Rabone & Anor v Pennine Care NHS Trust [2009] EWHC 1827 (QB) (23 July 2009)

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URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/1827.html
Cite as: [2009] LS Law Medical 503, (2009) 110 BMLR 56, [2009] EWHC 1827 (QB), [2010] PIQR P2

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		Neutral Citation Number: [2009] EWHC 1827 (QB)
		Case No: 6MA 15087

IN THE HIGH COURT OF JUSTICE
QUEEN'S BENCH DIVISION
MANCHESTER DISTRICT REGISTRY

Manchester Civil Justice Centre
1 Bridge Street West, M3 3FX

23/07/2009

B e f o r e :

Mr Justice Simon
____________________

Between:

	Richard Rabone (in his own right & as Personal Representative of the Estate of Melanie Rabone) and Gillian Rabone (in her own right)	Claimants
	and
	Pennine Care NHS Trust	Defendant

____________________

Mr R Francis QC and Mr N Poole (instructed by Pannone LLP) for the Claimants
Ms M Carss-Frisk QC and Ms J Mulcahy (instructed by Hempsons) for the Defendant
____________________

HTML VERSION OF JUDGMENT
____________________

Mr Justice Simon:

Introduction

On 20 April 2005 the Claimants' daughter Melanie Rabone ('Melanie') committed suicide. She was aged 24. The previous day she had been allowed home leave from Stepping Hill Hospital ('the Hospital'). She had been admitted to the Hospital on 11 April, following suicide attempts, and had been treated for severe depression.

The First Claimant ('Mr Rabone') brought a claim on behalf of Melanie's estate which has been compromised. The Claimants bring the present claim under section 7 of the Human Rights Act 1998 ('HRA') on the grounds that the Defendant ('the Trust'), which was responsible for the management and control of the mental health services at the Hospital, acted in a way which was incompatible with its obligations under article 2 of the European Convention on Human Rights ('the Convention').

The facts up to the time of Melanie's death

The central facts in the case are not substantially in dispute.

Melanie first suffered the symptoms of depressive illness in 2000. After this, and despite intermittent episodes of anxiety, her condition improved. On 4 March 2005, she attempted to commit suicide by tying a pillow-case around her neck. On the same day she was admitted to the Hospital.

On 7 March 2005, while a patient on Warren Ward, she 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 March Melanie was assessed as having shown sufficient signs of recovery to be allowed overnight leave. On 18 March, she was seen again by Dr Meagher and was discharged. A family holiday to Egypt had been booked; and 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 March, she cut her wrists with broken glass and was seen at A&E department at the Hospital. Dr Meagher advised she should be readmitted; however no beds were available at the time on Warren Ward.

On 6 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 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 1983. She was prescribed a course of drugs and thereafter kept under continuous 15 minute observation.

The Trust had a 75-page Care Programme Approach ('CPA') Policy dated January 2005. The CPA Policy focussed attention on the importance of using approved documentation as part of risk assessment and the management of risk in relation to mental health patients at paragraph 10.4.

There is a clear organisational expectation that practitioners consistently utilise approved risk assessment and management documents and processes. However there is also recognition that in keeping with the dynamic nature of risk, the documentation and processes will be kept under review.

Paragraph 10.10 provided that risk assessment,

… should be undertaken [at] … hospital admission, leave and discharge

It is part of the Claimants' case that there were deficiencies in implementing the CPA Policy in relation to Melanie's home leave on 19 April.

A full Mental State Examination was carried out on admission by one of the nurses on the ward, Nick Tatnall, as part of the CPA 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 8 pm on 13 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 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.

There is an issue about a note written by Melanie, which showed strong suicidal ideation. This was written on the back of a note containing some affectionate verses from her sister, Amanda. The timing of the note, and whether and (if so) when it was handed to the nursing staff by Mr Rabone are in issue.

There are notes in the nursing reports over the following days that Melanie's mood was lifting. However, at 1 pm on 18 April Mr Rabone was recorded as telephoning the Ward expressing 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 April 2005 Dr Meagher, who had been away when Melanie was admitted on 11 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. She 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 to 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. Reasons 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; and she and her mother left the Ward by 7.40pm for her 2 days home leave.

The Claimants are highly critical of both Dr Meagher's decision to allow Melanie home leave and the assessment of the risk which preceded it.

It is now common ground that Dr Meagher's decision was negligent. Both expert psychiatrists who have prepared reports in this case agree that Melanie should not have been allowed home leave at this time; and that, if she had insisted on leaving, she should have been assessed and, following such assessment, would have been likely to have been detained under the powers conferred by the Mental Health Act 1983.

Melanie spent most of the following day (20 April) with her mother; but in the late afternoon she said she was going to see a friend. At some time after 5 pm she hanged herself from a tree in Lyme Park.

The facts following Melanie's death

On 26 April the hospital received a request from HM Coroner for a statement from the medical and nursing staff having charge of Melanie's care.

On 31 August 2005, Mr Rabone wrote a letter of complaint to the Trust. The letter began

After much deliberation in what has been a difficult period for my family, I am writing to express our concerns regarding the treatment given and decisions made by members of your medical staff in the Mental Health Unit at Stepping Hill Hospital in relation to our daughter Melanie in March and April. We feel that the failure to successfully treat her clinical depression and the subsequent granting of home leave from a secure ward, directly contributed to her taking her life on 20 April 2005, aged 24 ...

The letter focussed on a number of points, including the 'hasty, and in our opinion, poor judgment' of Dr Meagher in recommending that Melanie be allowed to go on home leave.

In a letter dated 13 September 2005, the 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. .

He 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 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 September the Trust established a Serious Untoward Incident ('SUI') Investigation. The members of the investigating panel were Dr G McDade (a Consultant Pyschiatrist), 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 it came to consider during the course of its protracted investigation was: 'Who did the risk assessment on 19 April, and where is it?'

By 8 May 2006 the SUI Investigation panel notes included

1. Who did the risk assessment on 19 April 2005?

In nursing and medical notes no further risk assessment documented

...

4/5. No formal comment about risk when MR was granted leave.

Risk assessment not completed properly – didn't convert into management plan. CPA5 summary not completed. Stockport used their own documentation.

This is another aspect of the case that it will be necessary to consider later in this judgment.

In a letter to the Trust dated 18 June 2006, Mr Rabone raised two particular matters of concern. First, the Trust's failure to complete the investigation, notwithstanding assurances given by Dr McDade and Mr Boaler on 17 March that it would only take another 6 weeks; and secondly, the suitability of Dr Meagher to practise psychiatry in the light of complaints which had been made against him to various professional bodies. The discovery of these complaints had been made as a result of the family seeing Dr Meagher on the television programme, University Challenge. It appeared that he was studying for a PhD in politics at Manchester University. After the programme, Amanda Rabone had carried out an internet search on Dr Meagher.

On 10 August Mr Rabone telephoned to reiterate his complaints about the delay in producing the SUI Investigation Report; and, on 11 August 2006, the Claimants issued a Claim Form alleging breaches of the HRA and the Law Reform (Miscellaneous Provisions) Act 1934 ('the Law Reform Act'). One of the issues in the trial relates to the circumstances in which the Proceedings came to be issued, slightly less than 4 months after the expiry of the one-year time limit provided for by the HRA.

