This is a short blog post with a link to a paper I have written on this subject.
I acted as Counsel for Mr and Mrs Rabone throughout their case, instructed by Pannone LLP and led by Robert Francis QC and, in the Supreme Court, by Jenni Richards QC, before I took silk in March 2012.
There have been widely differing reactions to the judgment of the Supreme Court. In Clinical Risk, Bertie Leigh, Senior Partner of Hempsons, the firm which represented the Trust, writing in a personal capacity described the case as vitally important but the decision as profoundly wrong. Meanwhile, in his commentary the Medical Law Reports, James Watson QC said of the decision that it was "one small step for human rights and one giant leap for the humanity of our compensatory system."
Psychiatrists writing to Psychiatry have questioned the expert evidence in the case. It should be noted that it was the Defendant's expert who advised that the risk of Melanie Rabone committing suicide during her period of home leave ranged from 5% to 20%. The Claimant's expert would not use percentages in his written evidence, but was pushed in court to give a percentage figure. His was higher than 20% and the Judge preferred the evidence of the Defendant's expert on that issue. Whatever the general risks of the population of psychiatric patients with depression, the experts have to look at the particular risks of the particular individual and ask whether the risk of suicide was real and immediate and whether that was or ought to have been known to the authorities.
One other note: no judge who heard this case found that the breach of article 2 comprised a failure to detain Melanie under the Mental Health Act 1983. Indeed it was no part of the Claimant's case that she ought to have been detained. The trial judge found that if she had been refused home leave she would have been compliant and therefore would not have required detention. The Claimant's psychiatric expert considered that allowing limited home leave with conditions attached would have been reasonable and would have been adequate protection against suicide. This case was not about detaining patients (pace Mr Leigh).
Here is the paper which can also be found on my chambers website.