Art. 2 of the European Convention on Human Rights gives every individual the right to life. In all functions, the state and its organs are subject to four duties. First, they must not kill, save in limited circumstances; secondly, they must properly investigate deaths; thirdly, they must maintain a legal framework that protects life. The fourth duty is most important for the vulnerable in the care of the state. Where there is a real and immediate risk to life, in certain contexts, there is a duty on the part of state actors to take preventative measures. Rabone v Pennine Care NHS Foundation Trust.
Melanie Rabone was a voluntary mental health patient with a long history of self-harm and suicide attempts, admitted to hospital following one such attempt. She was a “voluntary” patient, not detained under the Mental Health Acts. She requested a weekend’s “leave” from her hospital place, about which her parents were worried, and hung herself from a tree on her first day home.
The heart of the case is this: while the “operational” duty was set out in Osman v UK (1998), it has not yet been possible to develop a single test to determine when it applies. It has been recognised in several individual scenarios, but these remain the only guide available. Lady Hale and Lord Dyson both recanted the case law, but two cases proved influential.
In Savage v South Essex Partnership NHS Foundation Trust , a schizophrenia patient detained under the Mental Health Acts absconded and killed herself, but this was found to be as a result of the failure to put in place systems to prevent patients absconding. When she escaped, there was a real and immediate risk to her life, and, as a result, those aware of that risk were under a duty to prevent the risk eventuating. Conversely, in Powell v United Kingdom , the applicants’ son died as a result of an illness suspected by doctors a year earlier, but not tested for. At this point, there was not a real and immediate threat to life, so the operational duty did not arise.
The justices rightly found that there was a duty to preserve the life of a voluntary mental health patient, even when they could have discharged themselves and rejected care. While this expands the liability faced by the NHS, it is important that doctors adequately monitor those in their care who may be outside of the hospital. Had she insisted upon leaving, they could, and would have detained her under the Mental Health Acts.
The idea of “care within the community” is particularly important as the NHS has restructured. What Rabone demonstrates is that the NHS’ duty of care does not end at the hospital doors. When doctors assume responsibility to a patient, and when they are aware of a real and immediate threat to their life, they must act, and their failure to do so is inexcusable, both morally and in the eyes of the law.