On 11 October 2006 the Claimants were informed that the SUI Investigation Panel's draft Report had been 'submitted for approval by the Trust's committees'. Among those to whom the draft was sent were Hempsons, the Trust's solicitors in the present action, Dr Meagher and Nurse Tatnall.

On 16 March 2007 the Trust issued the SUI Report of the Investigation 'Following the death of Miss MR'. Among the observations in the 14-page document was (1) a note that no documented risk assessment had been identified; (2) a criticism of Melanie's fragmented and discontinuous treatment, and crucially (3) the conclusion,

... we consider the granting of the period of overnight leave to have been premature.

One of the criticisms made by the Claimants in these proceedings is that changes were made to earlier drafts so as to make it seem that there had been no disagreement among the medical and nursing staff about the decision to allow Melanie home on leave on 19 April 2005.

The Claimants' Particulars of Claim and Schedule of Loss and Damage were served with a letter dated 25 September 2007; and on 12 December 2007 the Trust served its Defence. The Defence included the averment, later abandoned, that the decision to allow Melanie home leave was reasonable.

Following a Part 36 offer from the Claimants, a consent order dated 19 May 2008 was made by which the Trust agreed to pay the Claimants the sum of £7,500 in settlement of the claim under the Law Reform Act, together with the costs of that claim. The form of the order contained the following,

For the avoidance of doubt the Claimants are continuing their claims under the Human Rights Act 1998;

and in relation to costs,

For the avoidance of doubt this excludes the costs in relation to the claims brought under the Human Rights Act, which claims are continuing.

On 17 April 2009 the experts' reports were exchanged. The view of Dr Richard Caplan, the expert psychiatrist engaged by the Trust, was that Dr Meagher's decision to allow Melanie home leave on 19 April 2005 without a support plan was 'one that a reasonable practitioner would not have made'. This was a view shared by Dr Darryl Britto, the expert psychiatrist retained on behalf of the Claimants. Neither of the experts considered that the Trust had been 'grossly negligent' in its decision; however Dr Britto thought that there had been 'systemic' failures in her care.

On 6 May 2009, and in the light of Dr Caplan's opinion, Hempsons (acting for the Trust) wrote a letter to Pannone in which they admitted that the Trust had breached its common law duty of care to Melanie, although they continued to deny the HRA claims. On the next day the Chief Executive of the Trust wrote a letter to the Claimants apologising to them for the error in allowing Melanie to go on home leave on 19 April 2005.

The Parties' cases in summary

The Claimants (by Mr Francis QC) contended that the Trust was in breach of its obligation to take preventative operational measures to protect Melanie's life under article 2 of the HRA, either on the basis she was a voluntary mental patient with suicidal inclinations, or on the basis that she was a patient who should be regarded as a detained patient. In addition they claim that there was a 'systemic' breach of article 2 in the assessment of the risk of suicide; and further there was a failure properly to investigate Melanie's death in breach of the investigatory obligations under article 2.

The Trust (by Ms Carss-Frisk QC) denied these claims and the factual assertions on which they are based. It further submitted that the claims must fail since the Claimants were not 'victims' within the meaning of HRA and had brought their claim out of time in relation to the operational and systemic claims.

Issues

In a written document prepared after the hearing the parties agreed that the following issues arose for consideration:

(1)

a) Whether the Trust had an operational obligation under article 2 of the HRA in light of the fact that Melanie was a voluntary mental patient who was not detained under the Mental Health Act;

b) If not, whether Melanie should nevertheless be regarded as being detained at the time of Dr Meagher's decision on 19 April 2005?

(2) If there is an affirmative answer to either of (1)(a) or (b), whether the test of 'a real and immediate risk to life' is satisfied?

(3) Whether there was a 'systemic' breach of article 2?

(4) Whether 'serious negligence', in the sense of a collective failure to provide protection to Melanie, amounted to a breach of article 2?

(5) In relation to any substantive breaches of article 2, whether it was causatively linked to Melanie's death?

(6) Was there an actionable breach of an investigatory obligation under article 2 by the Trust?

(7) Whether the Claimants are victims for the purpose of s.7(7) of the HRA?

(8) Whether it is equitable to extend time for bringing the claim under s.7(5) of the HRA in relation to the operational and systemic claims?

(9) Whether, if an actionable breach of article 2 were established, the Claimants should be awarded damages or some other remedy?

Issue 1 - The 'Operational' issues

The law

Article 2 of the Convention provides so far as relevant:

1. Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

The State's obligations under article 2.1 include both a negative obligation to refrain from the intentional and unlawful deprivation of life, and a positive duty to protect life. The general nature of this positive duty was described by the ECtHR in Osman v. United Kingdom (2000) 29 EHRR 245.

[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 preventive operational measure to protect an individual whose life is at risk from the criminal acts of another individual.

[116] For the Court, and bearing in mind the difficulties involved in policing modern societies, the unpredictability of human conduct and the operational choices that 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 …

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 the 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 nature of the positive obligation is 'to take preventive operational measures to protect the individual whose life is at risk'. In Osman the nature of the risk was 'from the criminal acts of others'; but the Court noted that there were other 'well-defined circumstances' where the obligation arose. The Court further noted a qualification to the positive obligation: it did not mean that 'every claimed risk to life' entailed a requirement to take operational measures, for that would impose 'an impossible or disproportionate burden' on the state. The obligation arose where it is known or ought to have been known at the time that there was 'a real and immediate risk to life'.

In Savage v South Essex NHS Trust [2008] UKHL 74, Lord Rodger of Earlsferry defined the State's duty to protect the lives of detained mental patients.

[49] … 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. As explained in Herczegfalvy v Austria (1992) 15 EHRR 437, 484, para 82:

At [68]-[72] Lord Rodger summarised the relevant obligations of health authorities and drew attention to the difference between the general 'overarching' obligation under article 2 and the further 'operational obligation'.

[68] In terms of article 2, health authorities are under an over-arching obligation to protect the lives of patients in their hospitals. In order to fulfil that obligation, and depending on the circumstances, they may require to fulfil a number of complementary obligations.

[69] In the first place, the duty to protect the lives of patients requires health authorities to ensure that the hospitals for which they are responsible employ competent staff and that they are trained to a high professional standard. In addition, the authorities must ensure that the hospitals adopt systems of work which will protect the lives of patients. Failure to perform these general obligations may result in a violation of article 2. If, for example, a health authority fails to ensure that a hospital puts in place a proper system for supervising mentally ill patients and, as a result, a patient is able to commit suicide, the health authority will have violated the patient's right to life under article 2.

[70] Even though a health authority employed competent staff and ensured that they were trained to a high professional standard, a doctor, for example, might still treat a patient negligently and the patient might die as a result. In that situation, there would be no violation of article 2 since the health authority would have done all that the article required of it to protect the patient's life. Nevertheless, the doctor would be personally liable in damages for the death and the health authority would be vicariously liable for her negligence. This is the situation envisaged by Powell.

[71] The same approach would apply if a mental hospital had established an appropriate system for supervising patients and all that happened was that, on a particular occasion, a nurse negligently left his post and a patient took the opportunity to commit suicide. There would be no violation of any obligation under article 2, since the health authority would have done all that the article required of it. But, again, the nurse would be personally liable in damages for the death and the health authority would be vicariously liable too. Again, this is just an application of Powell.

