RABONE AND ANOTHER V PENNINE CARE NHS FOUNDATION TRUST
[2012] UKSC 2
FACTS:-
The Claimants’ daughter was born in 1981. During 2000 she was diagnosed with depression and received medical treatment. In March to April 2005 she made a number of suicide attempts, and despite interventions by the Defendant, finally she hanged herself on the 20th April 2005. A verdict of suicide was given by the Coroner in September 2005. Her parents complained that the Defendant had failed in its duty to her daughter and issued proceedings in August 2006 under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Human Rights Act 1998. They alleged a breach of Article 2 “Everyone’s life shall be protected by law” and claimed damages under Section 7 of that Act. The 1934 Act claim was settled in May 2008 for £7500 plus costs.
The case came before the High Court [2010] EWHC 1827, which dismissed it. There was then an appeal [2010] EWCA Civ 698 which was again dismissed.
JUDGEMENT:-
Lord Dyson went over the facts of the case and considered Article 2. This imposed on the state three distinct duties.
The last positive duty contained two distinct elements, first was a general duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. Second was an operational duty to protect life.
There were six issues arising in the appeal.
In relation to the first issue, Lord Dyson considered the following cases:-
Lord Dyson said that thus far, the ECHR had not considered whether an operational duty existed to protect against the risk of suicide by informal psychiatric patients. However the jurisprudence from Strasbourg showed that there was a duty to protect persons from a real and immediate risk of suicide at least where they were under the control of the state. Lord Dyson said that he was in no doubt that the trust owed an operational duty to the daughter of the Claimants to protect her from the real and immediate risk of suicide.
That brought up the second issue. In Lord Dyson’s view, taking into account the expert psychiatric evidence, the risk of suicide was certainly real. He would not accept the submission that there had to be a likelihood or a fairly high degree of risk. In relation to whether the risk was “immediate” Lord Dyson quoted from the judgment in In re Office L [2007] 1 WLR 2135 where an apt summary of the meaning of an “immediate” risk was one that was “present and continuing.” In his judgment, the risk in this case was immediate and there was a breach of duty on the part of the trust.
In relation to the third issue, family members could be victims for the purposes of Section 7(1) of the Human Rights Act 1998. Lord Dyson referred to two cases, Powell v UK (2000) 30 EHRR CD 362 and Rowley v UK (Application No. 31914/03). He did not think that these decisions clearly showed that the ECHR would take the view that acceptance of compensation in settlement of a domestic law cause of action arising from a death, necessarily meant that an individual could no longer be regarded as a victim for the purposes of an Article 2 claim arising from the same death. There was however caselaw that indicated that a Claimant could renounce a human rights claim. (Caraher v UK (Application No. 24520/94) and Hay v UK (Application No. 41894/98). Lord Dyson said that it was not easy to extract a clear statement from the Strasbourg jurisprudence, but he felt that by settling the 1934 Act negligence claim on behalf of his daughter’s estate, Mr Rabone had not renounced an Article 2 claim on behalf of himself and Mrs Rabone.
The actual £7500 paid over was not in Lord Dyson’s view, adequate redress and thus Mr and Mrs Rabone did not lose their victim status by accepting the settlement figure. He referred to the case of Bubbins v UK (2005) 41 EHRR 24. There was then the question of whether the trust had acknowledged its breach of duty. The trust had written a letter shortly after notification of the claim, admitting fault. Two cases, Rowley and Nikolova and Velichkova v Bulgaria (2009) 48 EHRR 915 showed that an authority could acknowledge a breach of Article 2 without making an explicit admission of the elements of the breach of the Article 2 duty. Therefore the trust had acknowledged that breach.
In relation to the fifth issue, limitation, the trial judge and the Court of Appeal had refused to extend the time limit because it was doomed to failure. In light of his conclusions on the above, Lord Dyson was prepared to extend the time limit. The delay past the one year time limit was one year, the evidence was not less cogent, and a complaint had been made five months after the daughter’s death. They had waited for a report from the trust before issuing proceedings, but that report had been delayed. No prejudice had been suffered by the trust. The necessary extension of time would therefore be granted.
Lord Dyson turned to quantum and considered various cases:-
Lord Dyson would award Mr and Mrs Rabone £5,000 each.
Lord Walker agreed with Lord Dyson as did Lady Hale, Lord Brown and Lord Mance.
[2012] UKSC 2
FACTS:-
The Claimants’ daughter was born in 1981. During 2000 she was diagnosed with depression and received medical treatment. In March to April 2005 she made a number of suicide attempts, and despite interventions by the Defendant, finally she hanged herself on the 20th April 2005. A verdict of suicide was given by the Coroner in September 2005. Her parents complained that the Defendant had failed in its duty to her daughter and issued proceedings in August 2006 under the Law Reform (Miscellaneous Provisions) Act 1934 and under the Human Rights Act 1998. They alleged a breach of Article 2 “Everyone’s life shall be protected by law” and claimed damages under Section 7 of that Act. The 1934 Act claim was settled in May 2008 for £7500 plus costs.
The case came before the High Court [2010] EWHC 1827, which dismissed it. There was then an appeal [2010] EWCA Civ 698 which was again dismissed.
JUDGEMENT:-
Lord Dyson went over the facts of the case and considered Article 2. This imposed on the state three distinct duties.
