To what extent does the UK's healthcare system preserve the right to life of vulnerable patients?
Posted on 23 Dec 2021 by Avyanka Balaji
Disclaimer: The views expressed below are that of the individual author.
Trigger Warning: Self-Harm
Setting the context
The historical trend of suicide rates from 2008 to 2018 across the UK highlights that over 36,000 patients died as a result of suicide. In 2018 alone, there were over 1,306 suicides in England, 222 in Scotland and 73 in Wales; all of which were committed by mental health in-patients who were admitted to healthcare service.[1]Various factors contribute to vulnerable patients feeling more inclined to self-harm, ranging from socioeconomic concerns such as financial constraints (unemployment, loss of home), to psychological factors such as:
o Abuse (physical, sexual etc)
o Feelings of sorrow or grief due to the loss of someone
o Relationship instability and lack of social support
o Substance abuse
o Identity crisis (like insecurity because of one’s sexuality or coming from an ethnic minority)
o Exposure to suicidal behaviours of others
o Clinically diagnosed psychiatric illnesses especially relapsing as a result of being Discharged from healthcare
o Psychotic illnesses (like delusions or hallucinations)[2]
The Legal Framework
The _Mental Health Act (1983)_and _Mental Capacity Act (2005)_provide statutory safeguards regarding the protection of the life of vulnerable patients. They were established to prevent the aforementioned concerns. The _Mental Health Act (1983)_is the fundamental legislation that constitutes the assessment, necessary treatment, and preservation of the rights of people with a mental health disorder. During emergencies whereby one is at serious risk of harming themselves, approved medical health professionals such as doctors and nurses can assess and decide whether to detain patients for treatment purposes. In most non-emergency cases, family members or professionals (like general practitioners, carers etc) may voice concerns about one’s mental health and collectively decide on the possibility of assessments and seeking treatments in the future.[3]Whereas, the _Mental Capacity Act (2005)_was constructed to empower those who may lack the mental capacity to make decisions autonomously—for example, dementia or brain-injured patients. The _Mental Capacity Act_lays out that a person has capacity unless proven otherwise and approved authorities must not treat someone as lacking capacity if they make an unwise decision, but rather assess in their best interest. The test to assess the capacity of an individual is inquiring; firstly, whether the person has an impairment of their mind, because of illness or external factors like drug usage, and secondly, whether the impairment results in the person being incapable of making requisite autonomous decisions.[4]
The public authorities that are approved within both pieces of legislation include: social services, private care homes of local authority and organisations of NHS, NHS health services and its other subordinate bodies, private healthcare organisations of NHS, and Care Quality Commission in England, Care and Social Services Inspectorate in Wales and the Care Inspectorate in Scotland.[5]
Case study: Exploring Common Law Precedents
Despite the enactment of both pieces of legislation, the figures from National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH) emphasise that there is a staggering increase in suicide rates of mental health in-patients in the UK, and a primary reason could be the concerns of human rights and dignity, which will be explored by the following cases.
Rabone v Pennine Care NHS Trust concerned Ms Rabone, a patient suffering from a history of depression, who was admitted to the Stepping Hill Hospital and diagnosed by a consultant psychiatrist Dr Meagher, upon attempting to commit suicide on March 4th2005. By 18thMarch, she was discharged on the basis that she made sufficient recovery but on the 31stMarch she attempted to commit suicide again. She was readmitted to the hospital, on the advice of Dr Meagher, but there were limited resources available. After that, she was seen as an outpatient by Dr Cook, a senior house officer and upon attempting to commit suicide for the third time, Dr Cook authorised her to be detained in order to assess her mental state and prescribe medicine under Mental Health Act (1983). The ward nurse who conducted the full examination found Ms Rabone to be a moderate to high suicide risk patient requiring immediate admission. On April 19thMs Rabone was requesting home leave, but Ms Rabone’s parents expressed their concern that she was not improving and felt the need to detain her for longer. However, Dr Meagher despite the parents’ views agreed to allow Ms Rabone to have home leave for two days and nights since she was very keen to do so. Unfortunately, on 20thApril, Ms Rabone committed suicide. Ms Rabone’s parents proceeded to file legal charges in a claim for damages against the hospital for clinical negligence on the basis that Ms Rabone’s right to lifeunderArticle 2 of the European Convention on Human Rights (ECHR) had been breached.