[72] Finally, article 2 imposes a further 'operational' obligation on health authorities and their hospital staff. This obligation is distinct from, and additional to, the authorities' more general obligations. The operational obligation arises only if members of staff know or ought to know that a particular patient presents a 'real and immediate' risk of suicide. In these circumstances article 2 requires them to do all that can reasonably be expected to prevent the patient from committing suicide. If they fail to do this, not only will they and the health authorities be liable in negligence, but there will also be a violation of the operational obligation under article 2 to protect the patient's life. This is comparable to the position in Osman and Keenan. As the present case shows, if no other remedy is available, proceedings for an alleged breach of the obligation can be taken under the Human Rights Act 1998.

Baroness Hale of Richmond's approach was to similar effect:

[97] … the positive protective obligation under article 2 is generally an obligation to have proper systems in place. But in some circumstances an operational duty to protect a particular individual is triggered. The latter duty is not engaged by ordinary medical negligence alone.

Lord Walker of Gestingthorpe and Lord Neuberger of Abbotsbury agreed with the opinions of Lord Rodger and Baroness Hale. Lord Scott of Foscote set out his view at [11-12],

[11] As to persons known to be a suicide risk, the state has no general obligation, in my opinion, either at common law or under article 2.1, to place obstacles in the way of persons desirous of taking their own life ...

[12] Persons in police custody or in prison are in a different situation. Their personal autonomy has been lawfully restricted by action taken against them by the state. The restrictions imposed may, for some, bring about depression, feelings of hopelessness and thoughts of suicide. Such a state of mind, if apparent to those who have charge of the person concerned, would constitute, in my opinion, a circumstance highly relevant to the standard of protection required by the positive obligation under article 2.1.

In Savage the House of Lords defined and implicitly confined the situations where the operational obligation in relation to mental patients arose. It occurred in circumstances where the patient was compulsorily detained.

Application to the facts

In attractive submissions made on behalf of the Claimants Mr Francis QC submitted that a line could not properly be drawn between mental patients who were compulsorily detained and those who were being voluntarily treated in hospital. First, the reasoning in Savage did not on proper analysis depend on formal detention. Secondly, the underlying basis for treating prisoners, conscripts and mental patients as a separate category was the State's assumption of responsibility for the individual. Thirdly, in any event, to be a detained mental patient did not require either formal detention or a lack of capacity. On the facts of the case, Mr Francis submitted, the State had assumed responsibility for Melanie's treatment and, in any event, she had been 'effectively detained'.

So far as the facts are concerned, I find as follows. First, as Dr Britto and Dr Caplan agreed, when Melanie was admitted to hospital on 11 April 2005, she lacked the capacity to consent to her treatment. Although she had regained that capacity by 19 April, the experts agreed that, if she had insisted on leaving on her own terms, there should (and would) have been an assessment under the Mental Health Act. Such an assessment would have been likely to have led to her compulsory detention under the Mental Health Act (see the Joint Expert Report Q34).

From 11 to 19 April Melanie was being treated on a ward whose doors were secured by means which prevented her leaving when she wanted. However, this appears to have been common to all wards in the hospital and was designed to prevent unauthorised people wandering into the ward, rather than preventing patients from leaving if they wished. I accept however that Melanie was required to ask permission if she wished to leave Warren Ward; and that her temporary leave to go home was conditional on the agreement of hospital personnel. I also accept the Claimants' submission that the nursing notes demonstrate the limitation on her personal freedom. Thus, for example on 15 April there is an entry,

… has again requested time out but advised in view of level of observations this would not be possible.

The reference to the level of observations was to the observations made at 15 minute intervals by the nurses on the ward.

On 19 April, although she had expressed a wish to leave hospital for a week, in fact Melanie's leave was confined to 2 days.

Nevertheless, she was not detained on 19 April; and when she requested home leave on 19 April, Dr Meagher agreed.

In the light of those findings I turn to Mr Francis's submissions.

First, it seems to me that, whether or not the reasoning depended on formal detention, the House of Lords in Savage was drawing a distinction between those who are detained and lack capacity, and those who are not detained and have capacity to consent or object to treatment. The distinction was noted by Baroness Hale in Savage,

[101] ... 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 if 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?

[102] My Lords, we do not have to answer those questions today and in my view we should not try to do so. The possibility that they may arise in future should not deter us from following the clear thrust of the Strasburg jurisprudence in the case which we do have before us, which concerns a patient who was compulsorily detained in a hospital under the Mental Health Act 1983.

Secondly, although the test of 'an assumption of responsibility' may be a helpful way of viewing the duty of the State, its application does not necessarily widen the duty. All hospitals assume responsibility for the safety and treatment of patients; but that does not mean that the operational duty under article 2.1 arises in relation to all patients. On the contrary, it is clear that it does not. In Powell v. United Kingdom [2000] 30 EHRR CD 362, the ECtHR stated,

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 [the state's] responsibility under the positive limb of Article 2. However, where a Contracting State has 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.

The distinction was highlighted by Lord Rodger in Mitchell v Glasgow City Council [2009] UKHL 11,

[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' ...

[66] The obligation on 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.

Thirdly, in my judgment, the important factor which is present in cases where the operational duty arises under article 2.1 is the exercise of coercive powers over an individual who (by reason) of the exercise of such powers is particularly vulnerable. Whatever might have been the position if she had disagreed with the view of Dr Meagher, Melanie had not been detained for assessment or treatment on 19 April 2005. She was not subject to

complete and effective control over [her] care and movements,

to use the words of the ECtHR in HL v United Kingdom (2005) 40 EHRR 761.

After 11 April she had acquired the capacity to become and remain an informal patient; and had agreed to her treatment on this basis. That capacity had not changed when she left the Hospital on 19 April.

I note that the distinction between those who are detained and those who are not but might have been, appears to have been accepted by the Court of Appeal in a short obiter passage at the end of the Judgment of the Court in R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440, [2006] 1 WLR 461.

[108] We add only this. 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.

A further recent decision of the Court of Appeal, Secretary of State for Defence v. Smith [2009] EWCA Civ 441 at [89], has re-emphasised the importance of the distinction drawn in Takoushis between those who are detained and those who are not.

It follows from these citations that a line has been drawn between those who are detained mental patients and those who are not. The operational obligation is confined to the former.

There are good reasons for drawing this distinction. As Baroness Hale noted in Savage, involuntarily detained patients are deprived of their personal liberty and other Convention rights, and cannot choose their own medical treatment. In contrast, and subject to the invocation of powers under the Mental Health Act, voluntary mental health patients can leave when they want, are not deprived of any Convention rights and have input in their own medical treatment.

For these reasons, I answer the questions raised by the first and second part of Issue 1, in each case, No.

Issue 2 - Whether there was 'a real and immediate risk' to Melanie's life, of which the Trust knew or ought to have known; and in respect of which they failed to take reasonable steps to avoid?

In the light of my conclusion on Issue 1, this issue does not arise and in these circumstances I can deal with this issue somewhat more shortly than otherwise I would have done.

The law

The cases cited by the parties show that the 'real and immediate risk' test is more easy to describe than to apply.

