This case was an appeal from a decision of Mr Justice Simon (sitting in the Queens Bench Division Manchester) in which the Judge dismissed a claim made against the Pennine Care NHS Trust in respect of breaches of Article 2 of the Human Rights Act.

 

The facts of the case are tragic. Melanie Rabone (the Claimant’s daughter, “M”) suffered from a recurrent depressive disorder. M had been admitted to the Trust previously for treatment after attempting to commit suicide. It had been noted by members of the trust on a number of occasions that M had thought of self harm and suicide. 

 

On the 11^th April 2005 M tied lamp flex around her neck in another attempt to take her own life. Following this M agreed to informal admission to the hospital. On the 19^th April she was seen by a Dr Meagher and was granted two days home leave.   Mrs Rabone expressed her grave concern about M going on leave at this time. 

 

M spent most of the following day with her mother; but in the late afternoon she said she was going to see a friend. At around 5pm she hanged herself from a tree in Lyme Park.

 

The Claimants advanced a claim on the grounds that:

 

a)      The hospital had been negligent in granting M home leave;

b)      Under article 2 the trust’s conduct had caused M’s death;

c)      The trust had failed to conduct or permit an effective investigation into her death;

d)      They were victims of these breaches and;

e)      They were entitled to recover damages under the Human Rights Act 1998 s.7.

 

The trust admitted that it had breached its common law duty of care and the negligence claim settled. At the first hearing the Court rejected the Claimant’s claim on all remaining grounds.

 

The Claimant’s appealed this decision. The Appeal Court was required to determine:

 

a)      Whether the trust had an operational obligation to M under article 2;

b)      If the operational obligation existed, whether it had been breached;

c)      Whether the Claimants were "victims" for the purpose of the 1998 Act.

 

Lord Justice Jackson’s judgement focuses primarily on the first of the three issues.

 

LJ Jackson states that although it is clear that Article 2 does contain a positive or operational obligation to protect the life of the individual this does not extend to every case where the individual is at real or immediate risk of death. 

 

After a comprehensive review of the authorities in this area, he concludes that there must be an additional element present before state authorities were placed under an operational obligation. In his view “detention under the Mental Health Act makes a critical difference”. 

 

He rejects the argument that Health Trusts have an operational obligation to voluntary patients that are in hospital where there is a “real and immediate” risk of death. He states that “it is not possible to separate voluntary patients into categories and to say that the operational obligation is owed to some categories of voluntary patients and not to others. At this stage of the judgement perhaps a little public policy is introduced as LJ Jackson makes the point “that legal obligations and liabilities should be clearly defined and understood”.

 

LJ Jackson concludes that in M’s case because she was a voluntary patient the Trust was not under an operational obligation and that the remedy for any clinical negligence was an action in negligence.

 

LJ Jackson then went on to state that if the Trust had been under an operational obligation then in his view they had breached it because the risk described by the Trust’s expert was real and immediate and there was a simple way to prevent the risk eventuating; namely not releasing M.

 

On the question of whether or not the Claimants were "victims" within the meaning given in the Human Rights Act the case contains a comprehensive review of previous decisions on this point. LJ Jackson concludes that where a Claimant brought a claim in his domestic Courts in respect of matters which formed the basis of a Convention claim and succeeded that success could deprive him of "victim" status under Art 34 of the Convention. 

 

LJ Jackson stated it was important to look at all the circumstances of the claim in the domestic Court and consider whether it afforded effective redress for the breach of the Convention. It was particularly important to look at whether liability for the breach of the Convention had been admitted or found and at whether the compensation awarded was adequate. LJ Jackson concluded that in the present case the Claimant’s had already “obtained effective redress, in so far as the law can redress for a loss which lies beyond the reach of financial compensation”.

 

The Appeal was dismissed.