- A negative duty to refrain from taking life save in exceptional circumstances
- A positive duty to conduct a proper and open investigation into deaths for which the state might be responsible.
- A positive duty to protect life in certain circumstances
The last positive duty contained two distinct elements, first was a general duty on the state to put in place a legislative and administrative framework designed to provide effective deterrence against threats to the right to life. Second was an operational duty to protect life.
There were six issues arising in the appeal.
- Since the daughter was a voluntary mental patient, did Defendant have an operational obligation to her under ECHR Article 2?
- If the answer to 1) was yes, whether there was a real and immediate risk to the life of the deceased of which the trust knew or ought to have known and which they failed to take reasonable steps to avoid.
- If the answer to 2) was yes, whether her parents were victims within the meaning of Article 34 of the Convention.
- If the answer to 3) was yes, whether they lost their victim status because compensation had been paid and the trust had acknowledged its breach of duty
- Whether their claims were time barred by section 7(5) of the HRA
- Whether the Court of Appeal erred in holding that they would have awarded £5,000 each to Mr and Mrs Rabone if their claims had been established.
In relation to the first issue, Lord Dyson considered the following cases:-
- Edwards v United Kingdom (2002) 36 EHRR 487
- Keenan v United Kingdom (2001) 33 EHRR 913
- Slimani v France (2006) 43 EHRR 913
- Savage v South Essex NHS Trust [2008] UKHL 74
- Kilinc v Turkey (Application No. 40145/98
- Oneryildiz v Turkey (2004) 41 EHRR 20
- Osman v UK (2000) 29 EHRR 245
- Mammadov v Azerbaijan (Application No.4762/05)
- Watts v United Kingdom (2010) 51 EHRR 66
- Powell v UK (2000) 30 EHRR CD 362
- Z v United Kingdom Application No. 29392/95 (10 May 2001)
- Stoyanovi v Bulgaria (Application No. 42980/04)
Lord Dyson said that thus far, the ECHR had not considered whether an operational duty existed to protect against the risk of suicide by informal psychiatric patients. However the jurisprudence from Strasbourg showed that there was a duty to protect persons from a real and immediate risk of suicide at least where they were under the control of the state. Lord Dyson said that he was in no doubt that the trust owed an operational duty to the daughter of the Claimants to protect her from the real and immediate risk of suicide.
That brought up the second issue. In Lord Dyson’s view, taking into account the expert psychiatric evidence, the risk of suicide was certainly real. He would not accept the submission that there had to be a likelihood or a fairly high degree of risk. In relation to whether the risk was “immediate” Lord Dyson quoted from the judgment in In re Office L [2007] 1 WLR 2135 where an apt summary of the meaning of an “immediate” risk was one that was “present and continuing.” In his judgment, the risk in this case was immediate and there was a breach of duty on the part of the trust.
In relation to the third issue, family members could be victims for the purposes of Section 7(1) of the Human Rights Act 1998. Lord Dyson referred to two cases, Powell v UK (2000) 30 EHRR CD 362 and Rowley v UK (Application No. 31914/03). He did not think that these decisions clearly showed that the ECHR would take the view that acceptance of compensation in settlement of a domestic law cause of action arising from a death, necessarily meant that an individual could no longer be regarded as a victim for the purposes of an Article 2 claim arising from the same death. There was however caselaw that indicated that a Claimant could renounce a human rights claim. (Caraher v UK (Application No. 24520/94) and Hay v UK (Application No. 41894/98). Lord Dyson said that it was not easy to extract a clear statement from the Strasbourg jurisprudence, but he felt that by settling the 1934 Act negligence claim on behalf of his daughter’s estate, Mr Rabone had not renounced an Article 2 claim on behalf of himself and Mrs Rabone.
The actual £7500 paid over was not in Lord Dyson’s view, adequate redress and thus Mr and Mrs Rabone did not lose their victim status by accepting the settlement figure. He referred to the case of Bubbins v UK (2005) 41 EHRR 24. There was then the question of whether the trust had acknowledged its breach of duty. The trust had written a letter shortly after notification of the claim, admitting fault. Two cases, Rowley and Nikolova and Velichkova v Bulgaria (2009) 48 EHRR 915 showed that an authority could acknowledge a breach of Article 2 without making an explicit admission of the elements of the breach of the Article 2 duty. Therefore the trust had acknowledged that breach.
In relation to the fifth issue, limitation, the trial judge and the Court of Appeal had refused to extend the time limit because it was doomed to failure. In light of his conclusions on the above, Lord Dyson was prepared to extend the time limit. The delay past the one year time limit was one year, the evidence was not less cogent, and a complaint had been made five months after the daughter’s death. They had waited for a report from the trust before issuing proceedings, but that report had been delayed. No prejudice had been suffered by the trust. The necessary extension of time would therefore be granted.
Lord Dyson turned to quantum and considered various cases:-
- R (Greenfield) v Secretary of State for the Home Department [2005] 1 WLR 673
- Anufrijeva v Southwark London Borough Council [2004] QB 1124
- Savage (No.2) [2010] EWHC 865
- Kallis v Turkey (2009) EWHC 1662
Lord Dyson would award Mr and Mrs Rabone £5,000 each.
Lord Walker agreed with Lord Dyson as did Lady Hale, Lord Brown and Lord Mance.