In Van Colle v Chief Constable of the Hertfordshire Police [2008] UKHL 50, [2009] 1 AC 225, Lord Bingham stated

[30] The appellant chief constable, and the Secretary of State, relied on the ruling of my noble and learned friend, Lord Carswell, in In re Officer L [2007] 1 WLR 2135, para 20, that the test of real and immediate risk is not one easily satisfied, the threshold being high, and I would for my part accept that a court should not lightly find that a public authority has violated one of an individual's fundamental rights or freedoms, thereby ruling, as such a finding necessarily does, that the United Kingdom has violated an important international convention. But I see force in the submission of Mr Owen for the Equality and Human Rights Commission, that the test formulated by the Strasburg court in Osman and cited on many occasions since is clear and calls for no judicial exegesis. It is moreover clear that the Strasburg Court in Osman, para 116, roundly rejected the submission of her Majesty's Government that the failure to perceive the risk to life in the circumstances known at the time or to make preventative measures to avoid that risk must be tantamount to gross negligence or wilful disregard if the duty to protect life. Such a rigid standard would be incompatible with the obligation of member states to secure the practical and effective protection of the right laid down in article 2.

See also Lord Brown of Eaton-under-Heywood at [115]

In Savage (above) Lord Scott stated, in relation to the standard of protection required by the positive obligation under article 2.1,

[13] Mentally ill patients detained under section 3 are in a position in some respects similar to, but in other respects very difference from, the position of those in police custody or prison. Their position is similar in that they are detained by law ... Their position is dissimilar in that they are detained ... for their protection and not as a punishment ... The patients will be there for their protection ... and, unless protection of the public from them is one of the reasons for their having been sectioned, it would behove the hospital or institution to respect their personal autonomy and to impose restrictions on them to the minimum extent of strictness consistent with the need to protect them from themselves ... the hospital were, in my opinion, entitled, and perhaps bound, to allow Mrs Savage a degree of unsupervised freedom that did carry with it some risk that she might succeed in absconding. They were entitled to place a value on her quality of life in the hospital and accord a degree of respect to her personal autonomy above that to which prisoners in custody could expect.

A similar point was made by Baroness Hale

[100] The trigger is a 'real and immediate risk to life' about which the authorities knew or ought to have known at the time. That has rarely been shown ... If the duty is triggered, it is, as it was put in Keenan's case 33 EHRR 913, para 92, to do 'all that reasonably could have been expected of them to prevent that risk'. In judging what can reasonably be expected, the court has shown itself aware of the need to take account of competing values in the Convention, in particular the liberty and autonomy rights protected by articles 5 and 8. The steps taken must be proportionate. If this is so in prison, it must be even more so in hospital, where the objectives of detention are therapeutic and protective rather than penal. Developing a patient's capacity to make sensible choices for herself, and providing her with as good a quality of life as possible, are important components in protecting her mental health. Keeping her absolutely safe from physical harm, by secluding or restraining her, or even by keeping her on a locked ward, may do more harm to her mental health. In judging what can reasonably be expected, the court has also taken into account the problem of resources. The facilities available for looking after people with serious mental illnesses are not unlimited and the health care professionals have to make the best use they can of what they have...

In applying the Osman test the Court must be careful to avoid the clarity of hindsight. In Van Colle, the claimants' son had been shot dead just before giving evidence at his assailant's trial. His death followed intimidation by his killer of which a particular police officer was aware. Lord Bingham set out the caution that needs to be adopted in such cases

[32] In its formulation of the 'real and immediate risk' test the Strasbourg court...laid emphasis on what the authorities knew or ought to have known 'at the time'. This is a crucial part of the test, since where (as here) a tragic killing has occurred it is all too easy to interpret the events that preceded it in the light of that knowledge and not as they appeared at the time. In the present case the Court of Appeal expressly warned itself against the dangers of hindsight...but I do not think that the judge, in the course of her lengthy judgment, did so. Mr Faulks, for the chief constable, was in my view right to submit that the court should endeavour to place itself in the chair of [the police officer] and assess events as they unfolded through his eyes. But the application of the test depends not only on what the authorities knew, but also on what they ought to have known. Thus stupidity, lack of imagination and inertia do not afford an excuse to a national authority which reasonably ought, in the light of what it knew or was told, to make further enquiries or investigations: it is then to be treated as knowing what such further inquiries or investigations would have elicited.

Although a number of cases were cited in which observations have been made as to what constitutes 'a real and immediate risk' to life, those cases are fact-specific, and the observations particularly directed to those facts. In my view, and subject to the citations set out above, the Court should, to adopt the words of Lord Bingham in Van Colle, treat the test in Osman as not needing further judicial exegesis.

Application to the facts

For the Claimants, Mr Francis QC submitted that both experts had agreed that there was plainly a 'real' risk of suicide on 19 April; and the only issue was whether it was an 'immediate' risk of suicide. He relied on Dr Britto's view that there was an extremely high probability of suicide: of the order of 70%.

For the Trust, Ms Carss-Frisk QC submitted that Dr Caplan's assessment of risk was to be preferred. In Dr Caplan's view the risk was approximately 5% on 19 April (after leaving hospital) increasing to 10% on 20 April and 20% on 21 April. Dr Caplan had described the risk of suicide as low to moderate.

One of the matters which bears on the Trust's knowledge of the risk of suicide is whether its staff knew or ought to have known of the existence of Melanie's note written on the back of her sister Amanda's verses. It is the Claimants' case that this was handed into the hospital by Mr Rabone; and that it was not taken into account, as it should have been, when assessing the risk of suicide at the point when home leave was being considered. The Trust does not accept that either the original or a copy of the note was handed in.

I accept the evidence of Amanda Rabone that she saw the note during the week of 11-15 April; and that she recognised its significance and handed it to her father. Mr Rabone's evidence was that he copied the note and handed a copy to Nurse Julia Kilfoyle either on Thursday 14 or Friday 15 April. There is however no copy of the note on any relevant files, and no reference to it in the nursing notes. Nor did Nurse Kilfoyle remember being given it.

The only reference to a suicide note was made on Monday 11 April, when there is a reference to a suicide note in the Nursing Notes,

Father found a suicide note last week.

This was a reference to a suicide note of 6 April, which Mr Rabone had found while Melanie was waiting to go into hospital on 6 April. His evidence was that he handed the note into staff on Warren Ward a day or two after she was admitted. Although the medical and nursing records are criticised by the Claimants for their failure to analyse risk, the Nursing Notes contain a comprehensive narrative; and it would be surprising if a suicide note had been entirely overlooked. In addition there is a record of a telephone call made by Mr Rabone to the ward at 1.00 pm on 15 April in which he told staff,

... [Melanie] has admitted that she has experienced fleeting suicidal thoughts since admission.

As Ms Carss-Frisk observed, this would be an odd way of expressing his concern if he knew that he had already handed in a note expressing suicidal thoughts in Melanie's own hand. It is perhaps also surprising that the note was not mentioned at the meeting between the Claimants and Dr Meagher shortly after Melanie's death when another note (dated 11 April and found after her death) was discussed. Nor was Mr Rabone's recollection of handing in the note clear when he wrote on 31 August 2005. He wrote that he had handed it in,

During one of Melanie's periods in Warren Ward.

For these reasons I have concluded on balance that neither the original nor a copy of the note was handed to the Trust at this time; and it follows that it was not material to be taken into account in their assessment of the risk of suicide.

In the light of this conclusion, I return to the evidence of the experts. Whether the risk was 5%-20% or 70%, it would plainly be significant; and the decision to allow Melanie out on home leave was negligent, as has now been acknowledged by the Trust.

