Interrupting my blog-posting hiatus because of a judgement 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.
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 judgement 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.
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 thought.
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