What does this judgement
mean for
psychiatrists? 
At the heart of this tragic case are familiar
challenges that clinicians face on a daily basis irrespective of
whether a patient is detained or not or is in the hospital or
community. This case once illustrates:
- The need to undertake a careful assessment of risk
- The need to formulate a clear risk management plan
- The need to take all information into account including the
views of other staff and of the family particularly when they will
be relied upon to provide support outside hospital
- The need for clear and detailed documentation outlining how
decisions were made and the reasoning behind over-ruling any strong
objections to the proposed plan.
The following statement is reproduced with the
permission of the Medical Director of the Pennine Care NHS
Foundation Trust, the trust involved in this case.
Background
On 20 April 2005, Melanie Rabone aged 24
hanged herself from a tree in Lyme Park, Cheshire. At the
time, she was on two days’ home leave as she was undergoing
treatment for a depressive disorder as an informal patient; she was
not detained under the Mental Health Act 1983.
Melanie had been admitted in to the care of
Pennine Care NHS Foundation Trust as an emergency following a
suicide attempt. Mr and Mrs Rabone maintained that the trust should
not have allowed her home leave and that the trust was responsible
for their daughter’s death. Mr and Mrs Rabone started
proceedings against the trust alleging negligence and breach of the
right to life protected by article 2 of the European Convention for
the Protection of Human Rights and Fundamental Freedoms. The trust
admitted negligence, but did not admit liability for breach of
article 2.
Supreme Court
judgment
The matter proceeded eventually to the Supreme
Court on a number of issues; the judgment of the Supreme Court on
those issues is set out below.
- The NHS owed an operational duty to protect Melanie Rabone’s
life under Article 2 of the Convention. The NHS had a positive
duty to protect against the risk of suicide of mental health
patients (“the operational duty”). There was no practical or
legal distinction between informal and detained patients. A
distinction could be drawn between mental health patients and those
attending hospital for physical care as the latter had accepted
risk through a process of informed consent and were
autonomous.
- The test for the operational duty was higher than that of the
common law test for negligence but was satisfied in this case as
Melanie was in “real and immediate” risk of committing
suicide.
- Her parents were victims within the meaning of the European
Convention on Human Rights.
- Their victim status was not lost as a result of the settlement
of the clinical negligence claim as there had been no explicit
reference to any human rights action and the Fatal Accident Act
1976 did not provide bereavement damages for the parents of an
adult child and consequently, their claim under Article 2 had not
been satisfied.
- The claim was not time barred as it was appropriate to exercise
the Court’s discretion under Section 33 of the Limitation Act 1980
given the particular circumstances of the case.
Comment
So, how does this affect us, and what are the
broader ramifications?
I am sure there will be considered opinion
from Royal College etc as this clearly affects all clinicians, but
my own take is that in day to day practice, this merely re-inforces
the need for a proper documented assessment. The issue is not that
somebody committed suicide whilst on leave, but that this occurred
due to failings in care that allowed that leave to be granted. So
this is not saying that we are entirely responsible for any action
of a patient whilst on leave, but that we need to have made sound
judgement (and for this to be documented), as to why leave was
granted. You’ll notice key phrases throughout such as “real and
immediate risk”, that her capacity was likely to be diminished by
reason of her being in hospital in the first place, so more onus is
put on us as providers of care.
A big impact I think potentially is in
relation to Coroners inquests. Essentially we will face, where
Article 2 is invoked, longer, more detailed inquests with families
legally represented. They will be pressing Coroners to make
findings of real and immediate risk to assist future claims under
Article 2.
Lady Hale’s summary (para
91) is the most telling.
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