While I am sure that both experts were trying to assist the Court, I found the evidence of Dr Caplan of more assistance than that of Dr Britto. Although Dr Caplan's measured and careful approach was more persuasive than Dr Britto's more argumentative and didactic approach, it was not just the manner in which they gave their evidence. It seemed to me that the content of some of Dr Britto's evidence was unconvincing: for example, his insistence that Melanie's mental condition on 19 April could not have improved since her admission despite the contemporaneous notes which suggested that it had, and his insistence that the fact that there had been no formal reassessment of risk (a measurement) on 19 April was an indicator of the level of risk.

In my judgment, looking at the matter broadly and guarding against hindsight, there was a low to moderate (but nevertheless, significant) risk of suicide. I am not persuaded that it is helpful to analyse this in terms of a percentage figure, despite the experts attempting to do so. The exercise is predicting the voluntary act of a patient rather than the course of an illness. There was a real risk, but it was not an immediate risk; and the risk had to be measured against what steps it was reasonable to take so as to avoid it. That in turn has to be assessed by reference to the respect due to Melanie's personal autonomy. Taking all these matters into account, I would not have been persuaded (on the present hypothesis) that there had been a breach of article 2.

Finally, among the factual issues which the parties suggested should be addressed in a written document produced after the hearing, were questions relating to whether Melanie would have insisted on going home on leave against medical advice, and whether she would have been detained under the Mental Health Act if she had. Again I can state my views shortly. The issue would not have arisen in the way the questions suggest. Melanie was intelligent and determined. She plainly wanted to leave hospital and would not have placed herself in the position of being detained against her will. Both sides (the medical staff for sound clinical reasons) would have wished to avoid the confrontation which the questions presuppose.

Issue 3 - Whether there was a systemic breach of article 2?

In §7.3.3 of the Re-Amended Particulars of Claim the Claimants have contended that the Trust failed

to adopt systems of work to protect the lives of patients, including the deceased.

The Claimants' case is that the operational obligation included a duty to ensure that the hospital adopted systems of work which protected the lives of patients. In particular, there should have been systems in place to ensure that (i) patients were not left without medical review or assessment for over a week after their admission, (ii) patients were subject to a risk assessment before being allowed home and (iii) when making an assessment of risk, the views of relevant staff, including named nurses (in the present case, Nurse Tatnall) were taken into account.

Mr Francis submitted that there should have been a systematic approach to risk assessment rather than the use of anecdotal records. Although the application of the CPA Policy would have been sufficient to discharge this part of the operational obligation, there was a systemic failure to implement it. The Trust's medical and nursing staff had not been trained in the use of the CPA and the relevant forms had not been provided. Some compliant documentation had been filled in by Nurse Tatnall following Melanie's admission on 11 April 2005; but the CPA Policy had plainly not been fully implemented in Melanie's case since there had not been a risk management plan in place between 11-19 April, and there had been no formal reassessment of risk on 19 April when she was allowed to leave.

For the Trust, Ms Carss-Frisk submitted that the relevant article 2.1 obligation in relation to mental patients who were not detained was a duty owed by the State to adopt proper systems, see Powell (above) and Savage (Lord Rodger at [69]). It was not the duty of an individual hospital or Hospital Trust. In the present case the Trust had an appropriate system of work which protected the lives of patients; and if, and in so far as, there was a failure to comply with the precise terms of the CPA Policy which was in force in April 2005, this did not constitute a systemic failure. There were forms which could have been used for risk assessment; and, in fact, a process of risk assessment had been carried out in Melanie's case at the time that home leave was being considered.

Conclusion on Issue 3

The relevant obligation is 'the general obligation' described by Lord Rodger in Savage at [69]. In my judgment what occurred at the Hospital fell far short of a failure to have a system for the assessment of risk of suicide in mental patients. The evidence of Mr Neil Jones, the Clinical Services Manager of the Trust, was that there had been a CPA policy within the National Health Service since the early 1990s. In April 2005 a new written CPA was in force; but the Trust was still using pre-existing forms to implement the new policy. This was because the Trust had not beenin existence long enough for all the forms to have been standardised.

It is correct that the type of form which had been used to assess Melanie on admission was not used in assessing her on 19 April; but there was plainly a system for assessing the risk, and noting the conclusions. As the SUI Report had noted in March 2007, the Risk Assessment had not been properly documented. The criticism was not that it had not been made. It was the implementation of the system and, in particular, the clinical misjudgement which led to her death rather than a failure by the Trust to provide a proper system.

Issue 4 - Whether serious negligence, in the sense of a collective failure to provide protection for Melanie, amounted to a breach of article 2?

This issue developed in a roundabout way. The Trust pleaded that the Claimants had to prove gross negligence in order to establish an article 2 breach. By the end of the closing submissions it was common ground that this was not the appropriate test.

However, Mr Francis submitted that, if the level of culpability is more than 'simple negligence' in the sense of a negligent error of judgment or negligent individual failing (see Powell above), a question arises as to the point at which there may be an infraction of article 2 rights. He submitted that this point was reached when there was negligence which was 'properly regarded by the court as serious'. He further submitted that this would arise where there was a collective failure or combination of failings to protect the life of a vulnerable patient. In the present case, the failures were many and their effect was foreseeably to aggravate the risk of a successful suicide attempt. It was not just a failure of one professional judgment, but a collective failure to assess the risk and to deal with it.

Ms Carss-Frisk objected that this argument had never been raised until it appeared in the Claimants' skeleton argument; and that there was no basis in law for a test of 'serious negligence' which engaged rights under article 2 in circumstances where 'negligence' did not. On the contrary there was no suggestion in any of the cases that a test of anything less than 'gross negligence' sufficed. She submitted that neither of the experts had suggested that the admitted breach of duty was sufficiently serious as to constitute gross negligence, nor (if this was a matter for experts) had they been asked whether it was 'serious' negligence. In addition, she complained that Dr Meagher was never asked about a complaint which was grounded, at least in part, on a contention that 'serious' negligence would be negligence 'sufficiently serious to rank as serious professional misconduct' (see the Claimants' skeleton at paragraph 5.3.1).

It seems to me that the Claimants' new argument is unfounded, whether looked at as a matter of authority or as a matter of principle. So far as authority is concerned, there is no basis for the test of 'serious negligence'. So far as principle is concerned, it appears to be both inconsistent with the more general observations in for example Powell and Savage (above), and largely impractical in application. The test of negligence has been established over many years and is relatively easily applied in the area of health care. The concept of Gross Negligence is a similarly familiar concept in the criminal law, even if its application may sometimes be problematic. An intermediate standard of 'serious' negligence seems to me to introduce uncertainty into an area of the law in which certainty is to be valued.

I would therefore answer the question posed by this issue: 'serious' negligence, if capable of proof, would not be sufficient to ground a claim under article 2. In those circumstances I decline the parties' invitation to find, as a fact, whether there was 'serious' negligence.

Issue 5 - In relation to any of the substantive breaches of article 2, whether it was causatively linked to Melanie's death?

Again I can deal with this matter relatively shortly. If, contrary my judgment, the Claimants had shown substantive breaches of the Trust's duties under article 2, I did not understand Ms Carss-Frisk to argue that Melanie's death was not causatively linked to such breaches.

