RABONE AND RABONE V PENNINE CARE NHS TRUST [2010] EWCA Civ 698
HUMAN RIGHTS
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 Defendants argued that the claim in relation to Human Rights was out of time, having been issued more than a year after the daughter’s death. However the claim in relation to the Law Reform Act was settled in May 2008. The Defendant agreed to pay £7,500 plus costs in satisfaction of the claim brought on behalf of the daughter’s estate, which was £2,500 for funeral expenses and £5,000 for pain and suffering. The claim in relation to Human Rights continued.
The trial judge had held as follows:-
HELD:-
Lord Justice Jackson went over the facts of the case and the events leading up to the daughter’s death. There was no appeal against Finding 3, only 1,2,4,5 & 6.
Jackson LJ considered the applicable caselaw, which included:-
In the case of R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440 the Court of Appeal noted that there was an important distinction between cases where the patient was compulsorily detained and cases where he was not.
In Savage v South Essex NHS Trust [2008] UKHL 74 a patient with paranoid schizophrenia, who was detained under Section 3 of the Mental Health Act 1983, succeeded in absconding and committing suicide. The House of Lords held that the health trust had an operational duty towards mental patients with suicidal tendencies who were detained.
Jackson LJ said that the question on which he must now focus was whether the fact of formal detention under Section 3 of the Mental Health Act 1983 was critical to the House of Lords decision. He considered the judgement of each law lord.
In Mitchell v Glasgow City Council [2009] UKHL 11 M and D were neighbours, and both secure tenants of the council. D evinced great hostility to M, and eventually killed him. His widow and daughter claimed under Article 2 but their claims were struck out. However the House of Lords said that where a state had assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health grounds of conscripting him into the armed forces, the state assumed responsibility for that individual’s safety.
Jackson LJ said that in his opinion, detention under the Mental Health Act 1983 made a critical difference. Health trusts did not have the Article 2 operational obligations to voluntary patients in hospital. This case involved a voluntary patient and therefore the first ground of appeal would be dismissed.
In relation to the point regarding breach of the operational obligation (if Jackson LJ was wrong on the non-existence of an obligation), it had been established in Osman that a state authority was in breach of the operation obligation if (a) the authority knew or ought to have known of a real and immediate risk to the life of the individual concerned and (b) the authority failed to do all that could reasonably be expected to avoid that risk. The trial judge had held that the test was not satisfied. However Jackson LJ said that the evidence of one of the experts had assessed the risk as rising to 20% shortly before the suicide. In his view, the suicide was real and immediate, and consequently there would have been a breach of the operational obligation had it existed.
The judge had also held that the NHS Trust did not breach the investigatory obligation under ECHR Article 2. Article 2 required that there should be an effective official investigation into the circumstances and the cause of death. In this case there had been such an investigation and there had been extensive civil litigation. There was no breach of the investigatory obligation.
The next issue was whether the parents were in fact victims within Article 34 of the European Convention on Human Rights and section 7 of the 1998 Act. There were a number of cases on this subject, including:-
After proceedings had been issued a meeting had taken place between the two parties’ experts.
In Jackson LJ’s view, the Claimants should be treated as victims for the purpose of the Article 2 claim.
The next point was whether the Claimants should have a human rights claim, given that they had settled their negligence claim against the Defendant. Jackson LJ considered the following cases:-
Jackson LJ said that these cases did not fit together neatly, however he derived the following propositions:-
Jackson LJ said that taking all the factors into account, including the fact that an apology had been given by the Defendant, there had been effective redress and therefore the Claimants were not victims.
The next issue was whether the claim was out of time under the 1998 Act. Jackson LJ said that if the claim was doomed to failure, it was not appropriate to extend time under Section 7(5)(b) of the Human Rights Act.
In relation to quantum, if the appeal had been successful Jackson LJ would have awarded more, 5,000 pounds for each Claimant.
Rix LJ and Stanley Burnton LJ agreed.
HUMAN RIGHTS
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 Defendants argued that the claim in relation to Human Rights was out of time, having been issued more than a year after the daughter’s death. However the claim in relation to the Law Reform Act was settled in May 2008. The Defendant agreed to pay £7,500 plus costs in satisfaction of the claim brought on behalf of the daughter’s estate, which was £2,500 for funeral expenses and £5,000 for pain and suffering. The claim in relation to Human Rights continued.
The trial judge had held as follows:-
- Since the daughter was a voluntary mental patient, the Defendant did not have an operational obligation to her under ECHR Article 2.
- Even if there was an operations obligation, the Defendant was not in breach of that obligation.
- There was no systemic breach, i.e a failure to adopt systems of work to protect the life of patients
- The Defendant was not in breach of the investigatory obligation under Article 2
- The Claimants were not victims for the purposes of Section 7(7) of the Human Rights Act
- It was not equitable to extend the one year time limit for bringing the human rights claims under Section 7(5) of the Human Rights Act 1998.
- If the Claimants had succeeded in their claims, the proper award would have been £1,500 for each Claimant.
HELD:-
Lord Justice Jackson went over the facts of the case and the events leading up to the daughter’s death. There was no appeal against Finding 3, only 1,2,4,5 & 6.
