involved in their care, especially where the patient
    is wanting to return home and the mental health trust and/or local
    authority/safeguarding unit detaining him/her is the authority that
    has chosen the advocacy service who in turn may have chosen
    solicitors, having “de facto” displaced the Nearest Relative in
    his/her powers? Where are the HUMAN RIGHTS of both patient and
    Nearest Relative in these matters? Is there recourse to the
    European Parliament under Article 8 Right to a Family Life for both
    patient and Nearest Relative, and of the Right to a Fair Trial? How
    do the Nearest Relative and patient obtain NATURAL JUSTICE in this
    respect? As it is a question of HABEAS CORPUS as enshrined in Magna
    Carta.

    If that is so, is this abuse of due process and procedure? What
    legal remedies are there against HMCTS to get justice in such an
    instance?

    And if a Tribunal has been given “misinformation” or been withheld
    any information by a Mental Health Trust and/or Local Authority
    and/or its agents, what is the legal remedy for the affected
    Nearest Relative and Patient when the Decision is based on flawed
    information which can be PROVED to be flawed and even mischievous?

    I am aware of Judicial Review but this is very costly and surely if
    there is a flaw in the Decision this should be remedied ASAP and
    not have to wait months for an Appeal Tribunal to take place – and
    that is only if it is granted. I wish to have chapter and verse on
    the HUMAN RIGHTS of patients detained against their will who have
    not been allowed to express their views to a SOAD under Section 58.
    What happens then?

    What is the legal remedy?

    What is the legislation?

    How many people have complained about section 58 to the CQC and the
    HMCTS?

    I hope that you will be able to answer my Freedom of Information
    Request. You will note that I am seeking the legal basis of what is
    supposed to happen, and I am NOT referring to any specific local
    authority, AMHP, MP, constituency, mental health trust, social
    services, community mental health facility, or magistrates court,
    or police authority or police service, but simply the legal basis
    for what is supposed to be the Law of the Land and how it is to be
    enacted by Her Majesty’s Courts Tribunals
    Service.

    Thank you very much for your help,

    Yours sincerely,

    Rosemary Cantwell

    11 January 2011

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