In Van Colle at [138] Lord Brown of Eaton-under-Heywood drew the distinction between the approach of the English Civil Law and under the Convention to issues of causation

… a looser approach to causation is adopted under the Convention than in English tort law. Whereas the latter requires the claimant to establish on the balance of probabilities that, but for the defendant's negligence, he would not have suffered his claimed loss … under the Convention is appears sufficient generally to establish merely that he lost a substantial chance of this.

So far as the contention of a system failure is concerned, I am not satisfied that a system which was compliant with the Trust's duties, either might or would have led to a refusal of home leave.

Issue 6 - Was there an actionable breach of the 'investigatory' obligation under article 2 by the Trust?

The Claimants' case on this issue is founded on a well-established principle that the obligation to protect life under article 2 includes a duty to ensure that there is some form of official investigation into a death which may be the result of a breach of article 2. Such an investigation should be (i) independent, (ii) accessible to the victim's family, (iii) carried out reasonably promptly and, in so far as possible, (iv) provide a sufficient element of public scrutiny and determination of article 2 issues.

In their opening the Claimants made many criticisms of the SUI investigation and report, including (i) a failure to record different views about Melanie's fitness to leave, in particular from Dr Cook and Nurse Tatnall, (ii) a failure to take sufficient account of the implications of findings by the GMC against Dr Meagher which were relevant to his credibility, (iii) a failure to alert the Coroner to the implications of such findings, (iv) a failure properly to record the evidence given by Dr Cook and Nurse Tatnall, (v) a failure to ensure that Dr McDade agreed to this failure, (vi) a failure to disclose relevant information to the Claimants.

In closing, and having investigated some of these matters in evidence, Mr Francis's submissions were more confined. He focussed on the Report's failure to refer to evidence which suggested that Dr Cook and Nurse Tatnall had expressed doubts about the decision to allow Melanie home on leave, and the omission of Dr McDade's view about the possibility of detaining Melanie under the Mental Health Act. At paragraph 15.d.ix of the Claimants Closing Submissions it is said,

It comes as an important comfort to the family that in fact they were not alone at the time in having worries about the proposed leave and that at least one nurse now regrets the lack of support for Mrs Rabone's expression of concern at the time.

For the Trust, Ms Carss-Frisk relied on a summary of the relevant law in the Judgment of the Court of Appeal in the Takoushis case (see above) at [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.

This obligation has been described in the recent decision of the Grand Chamber in Silih v Slovenia (Application No. 71463/01) at [155], in the field of medical negligence, as an obligation

... to set up an effective judicial system for establishing both the cause of death of an individual under the care and responsibility of health professionals and any responsibility on the part of the latter (see Calvelli and Ciglio cited above §49).

She submitted that the obligation to set up an effective system was that of the State's and that, in any event, such obligation was satisfied by (i) the Inquest and Verdict on 29 September 2005; and (ii) the availability of the present legal proceedings by which the circumstances of Melanie's death could be investigated. She also submitted that the SUI process was a proper investigation which received submissions from the Claimants; and that neither the conclusions in the Report of March 2007, nor the process by which those conclusions were reached, were susceptible to challenge or formed a proper basis for a claim under article 2.

In my view Ms Carss-Frisk's submissions were correct.

It seems to me that there is no proper basis for concluding that the Trust was under an article 2 investigative obligation to provide statements from staff or medical records to the Coroner. It was for the Coroner to call for such material as would assist in the Inquest, exercising statutory powers.

There was a clear and well-established process for investigating and reporting on the death of Melanie during home leave. The SUI Investigation and Report concluded that Dr Meagher had been at fault; and the present proceedings have led to an admission that Trust was negligent and to an apology to the Claimants.

Time was taken during the course of the trial to investigate the views of Nurse Tatnall about the decision made on 19 April. I have concluded that his views were not misrepresented in the Report; and that he had not expressed doubts about the decision to allow Melanie home on leave at the time. His evidence in §2 of his first statement was clear and was not significantly shaken in cross-examination.

I did not express any opposition to Ms Rabone being given leave either before or after the ward round on the 19 April 2005. I did not oppose leave. I did not consider her to be a high suicide risk should she go on leave that day following the ward round.

Like others he was affected by what occurred, and he was concerned about the decision to allow Melanie home in the light of her subsequent suicide.

Although I have concluded that the Investigation and Report is not susceptible to challenge and does not form the basis of a claim under article 2, there are, in my judgment, lessons which should be learnt from the investigation into Melanie's death.

First, the time between the setting up of the SUI panel in September 2005 and the completion of the Report in March 2007 (a period of 18 months) was far too long. The likelihood or currency of litigation may present difficulties to an investigation, but does not begin to justify the delays in this case.

Secondly, the effectiveness of an investigation will depend on the collecting and recording of evidence while it is still clear in the witness's mind. There is nothing wrong in testing and, if necessary, revisiting evidence as the enquiry proceeds. However, if there are genuine differences of recollection or opinion these should be recorded, rather than protracted attempts being made to reconcile them.

For the reasons set out above I have concluded that there has been no breach of obligation by the Trust to provide a practical and effective investigation under article 2.

Issue 7 - The Status issue

This issue does not arise in relation to the Trust's investigative obligation under article 2.

The question raised by this issue is whether the Claimants are victims for the purpose of bringing a claim under the HRA. Section 7(1) of the HRA provides:

A person who claims that a public authority has acted ... in a way which is made unlawful by s.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 in any legal proceedings,

but only if he is (or would be) a victim of the unlawful act.

Section 7(7) provides,

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 the Convention reads:

The Court may receive applications from any persons, non-governmental organisation or group of individuals claiming to be a 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 the right.

The statutory framework emphasises the importance of considering whether the ECtHR would consider a claimant to be a victim. It is necessary therefore to consider decisions of the Court in order to decide whether the Claimants in this case are victims for the purpose of the HRA.

The Trust argued that the Claimants cannot pursue a claim for a substantive breach of article 2 for two reasons: first, because they have settled their claim under the Law Reform Act; and secondly, because they are not direct victims of a breach.

For the Claimants, Mr Francis submitted that there is no technicality or formality about victim status; and that close relatives have been recognised as having an interest in ensuring, not only that a death is properly investigated, but that breaches of article 2 obligations are properly recognised. The settlement of the Law Reform Act claim achieved no redress for the Claimants' loss, bereavement and distress; and the settlement should not be a means of circumventing clear breaches of Convention rights. So far as direct victim status is concerned, he submitted that the test is whether the claimant has a justifiable interest in obtaining justice, see for example Karner v. Austria [2007] 45 EHRR 33 (Grand Chamber) and Kats and others v. Ukraine (Application no.29971/04).

The settlement issue

In Powell v United Kingdom (above), the parents of a 10 year old boy, who died after a misdiagnosis by doctors, brought a number of claims including claims in negligence, and under the Law Reform Act. The Health Authority admitted negligence and agreed to pay the parents a sum by way of settlement and costs. The parents then made other claims relating to the falsification of medical records after their son's death. These claims failed before the English courts; and the parents then took their case to ECtHR. The ECtHR expressed itself in a way which indicated the difficulties which arise where there is a settlement of a claim.

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 our into his or her death.

