Friday, 13 May 2016

The Judicial Power Project - A Problematic Case

A case in which I was heavily involved, Rabone v Pennine [2012] UKSC 2 has appeared in a list of 50 "problematic" cases produced by the Judicial Power Project. It happens also to be No 17 in the list of 50 human rights cases that transformed Britain published by Rights Info. Of course it might be transformative and problematic but I would like to address a couple of issues that underlie its inclusion in the JPP list.

The Supreme Court

The list is designed to illustrate the perceived problem of judicial overreach. It is said of Rabone that

"The claimant’s daughter committed suicide whilst on home leave from hospital where she stayed as a voluntary patient. The Supreme Court found that the Trust had failed in its duty to protect life under Art 2 in allowing home leave where there was a real and immediate risk of suicide. In this way the Court went beyond Strasbourg jurisprudence and invoked Art 2 to create liability for failure to prevent suicide. The decision has been roundly criticized in medical journals and risks further juridifying health services."

Creating Liability for Suicide

In fact there were two claimants, Melanie Rabone's parents. The Trust admitted that the decision to allow Melanie home had been negligent. It was foreseeable that the negligent decision could result in her injury or death. The Supreme Court did not "create liability for failure to prevent suicide". That liability already existed. It existed in common law, after all the Trust had admitted liability at common law. It existed already for detained mental health patients (case of Savage) and for prisoners.

The problem for Mr and Mrs Rabone was that the common law did not recognise their position as parents of an adult child. The Human Rights Act was invoked to give such recognition and to do so in the case of the death of a voluntary psychiatric patient.

Duty to Detain

The extract above also refers to the judgment being criticised in medical journals. That is fair comment: there were two or three articles and letters from psychiatrists. In "Hindsight Bias and the Overestimation of Suicide Risk in Expert Testimony" by Large et al criticism was made not of the judgment but of the expert evidence, including that relied upon by the Trust as to the extent of the risk of suicide. Surprisingly the authors used evidence of the risk of in-patient suicide to question the assessment of risk on allowing Melanie home. The relevant risk was not that which she had been at as an in-patient on 15 minute observations, but that on her being out of hospital with no plan in place to monitor or protect her safety. Nor was she an "average" she was a particular patient. The authors clearly did not have access, as did the expert psychiatrists in the case, to all the evidence. In any event the test the Supreme Court applied was whether there was a "real" and "immediate" risk, not whether it was over a certain percentage. The whole piece was misguided.

A subsequent paper, "From Rabone to Reality" by Salter begins, "Large et al draw valuable attention to the flawed information on which the Supreme Court based its decision". So, the new accepted wisdom was that the information was flawed. The author went on to misunderstand the judgment when he wrote, "The present judgment will, in all likelihood, lead to an increase in the detention of individuals with depression against their wishes". In fact there had been a clear finding that Melanie would have complied with any decision that she should remain an in-patient. There was not finding that she ought to have been detained against her wishes. So far as I am aware this prediction has not proved to be correct in any event. I am unaware of any evidence that there has been increased use of detention since Rabone, a decision made over 4 years ago.

The author also referred to the "unfortunate doctor" who let Melanie go home, forgetting that his own employer had accepted that no reasonable psychiatrist would have made that decision and that its consequences were fatal. The author may not have read the original trial judgment.


And so these ill-informed comments become part of an established narrative that leads to the judgment being regarded as a problematic example of judicial interference.  What's more in Reynolds v UK the ECtHR supported the decision of the Supreme Court in Rabone. Hence, even if Rabone had never happened, the Human Rights law would have been changed following Reynolds.

I think I know what "juridifying" means, but I don't believe that Rabone lead to juridification of the healthcare sphere. It has, fair to say, encouraged more scrutiny of suicides by psychiatric patients in Coroners' Inquests. Quite right - the only witness the Trust put before the Coroner in Melanie's Inquest was the negligent psychiatrist. Mr and Mrs Rabone were not represented and the Inquest was over in no time. The judgment has afforded redress to bereaved relatives who were not previously recognised as deserving a remedy at common law. There is no evidence I have seen that it has had negative effects in terms of overuse of detention.

Problematic? I don't believe so.

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