Protecting the vulnerable

In the face of growing political opinion that human rights laws have "gone too far", the Supreme Court has given an important judgment which will extend the reach of the Human Rights Act with significant implications for public authorities who are responsible for vulnerable adults and children. Nigel Poole analyses the judgment.

In Rabone v Pennine Care NHS Trust [2012] UKSC 2, judgment was handed down by the Supreme Court on 8 February 2012 in a case which will have significant implications for public bodies in the way they protect the lives of vulnerable individuals for whom they have assumed responsibility.

A claim was brought by the parents of a 24-year-old woman who committed suicide shortly after having been wrongly allowed home from a psychiatric unit where she was being treated. The trust admitted negligence and paid compensation to the deceased's estate. The claimants were however not otherwise entitled to damages for their bereavement (since Melanie was over 18 years old) and so brought a claim under the Human Rights Act for damages, alleging that the trust, a public authority, had acted in contravention of article 2 of the European Convention on Human Rights (ECtHR).

Article 2 provides that everyone's right to life shall be protected by law. The ECtHR has interpreted article 2 as imposing three distinct duties on the state: a duty to refrain from taking life, a duty to investigate deaths for which the state might be responsible and a positive duty to protect life in certain circumstances. This third duty includes a duty to take operational steps to safeguard the life of an individual whose life is at risk from the criminal acts of another or from themselves. By the Human Rights Act that duty is imposed on public authorities within the United Kingdom.

Prior to this judgment, the courts had recognised certain limited categories of person to whom this operational duty might be owed, for example, prisoners, conscripts and psychiatric patients detained under the Mental Health Act. Melanie Rabone had not been detained - she was a so-called voluntary patient - but would have been detained had she not complied with her treatment or had she tried to abscond. The Supreme Court has held that the operational duty was owed to her even though she was not detained, but the judgment has implications beyond the particular facts of Melanie's case.

1. In relation to the article 2 operational duty the ECtHR has in effect developed rules of tortious responsibility which run alongside and are not at all limited by the domestic common law rules of tort - "in the event of a breach of the operational duty, the range of persons entitled as victims to bring claims against the state, and the nature and scale ofcompensation or just satisfaction which they may receive will depend upon legal principles established by the ECtHR" - per Lord Mance
2. To whom is the duty owed? Where a person is known to be, or ought to be known to be at a real and immediate risk of suicide or at risk of death at the hands of another, a public authority will owe the operational duty to protect them if the authority has assumed responsibility for their welfare and safety, and where the individual is particularly vulnerable and/or the risk is of an exceptional nature rather than one to which the individual might ordinarily be expected to be exposed. However the courts will interpret the duty so as not to impose an impossible or disproportionate burden on the public authority having regard to the operational choices it must make in terms of priorities and resources.
3. The circumstances in which public authorities will be under an operational duty to take steps to protect the life of a person for whom they are responsible are still being tested and are likely, as in this decision, to continue to expand. Lord Dyson observed that "the jurisprudence of the operational duty is young. Its boundaries are still being explored". He considered that the ECtHR had been tending to expand the boundaries of the duty.
4. The domestic courts will not be confined by, but will "take into account" European case law as they are required to by Parliament under the Human Rights Act: "If the domestic court is content to decide a Convention challenge against the public authority and believes such a conclusion to flow naturally from existing Strasbourg case law (albeit that it could be regarded as carrying the case law a step further), then it should take that further step... that is precisely the position in this very case." - per Lord Brown.
5. Previously the Court of Appeal had held that the operational duty arose only in respect of those whom the public authority had detained. Now it is clear that detention is not a necessary condition for the duty to arise. So, the duty might arise in relation to psychiatric patients whether in hospital or in the community. It might arise in relation to vulnerable children and adults in care homes or otherwise under the care of a local authority. In Mitchell v Glasgow CC [2009] AC 874 the House of Lords contemplated, but on the facts rejected, a claim that a local authority owed an operational duty to protect the life of a tenant. In Watts v United Kingdom (2010) EHRR 66 the ECtHR appeared to accept that an operational duty might be owed to an elderly resident compelled to move from her existing care home. Following Rabone, it is possible that such duties might, in exceptional circumstances, be imposed on public authorities in relation to vulnerable tenants and care home residents if they are at a real and immediate risk of death.
6. Such claims for damages under the Human Rights Act may be brought by close relatives of the deceased - they are entitled to do so by reason of being "victims" under the Convention and the Act. They will not necessarily lose their status as victims simply because compensation has been paid to the deceased's estate. They may even remain entitled to bring a claim for damages under the Human Rights Act even after they have been paid damages for their bereavement, if those damages do not afford "sufficient redress".
7. In assessing the level of damages the Courts will be guided by awards given in Strasbourg, such awards for breach of article 2 ranging from EUR 5,000 to EUR 60,000. It will be noted that the upper end of the bracket comfortably exceeds the present level of the bereavement award under the Fatal Accidents Act 1976. Also, as the Rabone case illustrates, the range of persons entitled to claim damages is wider than those who are entitled to bereavement damages under the 1976 Act. Similar claims may be brought for contraventions of other articles of the Convention, including article 3.
8. Enhanced, Middleton-style Inquests, which investigate thoroughly the circumstances of a death, are already required in any case where a public authority might have been in breach of the operational duty under article 2. Following Rabone that group of cases will expand: there will be more so-called "enhanced Article 2 Inquests".

It can be seen that this decision may lead the way for further claims where public authorities have failed to protect the lives of vulnerable individuals for whom they have assumed responsibility. What is, in effect, a new tort has been imposed on public authorities through the mechanism of the Human Rights Act - a development sure to further infuriate the Act's opponents but which will be welcomed by those who have lost loved ones in circumstances which the public authorities could and should have avoided.

Nigel Poole is a Barrister at Kings Chambers, Manchester and Leeds. He acted for Mr and Mrs Rabone in the case, and was instructed by Pannone LLP.