The ECtHR made similar observations in the later case of Rowley v UK (Application No. 31914/03). In that case the mother of a son who was severely disabled and who had drowned in the bath at his residential care home, threatened to issue proceedings against the City Council, but subsequently accepted a settlement offer of £1,750 plus costs and a formal letter of apology. She subsequently complained to ECtHR of violations of article 2 and 13 of the Convention. The Court said:

… 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, among many authorities, Eckle v. Germany) … In the present case there have been numerous findings that the applicant's son was subject to inadequate care while under the responsibility of the Council …The Court would also note that the applicant settled her civil claims for damages against the Council on the basis of damages and a formal apology … While the applicant was apparently advised to accept the settlement in light of the risk of costs liability, it goes without saying that where a case is settled the parties are influenced, inevitably, by a number of considerations which affect the amount of compensation, including the saving of time and further expense and uncertainty of the final result. Furthermore, requirements to pay costs are a normal feature of civil proceedings and do not dispense applicants from the obligation to exhaust available domestic remedies.

Having regard to the considerations above, the fact the applicant settled her claims in civil proceedings accepting compensation and an apology, the Court finds that she may no longer, in these circumstances, claim to be a victim of a violation of the Convention within the meaning of Article 34 of the Convention …

In Hay v United Kingdom, (Application No. 41894/98), where the complaint under article 2 was in respect of the killing by the police of the applicant's brother and where civil proceedings against the police had been settled, the ECtHR held the complaint to be inadmissible. This was despite the settlement expressly being stated to be without prejudice to the rights of those representing the deceased's estate to pursue a petition against the United Kingdom under the Convention.

In Savage (see above) the victim status of the claimant, who was the daughter of the deceased mental patient, was discussed in the opinions of both Lord Scott and Lord Rodger, although the issue did not specifically arise for decision. The claimant's mother was a detained patient who had committed suicide. The claimant lacked the standing to bring claims under either the Law Reform Act or the Fatal Accidents Act; and therefore brought an action under s.7 of the HRA, for a breach of Article 2.

Lord Rodger considered that proceedings for an alleged breach of Article 2 could be brought under the HRA 'if no other remedy is available' at [72]. This suggests that that where, as here, claimants have another remedy (for example under the Law Reform Act), there is no scope for a further claim under the HRA. This will be particularly the case, where (as here) claimants accept settlement of their civil law claim.

The direct victim issue

It may seem odd to a neutral observer that there could be any doubt that parents who have suffered the eviscerating loss of a child were victims. However this area of the law has adopted a confined view of the status of victim.

In the case of Savage (above) Lord Scott specifically addressed the issue of whether relatives of the deceased could be victims in their own right: in other words whether they could claim independently of any claim brought on behalf of the estate of the deceased. After noting that the claimant in that case was not entitled to make Law Reform Act or Fatal Accident Act claims, Lord Scott observed at [5]

One problem, and it seems to me to be a major problem, with the claimant's claim is that a claim under section 7 of the [HRA] may only be brought by a 'victim' of the unlawful act or omission relied on … I can well understand how a member of a deceased's family may be regarded as a 'victim' for the purposes of the article 2.1 investigative obligation. An important, and perhaps the main, purpose of the investigative obligation is to enable the family of the deceased to understand why and how the deceased died and who, if anyone, was responsible for the death. It would follow that a close family member, such as a daughter of the deceased, could properly be regarded as a 'victim' of a failure by the state to discharge its investigative obligation. But I am quite unable to understand how a close family member can claim to be a 'victim' in relation to an act, in breach of the article 2.1 negative obligation, or in relation to an omission, in breach of the article 2.1 positive obligation, that had led to the death. The domestic law of a country may, as the domestic law of this country does, provide a remedy to the estate of the deceased and to the dependants of the deceased in any case where an act or omission unlawful under civil law has caused death. But I do not see it as any part of the function of article 2.1 to add to the class of persons who under ordinary domestic law can seek financial compensation for a death an undefined, and perhaps undefinable, class composed of persons close to the deceased who have suffered distress and anguish on account of the death. To do justice to the claimant, I do not imagine that her purpose in bringing the action was, or is, to obtain financial benefit for herself. She wants, I imagine, consolation of a formal vindicatory recognition that [the] hospital had failed in its duty to her mother. But that recognition has already been afforded by the verdict of the coroner's jury. What vindicatory improvement is this action expected to produce? For my part, I doubt very much the legitimacy of the claimant's prosecution of this action.

Although the point had not been argued and was therefore not part of the decision, a similar doubt about whether relatives could claim to be victims of breaches of the Convention which had not directly affected them, had been expressed by the Court of Appeal in Van Colle v Chief Constable of the Hertfordshire Police [2007] 1 WLR 1821 at [114].

... it seems to us that there is no clear basis in the Strasbourg decisions for an award to the respondents in their personal capacity, as opposed to an award for the first respondent as personal representative of their son, which is plainly justified.

The Court of Appeal's decision in favour of the claimants was overturned on appeal; and the House of Lords did not address the issue of who may claim to be a victim for the purposes of the Convention.

Conclusion on issue 7

In my view the cases to which I have referred support the following propositions.

(1) The definition of 'victim' is relatively broad when considering the investigative obligation; and is relatively narrow when considering the substantive article 2.1 positive and negative obligation.

(2) The Court will be careful to examine any claim which forms part of proceedings which have been settled, since the claim which has been settled may amount to an appropriate and sufficient vindication of article 2 rights, see for example Powell (above). However,

(3) There is no absolute bar to advancing a claim based on article 2.1 where part of the original claim has been settled. The Court's approach is likely to depend on the circumstances of the case. For example, the more egregious the breach of article 2 rights, the less likely it will be that the Court will consider the settlement of other claims, or the offer to settle such claims, should act as a complete bar. Equally, the more serious the breach of the article 2 rights, the less likely it will be that the Court will regard the claim as being barred on the sole ground of the claimant's status. In each case this is because of the overall importance of the issue which requires consideration.

(4) It is for these reasons that it will often be inappropriate to consider status as a preliminary issue; and it was for this reason that I declined the Trust's invitation to do so in the present case.

In the light of these consideration I have concluded:

(1) The claim for breach of the substantive obligation under article 2.1 is not a strong claim. On the contrary it is, as I have found, a claim which fails.

(2) Following the Claimants' own Part 36 offer, the Law Reform Act claim was settled by the Consent Order of 19 May 2008. There was a reservation of rights in relation to HRA claim; but that was not, of itself, sufficient to preserve Convention remedies, see Hay v United Kingdom (above). This was not a case where, to use the words of Lord Rodger, no other remedy was available.

(3) In addition, the Trust has now admitted a failure to provide the reasonable care for Melanie, and has apologised to the Claimants.

(4) For these reasons I have concluded that the Claimants do not fall into the category of victims for the purposes of Article 34 of the Convention, see Powell and Rowley (above). As a result, the Claimants are unable to bring a claim under the HRA by virtue of the application of section 7(7). Unlike the claimant in Savage, they had another remedy, of which they availed themselves.

(5) In view of these conclusions it is unnecessary to say anything further on the implications for this case of the direct victim issue, other than to note the difficulties raised by the observations of Lord Scott in Savage and the Court of Appeal in van Colle (above).

Issue 8 - The Limitation issue

Again this issue does not arise in relation to the Trust's investigation obligation under article 2.

Section 7(1)(a) of the HRA provides that a person who claims that a public authority has acted in a way which is unlawful under the HRA may bring proceedings against the authority in the appropriate Court. Section 7(5) provides,

Proceedings under subsection (1)(a) must be brought before the end of –

(a) the period of one year beginning with the date on which the act complained of took place; or

(b) such longer period as the court ... considers equitable having regard to all the circumstances,

but that is subject to any rule imposing a stricter time limit in relation to the procedure in question.

