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Leading human rights case extends duties of psychiatric hospitals

The Mental Health team at Swain and Co welcome the decision in the landmark case of Rabone v Pennine Care NHS Trust [2010] EWCA Civ 698.

In this case, it was decided that the parents of an informal patient should be able to rely upon The Mental Health Act 1983 (as amended), in establishing that a duty of care was owed to their daughter, Melanie Rabone and, further, that they, as victims, should be entitled to engage Article 2 Human Rights Act 1998 and claim damages.

Melanie Rabone had been diagnosed with Recurrent Depressive Disorder, following a number of attempts to take her own life.  Miss Rabone was admitted to hospital on 31st March 2005 as an informal patient, following reports of deliberate self harm.  Although Miss Rabone was an informal patient, she had not been encouraged to take leave from the Hospital grounds, being told that if she did attempt to leave, she would be assessed for detention under the Mental Health Act.  However, approximately two weeks into her admission the hospital agreed to her request for leave to her parents home for two nights, despite her parent’s feeling that such leave was not appropriate, given Miss Rabones’ persistence in attempting to end her life. Tragically, the day after she was released on home leave, Miss Rabone succeeded in taking her own life by hanging herself from a tree in a park local to her parent’s home.

The Court of Appeal initially decided that as Melanie Rabone was not formally detained under the Mental Health Act 1983, no operational duty under article 2 ECHR could be owed, and in doing so confirm to the principles set out in Osman v United Kingdon [2000]. However, in the case of Rabone, the Supreme Court unanimously held that although Melanie was not formally detained, she must, by consideration of the issues of vulnerability and risk, fall into the category of cases whereby a duty does exist thereby distinguishing this case from that of Powell v United Kingdom [2000].

The Court held that Melanie Rabone had been admitted to hospital because of a real and immediate risk of suicide and deliberate self harm, and for those reasons there could be ‘no doubt’ that she was owed an operational duty to ‘take reasonable steps to protect her from the real and immediate risk of suicide’.  The hospital had accepted responsibility for her, and could have exercised their powers under the 1983 act to prevent her from leaving, if they chose to do so.

It was then considered by the Court whether Melanie’s parents were therefore entitled to pursue a claim under Article 2 Human Rights Act 1998.  It is well established in European Law that parents can be ‘victims’, but the question to be answered was whether Melanie’s parents had previously ‘exhausted’ their right to bring such a claim, having already settled a claim on behalf of the estate.

This matter was considered expeditiously by the Supreme Court, who confirmed that the only claim which had been settled was on behalf of the estate of Melanie Rabone which had not been brought by her parents, personally, in their capacity as bona fide victims under the ECHR.  They could not, therefore, have renounced their victim status, and were allowed to bring a further claim under Article 2.

The principle that comes from this case is supported by the Mental Health team at Swain and Co.  Melanie Lidstone-Land of the team says ‘Patients (and their families) who not formally detained using the Mental Health Act 1983 (as amended) have, prior to this case, not been able to take advantage of any operational duty afforded to them under the Act, notwithstanding that they have always been as vulnerable as those who are formally detained.  The principle in this case should go some way to ensuring that all patients are adequately protected by the Law’.

Swain and Co have specialist Mental Health and Human Rights teams who can be contacted on 02380 631111 (Southampton) and 02392 483322 (Portsmouth/Havant) and 0161 6263474 (Liverpool).



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