The issue was to determine whether an operational duty of the hospital existed under Article 2 to the patient who was mentally ill, and whether this right had been breached because the patient was not detained appropriately. Arguably, the determination that Ms Rabone was a moderate to high-risk suicide patient shows her mental state to be sufficiently vulnerable. To establish an operational duty is to find a real and immediate threat to one’s life from which they should be protected according to Osman v United Kingdom (2000). However, the threshold to establish the existence of this duty of care is high as illustrated in Savage v South Essex Partnership NHS Foundation Trust[2009], because lowered thresholds would result in extreme pressure and complexities for existing mental health services. In this case, the risk to Ms Rabone was present when she left the hospital during the two-day period of home leave, leading to her eventual death. The risk was real enough because a responsible competent psychiatrist would have regarded Ms Rabone as requiring protection against the risk of suicide and would not have permitted Ms Rabone to leave. As Lord Dyson says, “there was a substantial or significant risk and not a remote or fanciful one…the standard/test demanding for the performance of the operational duty is one of reasonableness.” In terms of immediate risk, Lord Dyson sought Lord Carswell’s view in Re Officer L_to suggest that an immediate risk is one that is “present and continuing.” Hence it could be concluded that concerning Ms Rabone there was a real and immediate risk, and the Trust owed an operational duty of care to take reasonable measures in preventing that risk, thereby protecting her right to life under _Article 2. But the Trust, upon assuming responsibility for her and misjudging that she was under control, failed to take reasonable steps to prevent the real and immediate risk of suicide and thus breached its operational duty. Therefore, the Supreme Court held unanimously that an operational obligation did_exist and _was_breached. Ms Rabone’s parents were victims as per _Article 34 of the Convention, and consequently awarded damages of £5,000 each. The Trust attempted to challenge the amount but failed due to its clear breach of _Article 2_requiring the award for damages to be much higher in amount.[6]
On the contrary, in a more recent case, Fernandes de Olivera v Portugal[7], AJ who suffered from several mental illnesses and substance abuse was hospitalised in the HSC on a voluntary basis. On the morning of the 27thof April 2000, the nurse noticed that AJ was calm and had eaten, but in the evening when AJ’s mother called the hospital she was told to call back later as her son was not inside the building at that time. AJ’s mother was assured that some minutes earlier he had been standing at the door and he looked fine, however later during the night, a nurse noticed his absence at dinner. The nurse informed the doctor on call that night of AJ’s disappearance, but it was found that AJ had already committed suicide and no one had noticed him exiting the ward. AJ’s mother filed for proceedings on behalf of her son’s right to life under Article 2 of the ECHR against the psychiatric hospitalon the basis of negligence.
Although it is uncontested that AJ was in a vulnerable position even if he was to be treated on a voluntary basis and an operational duty existed, unlike Rabone, according to experts, the prevention of suicide of AJ was impossible as it was not foreseeable. It was not known or ought to have been known by authorities that any real immediate risk of AJ’s life existed in the days prior to his death and therefore the Grand Chamber decided that the operational duty was not breached.[8]
Nevertheless, both Rabone_and _Fernandes_open doors for legal reforms of the legislations concerning mental capacity and mental health, whereby the UK public authorities must not only incorporate steps to protect the _right to life (Article 2), but also—the right to liberty (Article 5), the right to respect for private and family life (Article 8), and the right not to be discriminated against (Article 14) as per the ECHR. There needs to be a balance between the protection of rights in one’s best interest and autonomy.
Moving Forward: regulating the safety of patients in mental healthcare services
- Safer Wards: There should be more measures taken to monitor wards and observe patients by experienced professionals upon admission. This should include preventing patients to leave unless permitted to do so. There also needs to be an improvement in patients’ treatment experience by elevating their care and comfort. Interactive activities could be beneficial for improving the support system available to patients.
- Maintaining contact upon discharge: psychiatric patients discharged from the respective authority must be followed up within 72 hours and an organised care plan must be put in place and elaborated clearly and comprehensively to legal guardians upon discharge.
