Protecting The Vulnerable

In Brief

Rabone extends the obligations placed on the state to protect vulnerable non-detained psychiatric patients. Parents of adult children who have died in such circumstances now have an entitlement to damages. Rabone & another (Appellants)v Pennine Care NHS Trust (Respondent) [2012] UKSC 2, [2012] All ER (D) 59 (Feb) involved Art 2 of the European Convention on Human Rights (the Convention), the most fundamental of human rights that states: "Everyone's right to life shall be protected by law." By extending the obligations placed on the state by Art 2 to vulnerable non-detained psychiatric patients, the Supreme Court has given such patients much needed protection. It has also provided a previously nonexistent legal remedy to parents who suffer the agony of losing an adult child in such circumstances.

Rabone: the facts

On 11 April 2005, 24-year-old Melanie Rabone agreed to voluntary admission to Stepping Hill Hospital having made repeated attempts to commit suicide while suffering from severe depression. The plan was to assess her for detention if she attempted or demanded to leave. She remained an in-patient until 19 April 2005 when, despite her parents' reservations, she was granted home leave with her parents for two nights. The defendant trust subsequently admitted that this decision was negligent. On 20 April she killed herself.

Under the Fatal Accidents Act 1976, Melanie's parents had no entitlement to bereavement damages and no claim for loss of dependency. Their only possible claim in their own right was for damages as victims under the Human Rights Act 1998 (HRA 1998) for breach of Art 2 of the Convention. Mr Rabone, as personal representative of Melanie's estate, claimed under the Law Reform (Miscellaneous Provisions) Act 1934 (LR(MP)A 1934) for funeral expenses and general damages for Melanie's pre-death pain and suffering. After delays on the part of the trust in investigating their complaint, on 11 August 2006 they issued proceedings.

The operational obligation

The state has a general duty under Art 2 to protect the lives of patients. Trusts must ensure that they recruit competent staff, maintain high professional standards and put in place suitable systems of work to protect patients.

However, in certain circumstances, the state must go beyond its general duty and will be in breach of Art 2 if it does not take positive steps to protect the life of a person if they know or ought to know of a real and immediate risk to that person's life. This has become known as the "operational obligation".

The starting point is that...