Interrupting my blog-posting hiatus because of a judgment from the UK Supreme Court in the case of Rabone and another v Penine Healthcare NHS Foundation Trust which was published this morning. This case in now on the legal resources page of the blog.
Following on from the case of Savage in 2007 where it was ruled that hospitals’ MH Trusts owed a legal duty of care under Article 2 of the European Convention to detained MHA patients, the Rabone case has now given a similar judgement on voluntary, non-detained MHA patients.
Melanie Rabone was admitted to a mental health hospital as a voluntary patient after a suicide attempt and had been assessed as posing a high risk of suicide whilst suffering a major depressive disorder. It had been written on her case file that the risk of suicide was significant enough to mean that if she should try to leave the hospital, she should be detained for assessment under the Mental Health Act. Notwithstanding this, the hospital granted her two days of home leave against the wishes of her parents and after spending a day with her mother, claimed to be going out to visit a friend and hanged herself.
The hospital admitted they had been negligent and settled a damages claim brought by Melanie’s estate, but denied having breached Article 2 of the European Convention. Her parents continued the case to argue that a breach of Article 2 did occur and that this is a distinct issue from the settlement of a damages claim.
IMPACT OF THE RULING
This is important: this ruling does NOT mean that voluntary patients can never be granted leave or that they can always be stopped from leaving wards by exercising a their own choice. It pertains to cases where there is a real risk of suicide and whether or not someone’s medical condition should prevent them exercising that choice.
Today’s publication of the Supreme Court judgment makes it clear that with regard to patients with mental health problems, there is a difference between voluntary and detained patients. However, the court stated that this difference must not be exaggerated and that the difference between Melanie and “that of a hypothetical detained psychiatric patient would have been one of form not substance.” Her medical notes were inscribed with instructions that should she try to leave the hospital, she should be detained [under nurses’ and / or doctors’ holding powers] for assessment under the Mental Health Act. The Supreme Court stated that this was the necessary approach because of the suicide risk and it endorsed the Court of Appeal ruling reached in the Savage case.
These two cases now being current case-law issued or endorsed by the highest court in the land, it raises the question for me about professionals’ and trusts’ potential liabilities under s127 MHA (willful neglect of a patient). I’m thinking about the required police response to complaints of neglect if it is alleged or shown that steps were not taken to ensure relevant patients were subject to holding powers where they should have been; as well as questions for NHS organisations around corporate manslaughter where policies, staffing, training or procedures, etc., are deemed insufficient to discharge these duties.
IMPACT FOR POLICING
What should happen if frontline cops attend reports from mental health services to AWOL patients where the overall circumstances amount to concerns about leave being granted for patients who didn’t return; or to inaction in failing to prevent someone from leaving? “Err, Sarge! …” Serious stuff.
If you work within the mental health system, it is worthy of consideration that the police service do receive complaints, albeit rarely, from families of alleged neglect by other professionals and these complaints must be investigated as any other criminal complaint. So where do we think s127 MHA comes into either of the granting of s17 MHA leave for detained patients or home leave for voluntary patients; as well as to the prevention / management of AWOL cases?
Could it be ‘wilfully neglectful’ to fail to detain someone who needs detaining or to grant leave to someone who is a high suicide risk, in breach of the principles outlined by this case? Potentially, yes. Could it be ‘wilfully neglectful’ to prevent an AWOL case which was preventable? Again, potentially, yes. As with everything, all cases on their merits.
Worthy of some thought.
Winner of the President’s Medal,
the Royal College of Psychiatrists.
Winner of the Mind Digital Media Award
All opinions expressed are my own – they do not represent the views of any organisation.
(c) Michael Brown, 2014
I try to keep this blog up to date, but inevitably over time, amendments to the law as well as court rulings and other findings from inquests and complaints processes mean it is difficult to ensure all the articles and pages remain current. Please ensure you check all legal issues in particular and take appropriate professional advice where necessary.
Government legislation website – http://www.legislation.gov.uk
Mental Health Cop 
Thank you for this knowledgeable reaction to what is a landmark ruling. Will be sharing this with fellow campaigners Thanks again…Off to elderly care now!
This would extend to suicidal patients entering A&E then walking out un-noticed hours later. I think there is beginning to be a wake up call to people involved in MH work.
My thoughts exactly! Great minds.
Oh wow, that’s a very good point! I remember some time ago I had suicidal ideation and was admitted to the mental health liaison part of A&E. I didn’t want to be admitted to the local MH unit because I was afraid of bumping into people I had previously worked with, the nearest other hospital was ‘fully booked’ and they couldn’t book transport to take me to my local hospital back home in another county (which was about 20 miles away).
So, it was way way past midnight before the doctor told me I would have to wait in reception until “office hours” so that everything could be sorted out (I presume I couldn’t stay within the mental health assessment room because I breached the 4 hour rule or something). So, unaccompanied or supervised while still having some active suicidal thoughts, I waited in the reception area of A&E for about 20 mins before I decided to just walk out. I left at around 4am and eventually got back to my mum’s home at about 8am (having walked 2 hours straight in the dark, walking past wooded areas, a train station, being paranoid that I was being secretly followed by police because of my walkabout and trying not to deliberately walk in front of traffic).
Considering I’d previously attempted suicide and was on antidepressants, the A&E staff didn’t bother contacting my mother until about midday to ask if I was with her and was safe and well.
It is legally ever so slightly different if someone has not yet been admitted to hospital – an A&E waiting area or even a MH related assessment area in A&E wouldn’t be covered by the Rabone judgement. That said, the circumstances you describe would give rise to criticism and potentially to a legal challenge of similar, but not identical grounds, because I know from a similar care in my own area that a coroner slated an A&E department for allowing the same thing to happen. This included them being slated for the delay involved in them reporting the patient missing to the police or contacting next of kin (whose details they did have).
Very Interesting.
As a former partnership Inspector, I kept stating that the NHS trusts including MH establishments being statutory members of the CDRP were subject to the statutory provision of section 17 Crime & Disorder Act 1998. Where a failure occurred they were liable to civil redress. We had two cases revolving around a Sec 17 leave MH patient who randomly attacked 4 members of the public and a seperate incident where an absconding Remand Prisoner placed for assessment committed 17 further burglaries before being recaptured.
There was a look of horror when I stood up at a public meeting (Because the Police dont lie) and told the audience how it was within which were 5 of the victims.
They disbanded the Partnership role after that and nothing changed, except their liability.
I am forever mystified that by picking up a phone and dialling teh Police A&E and MH units believe they have abdicated their responsibility.
This is a really interesting subject. I can’t help but wonder that when it was written in the notes ‘ if attempts to leave to consider 5(4). Yet this would be hinting to a nurse to use it, when it should be their own judgement and call. Surely who ever wrote the note to possible 5(4) the person should have done it themselves or put a recommendation in for a section 2. You hear of it all the time in MH ‘ he/she is escalating and if you need to 5(4) them. Its wrong, you should make the impartial view yourself making the 5(4) and not be subject to even a hint of a possibility of it from someone else. Its almost preempting what will happen without taking a full responsibility of risk.