- 24-hour crisis resolution/home treatment team (CRHT): There must also be support provided within communities to patients experiencing a crisis. The CHRT teams should be monitored to ensure safety.
- Family involvement: Reaching out to families throughout the mental health assessment and treatment process as a means of support to prevent feelings of isolation and potentially minimise risks of suicide. There must be a simple procedure set for discharge and implementation of care plan post-discharge, especially in times of crisis. Similarly, mental health services must make it easier for families to contact about concerns of suicide risks of any member and gain insight into the patient’s history. This would enable authorities to tailor their treatment to the needs of the patients to encourage smooth recoveries. In addition, there could be multi-disciplinary review following suicide cases engaging families to share their stories whilst also raising awareness regarding potential risks to them.
- Guidance: Public authorities especially the NHS and its affiliated bodies must provide clear and coherent guidelines to tackle self-harm risks.
- Suicide risk management resources: Most risk assessment tools misperceive signs of suicidal behaviour, especially neglecting signs of suicide contemplation with lower risk groups. Henceforth, patients must be given an opportunity to assess mental health risks with both their family members and the mental health services. This is to strengthen the duty of care and supervision for everyone’s safety whether they are voluntary or emergency (involuntary) patients.
- Outreach teams:Mental Health services must provide an additional outreach team that functions to provide intensive care for those who are disengaged with services or lost contact with traditional services, in order to prevent patients from not attending appointments, and ensure they take their prescribed medications.
- Reducing substance abuse and alcohol misuse: Reformed rehabilitation services with specialised substance misuse clinicians must be provided in alliance with mental healthcare systems for patients with illnesses related to drug and alcohol consumption. Frontline staff must be well trained and equipped to examine patients who suffer from addiction so that they can mitigate against suicide attempts by actively engaging with patients.[9]
[1]University of Manchester, “National Confidential Inquiry into Suicide and Safety in Mental Health (NCISH)” (2021) p.4-5 <https://documents.manchester.ac.uk/display.aspx?DocID=55335> accessed 26thNovember 2021
[2]Royal College of Psychiatrists, “Self-harm and suicide in adults” (2020) p.37 <
https://www.rcpsych.ac.uk/docs/default-source/improving-care/better-mh-policy/college-reports/college-report-cr229-self-harm-and-suicide.pdf?sfvrsn=b6fdf395_10> accessed 26thNovember 2021
[3]NHS, “Mental Health Act” (last reviewed: 2019) <https://www.nhs.uk/mental-health/social-care-and-your-rights/mental-health-and-the-law/mental-health-act/> accessed 3rdDecember 2021
[4]NHS, “Mental Capacity Act” (last reviewed: 2021) <https://www.nhs.uk/conditions/social-care-and-support-guide/making-decisions-for-someone-else/mental-capacity-act/> accessed 3rdDecember 2021
[5]Citizens Advice, “Protecting your human rights when using health and care services” < https://www.citizensadvice.org.uk/health/discrimination-in-health-and-care-services/taking-action-about-discrimination-in-health-and-care-services/protecting-your-human-rights-when-using-health-and-care-services/> accessed 3rdDecember 2021
[6]Rabone v Pennine Care NHS Trust [2012] UKSC 2
< https://www.supremecourt.uk/cases/docs/uksc-2010-0140-judgment.pdf> accessed 3rdDecember 2021
[7]Fernandes de Olivera v Portugal [2019] ECHR 106 < https://www.bailii.org/eu/cases/ECHR/2019/106.html#_ftn90> accessed 3rdDecember 2021
[8]Alex RK, “Voluntary psychiatric patients, suicide and the duty to protect – Strasbourg pronounces” (2019) < https://www.mentalcapacitylawandpolicy.org.uk/voluntary-psychiatric-patients-suicide-and-the-duty-to-protect-strasbourg-pronounces/> accessed 3rdDecember 2021
[9]University of Manchester, “Safer services: A toolkit for specialist mental health services and primary care” (2021) <
https://documents.manchester.ac.uk/display.aspx?DocID=40697> accessed 3rdDecember 2021
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