The various cases cited in the course of argument establish the following relevant propositions.

(1) The burden is on the Claimants to show that there are circumstances which make it 'equitable' that the trust should not be able to rely on the limitation provisions, see for example, Cameron v Network Rail Infrastructure Ltd [2006] EWHC 1133 (QB), [2007] 1 WLR 163, Sir Michael Turner at [47], and A v Essex County Council [2007] EWHC 1652 (QB), Field J at [120], who added that there will be few cases which will be decided on the burden of proof.

(2) The Court has a wide discretion in determining what is 'equitable'; and each case will turn on its own circumstances. Proportionality will generally be taken into account: see Dunn v Parole Board [2008] EWCA Civ 374, [2009] 1 WLR 728, Thomas LJ at [31-33].

(3) The reason why the time limits are shorter in HRA cases was explained by Lord Brown of Eaton-under-Heywood in the decision of the House of Lords in Van Colle (above).

As Lord Bingham pointed out in R (Greenfield) v. Secretary of State for the Home Department [2005] UKHL 14, Convention claims have very different objectives from civil actions. Where civil actions are designed essentially to compensate claimants for their losses, Convention claims are intended rather to uphold minimum human rights standards and to vindicate those rights. That is why time limits are markedly shorter ... it is also why section 8(3) of the Act provides that no damages are to be awarded unless necessary for just satisfaction.

(4) In cases concerning personal injury or death the Court may have regard to circumstances of the type listed in section 33(3) of the Limitation Act 1980 as being relevant when deciding whether to extend time, see Cameron (above) [43].

These propositions were not substantially in dispute

The circumstances referred in s. 33(3) Limitation Act 1980 include those specified in subparagraphs (a) to (c):

(1) the length of, and the reasons for, the delay in issuing the claim;

(2) the extent to which, having regard to the delay, the parties' evidence is, or is likely to be, less cogent than if the action had been brought within the time allowed;

(3) the conduct of the defendant after the cause of action arose, including the extent (if any) to which he responded to requests reasonably made for information or inspection for the purpose of ascertaining facts which were or might be relevant to the cause of action.

The Claim Form was issued on 11 August 2006: nearly 4 months after the anniversary of Melanie's death on 20 April 2006

Mr Francis submitted that an extension should be granted in respect of the claims for the substantive breaches of article 2 for the following reasons:

(1) The extension was for a relatively short period. The claimants were unaware of the possibility of such a remedy until very shortly before proceedings were started. In the period following Melanie's death they had been understandably distraught. They had made a formal complaint to the Trust and had been informed that an investigation was being carried out, but they had not received any information as to the outcome of the investigation. The final report was not completed until March 2007.

(2) The evidence in the case was not, and was not likely to be, less cogent by reason of the delays. Given the existence of contemporaneous records and the large measure of agreement achieved between the expert witnesses, the fairness of the trial was not affected by the delay.

(3) The Trust did not disclose the existence of early drafts of the investigation report containing highly significant information about the views of Nurse Tatnall until well after the commencement of these proceedings.

He further submitted that the Trust would suffer no material prejudice if the proceedings were allowed to continue, while the Claimants would undoubtedly suffer prejudice if they were not.

Conclusion on issue 8

It is right to record Mr Rabone's moving description of his family's loss in paragraph 41 of his first statement.

Both my wife and I, as well as our other two daughters, found it extremely hard to cope following Melanie's death. I do not think the loss of a child is something that one ever recovers from; but the circumstances of Melanie's death made the case even more distressing and the loss even more marked.

The Claimants' evidence was that they knew that they wished to bring a complaint about Melanie's death. They both met Dr Meagher shortly after her death and wrote the formal letter of complaint of 31 August 2005. They attended the inquest on 29 September 2005, at which Mr Rabone made oral submissions about the failings of Dr Meagher; and placed a copy of his 31 August letter (in which he blamed Dr Meagher for Melanie's death) before the Coroner. The Claimants accepted that in the year following Melanie's death they were aware, in general terms, of the HRA and possibility of bringing a legal claim. What prompted the idea of finding out more about bringing a claim was the sight of Dr Meagher on television. It appeared that he was no longer practicing as a Psychiatrist. It was this, as Mr Rabone put it in his evidence which 'jolted' them out of 'their complacency'. There were also the further discoveries made by Amanda Rabone on the internet about disciplinary proceedings in an unrelated matter, which added to thoughts of legal proceedings. Subsequently, in June or July 2006, they were told by the solicitor husband of a friend of Mrs Rabone that they might have a claim against the Trust. It was after this that they got in touch with Pannone LLP.

This case is unusual since, unlike in many cases, the limitation issue was heard at trial. It follows that in this case the merits or demerits of the claim are not matters for surmise (see for example the discussion in Dunn at [39(ii)]), they have been determined.

Although the Claimants were not aware that they had a claim under the HRA, their belief that they would get a proper explanation for the decision about Melanie's home leave in a reasonably prompt report, was a material factor in the decision to wait. If the investigation which had begun in September 2005 had produced a reasonably prompt report, then it might have led to earlier legal proceedings. I also bear in mind that, although I have found that the claims based on the substantive breaches of article 2.1 have failed and that the Claimants have failed to establish their right to claim, these were matters which were properly arguable when proceedings were begun.

Against this, there is the fact that the Claimants' natural and inevitable shock and grief did not prevent them pursuing their substantial matters of complaint with the Trust in the letter of 31 August 2005.

However, in my judgment the decisive factor is that, at this stage of the trial process, I am in a position to conclude that there is no merit in the claims to which this issue is relevant. In addition, the contents of the SUI Report, the formal acknowledgment of its negligence by the Trust and its letter of apology are very substantial matters to weigh in the balance when considering whether it would be right to extend time.

For these reasons I decline to exercise my discretion to extend time under s.7(1)(b) of the HRA.

Issue 9 - The Remedy issue

In the light of my decisions on the prior issues, this issue does not arise and I can therefore again deal with the matter more shortly.

As was made clear throughout the hearing the real purpose of the Claimants' claim was to achieve a public recognition of the serious errors that led to Melanie's death. In this they have been successful. Doubtless they hope that lessons may be learnt and that other parents will be spared the inconsolable sadness that they and their family have had to bear.

A financial award would have been difficult to assess and I am not persuaded that bereavement damages under the Fatal Accident Act is an appropriate guide. It seems to me that the proper award would have been a modest sum which would not in any way reflect the value of Melanie's life; but would, together with the other matters I have referred to, recognise the breaches of Convention rights. That sum would have been a sum of £1,500 in the case of each Claimant.

Conclusion

However, for the reasons I have set out above, I have decided that the Claimants' claim fails and there must be judgment for the Trust.

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	England and Wales High Court (Queen's Bench Division) Decisions
You are here: BAILII >> Databases >> England and Wales High Court (Queen's Bench Division) Decisions >> Rabone & Anor v Pennine Care NHS Trust [2009] EWHC 1827 (QB) (23 July 2009) URL: https://www.bailii.org/ew/cases/EWHC/QB/2009/1827.html Cite as: [2009] LS Law Medical 503, (2009) 110 BMLR 56, [2009] EWHC 1827 (QB), [2010] PIQR P2

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		23/07/2009