This article originally appeared in Issue 5 (May 2020).
It is now eight years since the Supreme Court found that the death of a voluntary mental health patient whilst on leave could engage the state’s Article 2 investigative duty. Rabone v Pennine Care NHS Trust  UKSC 2 opened up the prospect of Middleton inquests being held in connection with an expanded variety of mental health cases.
Identifying the reach of Rabone has been a regular focus of inquests ever since, as has seeking to delineate the scope of the State’s ‘systemic’ duty to protect life.
In R (Lee) v HM Assistant Coroner for the City of Sunderland  EWHC 3227 (Admin) the High Court considered the case of a young patient living in the community, and a coroner’s refusal to accept that Article 2 was engaged on either the operational or systemic basis. Deciphering the outcome is no easy task given the astonishing number of errors in the transcript of this ex tempore judgment. But the case is a further demonstration of the challenges involved in seeking to extend the scope of Rabone into the community mental health context.
Melissa Lee had suffered from mental health problems since her teenage years. She had been under a community care regime since December 2012 and was subject to a series of care plans. Melissa had overdosed on a number of occasions and had been admitted in the past, both voluntarily and under section.
In February 2016, Melissa’s psychiatrist diagnosed her with an emotionally unstable personality disorder and arranged medication. On 8 March 2016, Melissa contacted her care worker and the crisis service carried out an assessment at her home the following day.
On 13 March, Melissa attended Accident and Emergency as a result of an overdose, but self-discharged.
The following day, the crisis team carried out a further assessment and considered Melissa to have a moderate risk of self-harm which did not justify re-admission to hospital, which was what she had wanted. The team’s decision was affirmed by a consultant psychiatrist.
On 17 March 2016 Melissa was again treated at A&E having suffered a further overdose. She was allowed to self-discharge that evening. Her father visited her in the early hours of 18 March but left having felt reassured that Melissa was safe. She was found dead later that morning.
At a pre-inquest review, Melissa’s family argued that Article 2 was engaged on both the operational and systemic bases. They contended that an arguable breach of the ‘Osman’ operational duty had taken place, based on an analysis of the factors identified in respect of non-detained mental health patients by Lord Dyson in Rabone: extreme vulnerability, a real and immediate risk to the individual, and the degree of responsibility and control exercised by the State.
The family also cited an arguable breach of the systemic duty, referring to alleged failures or inadequacies in care planning and discharge planning.
The coroner decided that Article 2 was not engaged on either ground. On the operational duty, she said:
“I believe I am being urged to extend Rabone v Pennine Care NHS Trust to mental health patients in the community; I do not find that the operational duty arises in those circumstances; the Trust has not assumed control or responsibility in that regard of the word, and therefore there can be no breach.”
On the systemic duty, she concluded that there had been no evidence before her to suggest that adequate provision had not been made for securing high professional standards among health professionals and the protection of the lives of patients. She reminded herself – in line with Powell v United Kingdom (2000) 30 EHRR CD 362 – that mere errors of judgment by/negligent cooperation between health professionals were not sufficient to amount to an Article 2 violation.
The High Court’s judgment
HHJ Raeside QC remitted the operational duty question for the Coroner to reconsider on the facts, having found that she had not taken into account anything other than the degree of control exercised in Melissa’s case; she had failed to deal with the extent to which Melissa had been vulnerable, or the question of exceptional risk.
On the other hand, there was no basis on which it could be argued that there had been a systemic breach. Indeed, when the family had been asked to identify arguable evidence as to a failure of the system itself, none was provided, and it was agreed that “there was no such information”.
Consequently, the judge did not have to address the significant hurdles now facing any systemic breach argument in a medical negligence context. In R (Parkinson) v HM Senior Coroner for Kent  EWHC 1501, Lord Justice Singh noted the importance of Lopes de Sousa Fernandes v Portugal (app. no. 56080/13). In Lopes the Grand Chamber of the European Court of Human Rights emphasised that, in the context of alleged medical negligence, a State’s substantive positive obligations “are limited to a duty to regulate, that is to say, a duty to put in place an effective regulatory framework compelling hospitals, whether private or public, to adopt appropriate measures for the protection of patient’s lives.” There were two exceptional circumstances, described at  and  of Lopes. The first:
“concerns a specific situation where an individual’s life is knowingly put in danger by denial of access to life-saving emergency treatment… It does not extend to circumstances where a patient is considered to have received deficient, incorrect or delayed treatment.”
“arises where a systemic or structural dysfunction in hospital services results in a patient being deprived of access to life-saving emergency treatment and the authorities knew about or ought to have known about that risk and failed to undertake the necessary measures to prevent that risk from materialising, thus putting the patients’ lives, including the life of the particular patient concerned, in danger…”.
Clearly, no court was likely to be satisfied that deficiencies in individual care or discharge plans amounted to such exceptional circumstances.
On the remitted question relating to the operational duty, the coroner has since decided afresh that Article 2 does not apply. She determined that Melissa’s case did not involve an assumption of the level of responsibility found in Article 2 cases. There was no close supervision or control, or responsibility for overseeing Melissa’s daily life. The state did not create any danger for her.
On vulnerability, Melissa “did not demonstrate the kind of helpless or acute vulnerability which Lord Dyson instances at para. 23 of the Rabone case (there, a child known to be at risk of abuse).” Her risk was a long-term and chronic one.
In any event, the coroner found that there was no apparent basis for saying that admission (compulsory or otherwise) had been a required reasonable step at any stage.
The High Court’s decision to remit that factual determination to the coroner means that arguments as to whether Article 2 applies in specific mental health inquests are likely to rage on.