Tuesday, 12 June 2012

Rabone - Claiming Damages under the Human Rights Act

This is my first post on this blog so no apologies for writing about my own case: Rabone-v-Pennine Care NHS Trust [2012] UKSC 2, [2012] Med LR 212.

The judgement paves the way for certain bereaved claimants to make claims for damages under the Human Rights Act when previously they had no remedy. In his commentary on the case in the Medical Law Reports, James Watson Q.C. wrote:

"The outcome of this case was, in the eyes of many, one small step for human rights and one giant leap for the humanity of our compensatory system."

Mr and Mrs Rabone's daughter, Melanie, committed suicide having been wrongly allowed home leave from the defendant's psychiatric unit where she had been receiving care for severe depression. Melanie was over 18 and her parents had no entitlement to damages under the Fatal Accidents Act. A claim was brought and settled on behalf of her estate for her pre-death pain and suffering and for funeral expenses. The Supreme Court held that Melanie's parents were entitled to compensation in their own right under the HRA: the "operational obligation" under Article 2 of the Convention may be contravened by a public authority even though the deceased had not been detained and payment of compensation to the estate did not by itself deprive the parents of a remedy under the HRA.

Where a person has died as a result of a contravention by a public authority of article 2 of the European Convention on Human Rights, then their close relatives may be entitled to damages under the HRA. The following will have to be established for the claim to succeed:

  1. The public authority had assumed responsibility for the individual ("the deceased"), and/or the deceased was particularly vulnerable and/or the public authority had created or permitted an exceptional danger.
  2. The public authority (and those acting on its behalf) knew or ought to have known of a real and immediate risk of the deceased dying.
  3. The public authority failed to take steps which, judged reasonably, might have been expected to have protected the deceased's life.
  4. The claimants have not otherwise received effective redress and/or the public authority has not otherwise acknowledged, expressly or in substance, the contravention.

The Courts will interpret the scope of the operational obligation so as not to impose an impossible or disproportionate burden on the public authorities.The death of a patient from a physical condition after negligent treatment will not, without more, trigger article 2 (Powell-v-UK).

The Court of Appeal's assessment of damages of £5,000 for each parent was not appealled. Lord Dyson in the SC indicated that if it had been then a higher award would have been made. Lawtel has already reported one settlement where Rabone was relied upon to recover compensation where there would have been no entitlement to recovery under the FAA.

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