Human rights and the obligation to prevent suicide
LEGAL OPINION:ON APRIL 20TH, 2005, a 24-year-old woman took her own life in Lyme Park, Cheshire, England. The woman was an “informal” inpatient in a psychiatric hospital at the time (ie not detained under mental health legislation). She was on two days’ home leave from the hospital when she ended her life. Her death, like all suicides, was a profound human tragedy. There are always alternatives to suicide.
In the legal action that followed, the relevant NHS trust settled a negligence claim with the bereaved family. Negligence was not the only matter at issue, however, as it was also alleged that the NHS trust had failed to meet its obligation to protect this woman’s right to life under the European Convention on Human Rights.
Article 2 of the convention, to which both Britain and Ireland are signatory, states that “everyone’s right to life shall be protected by law”. In Britain, section 6 of the Human Rights Act 1998 makes it “unlawful for a public authority to act in a way which is incompatible with a convention right”.
There is a similar provision in Ireland where section 3 of the European Convention on Human Rights Act 2003 states: “Subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions.”
In the Rabone case, the British Supreme Court had regard for an earlier case in which an individual detained in a psychiatric hospital died by suicide after absconding. In the Savage case, the courts found that the relevant NHS trust had an obligation, under the convention, to reasonably protect psychiatric patients from taking their own lives and concluded that the trust had failed to meet this obligation.
In February 2012, the British Supreme Court reached a similar conclusion in the Rabone case, even though the patient was not detained under mental health legislation at the time of her death.
The court noted that the woman had been originally admitted owing to suicidal risk and found that the trust, in granting her request for home leave, had “failed to do all that could reasonably have been expected to prevent the real and immediate risk of [her] suicide”.
The court concluded that the trust had breached its obligation to protect the patient’s “right to life” under the convention and awarded further compensation to the family.
Given that both Ireland and Britain are signatory to the European Convention on Human Rights and national law in both jurisdictions requires public bodies to act in accordance with convention rights, does this British judgment hold lessons for Irish mental health services?
Clearly, there is now a strong “positive obligation” on public bodies, including public mental health services, to act in accordance with convention rights. But what does this “positive obligation” mean in practice? Predicting suicidal behaviour is, at best, extremely difficult.
In reaching judgment in the Rabone case, the British Supreme Court relied on the concept of “operational duty”, based on another case. The Osman case concerned the alleged failure of British police to protect the Osman family, who had been subjected to threats from a third party, resulting in the murder of Mr Osman and the wounding of his son. In that case, the court stated that in “well- defined circumstances”, the state had a positive obligation to take “preventative operational measures” to protect an individual whose life was at risk from criminal acts.
How extensive is this obligation? In the Osman judgment, the court clarified that this must be interpreted “in a way which does not impose an impossible or disproportionate burden on the authorities”.
Notwithstanding this caveat, the Rabone case suggests that this positive obligation to protect convention rights is both substantial in magnitude and immediately relevant to mental health services, at least in England.
Given Ireland’s similar (although not identical) legal provisions, it is likely that this obligation will be interpreted as being similar in nature and magnitude here.