Jackson LJ considered the applicable caselaw, which included:-
- Osman v UK (2000) 29 EHRR 245
- Van Colle v Chief Constable of the Herfordshire Police [2008] UKHL 50
- Keenan v UK (2001) 33 EHRR 38
- Renolde v France (2009) 48 EHRR 42
- Kilinc v Turkey (Application No. 40145/98
- Ataman v Turkey (Application No. 46252/99
- Powell v UK (2000) 30 EHRR CD 362
In the case of R (Takoushis) v Inner North London Coroner [2005] EWCA Civ 1440 the Court of Appeal noted that there was an important distinction between cases where the patient was compulsorily detained and cases where he was not.
In Savage v South Essex NHS Trust [2008] UKHL 74 a patient with paranoid schizophrenia, who was detained under Section 3 of the Mental Health Act 1983, succeeded in absconding and committing suicide. The House of Lords held that the health trust had an operational duty towards mental patients with suicidal tendencies who were detained.
Jackson LJ said that the question on which he must now focus was whether the fact of formal detention under Section 3 of the Mental Health Act 1983 was critical to the House of Lords decision. He considered the judgement of each law lord.
In Mitchell v Glasgow City Council [2009] UKHL 11 M and D were neighbours, and both secure tenants of the council. D evinced great hostility to M, and eventually killed him. His widow and daughter claimed under Article 2 but their claims were struck out. However the House of Lords said that where a state had assumed responsibility for an individual, whether by taking him into custody, by imprisoning him, detaining him under mental health grounds of conscripting him into the armed forces, the state assumed responsibility for that individual’s safety.
Jackson LJ said that in his opinion, detention under the Mental Health Act 1983 made a critical difference. Health trusts did not have the Article 2 operational obligations to voluntary patients in hospital. This case involved a voluntary patient and therefore the first ground of appeal would be dismissed.
In relation to the point regarding breach of the operational obligation (if Jackson LJ was wrong on the non-existence of an obligation), it had been established in Osman that a state authority was in breach of the operation obligation if (a) the authority knew or ought to have known of a real and immediate risk to the life of the individual concerned and (b) the authority failed to do all that could reasonably be expected to avoid that risk. The trial judge had held that the test was not satisfied. However Jackson LJ said that the evidence of one of the experts had assessed the risk as rising to 20% shortly before the suicide. In his view, the suicide was real and immediate, and consequently there would have been a breach of the operational obligation had it existed.
The judge had also held that the NHS Trust did not breach the investigatory obligation under ECHR Article 2. Article 2 required that there should be an effective official investigation into the circumstances and the cause of death. In this case there had been such an investigation and there had been extensive civil litigation. There was no breach of the investigatory obligation.
The next issue was whether the parents were in fact victims within Article 34 of the European Convention on Human Rights and section 7 of the 1998 Act. There were a number of cases on this subject, including:-
After proceedings had been issued a meeting had taken place between the two parties’ experts.
- Yasa v Turkey (1999) 28 EHRR 408
- Edwards v UK (2002) EHRR 19
- Kats v Ukraine (Application No. 29971/04)
- Micaellef v Malta (2010) 50 EHRR 37
In Jackson LJ’s view, the Claimants should be treated as victims for the purpose of the Article 2 claim.
The next point was whether the Claimants should have a human rights claim, given that they had settled their negligence claim against the Defendant. Jackson LJ considered the following cases:-
- Eckle v Germany (1983) 5 EHRR 1
- Caraher v UK (Application No. 24520/94
- Powell v UK (2000) 30 EHRR CD 362
- Hay v UK (Application No. 41894/98)
- Rowley v UK (Application No. 31914/03)
- Bubbins v UK (2005) 41 EHRR 24
- Scordini v Italy (2007) 45 EHRR 7
- Sisojeva v Latvia (2007) 45 EHRR 33
- Oyal v Turkey (Application No. 4864/05)
- Ozcan v Turkey (Application No. 18893/05)
Jackson LJ said that these cases did not fit together neatly, however he derived the following propositions:-
- Where the applicant brings a claim in his domestic courts in respect of matters which form the basis of his Convention claim and success, that success may deprive him of the status of victim under Article 34.
- In order to ascertain whether the settlement or award has that consequence, it is necessary to consider all the circumstances of the domestic litigation and to determine whether it affords effective redress for the Convention breach.
- It is necessary to consider whether (a) liability for the offending conduct has been either accepted by the state authority or found proven by the court and (b) the adequacy of any compensation awarded by the domestic court.
Jackson LJ said that taking all the factors into account, including the fact that an apology had been given by the Defendant, there had been effective redress and therefore the Claimants were not victims.
The next issue was whether the claim was out of time under the 1998 Act. Jackson LJ said that if the claim was doomed to failure, it was not appropriate to extend time under Section 7(5)(b) of the Human Rights Act.
In relation to quantum, if the appeal had been successful Jackson LJ would have awarded more, 5,000 pounds for each Claimant.
Rix LJ and Stanley Burnton LJ agreed.