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‘Rabone’ and four unresolved problems in mental health law

  • George Szmukler (a1), Genevra Richardson (a2) and Gareth Owen (a1) (a3)
Summary

In a landmark decision, the Supreme Court of the UK ruled that the state has a special operational duty to protect the right to life in informal psychiatric in-patients (‘Rabone case'), in sharp distinction to general medical or surgical patients. We will argue that the significance of this case is general, not just local, and that it exposes four important unresolved problems in mental health law: the place of decision-making capacity; the meaning of ‘informal’ admission; parity between mental and physical health; and the accuracy of risk assessment.

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Copyright
This is an Open Access article, distributed under the terms of the Creative Commons Attribution (CC-BY) license (http://creativecommons.org/licenses/by/4.0/), which permits unrestricted re-use, distribution, and reproduction in any medium, provided the original work is properly cited.
Corresponding author
George Szmukler (george.szmukler@kcl.ac.uk)
Footnotes
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Declaration of interest

None.

Footnotes
References
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1 Osman v United Kingdom (2000) 29 EHRR 245.
2 Keenan v UK (2001) 33 EHRR 38.
3 Edwards v United Kingdom (2002) 36 EHRR 487.
4 Savage v South Essex Partnership NHS Foundation Trust [2008] UKHL 74; [2009] 1 AC 681.
5 Rabone and another v Pennine Care NHS Foundation Trust [2012] UKSC 2.
6 Rabone and Pennine Care NHS Trust [2009] EWHC 1827 (QB).
7 Rabone and Pennine Care NHS Trust [2010] EWCA Civ 698.
8 Raymont, V, Bingley, W, Buchanan, A, David, AS, Hayward, P, Wessely, S, et al. Prevalence of mental incapacity in medical inpatients and associated risk factors: cross-sectional study. Lancet 2004; 364: 1421–7.
9 Owen, GS, Szmukler, S, Richardson, G, David, AS, Hayward, P, Rucker, J, et al. Mental capacity and psychiatric in-patients: implications for the new mental health law in England and Wales. Br J Psychiatry 2009; 195: 257–63.
10 Dawson, J, Szmukler, G. Fusion of mental health and incapacity legislation. Br J Psychiatry 2006; 188: 504–9.
11 Appleby, L, Kapur, N, Shaw, J, Hunt, IM, Flynn, S, While, D, et al. National Confidential Inquiry into Suicide and Homicide by People with Mental Illness Annual Report: England, Wales, Scotland, and Northern Ireland. University of Manchester, 2012.
12 Flannigan, CB, Glover, GR, Wing, JK, Lewis, SW, Bebbington, PE, Feeney, ST. Inner London collaborative audit of admission in two health districts. III: Reasons for acute admission to psychiatric wards. Br J Psychiatry 1994; 165: 750–9.
13 Large, M, Sharma, S, Cannon, E, Ryan, C, Nielssen, O. Risk factors for suicide within a year of discharge from psychiatric hospital: a systematic meta-analysis. Aust N Z J Psychiatry 2011; 45: 619–28.
14 South London and Maudsley NHS foundation Trust. Annual Report and Summary Accounts 2009/2010. SLAM, 2010.
15 Guilbault, RL, Bryant, FB, Howard Brockway, J, Posavac, EJ. A meta-analysis of research on hindsight bias. Basic Applied Soc Psychol 2004; 26: 103–17.
16 HM Government. Report of the Royal Commission on the Law Relating to Mental Illness and Mental Deficiency 1954–1957 (Cmnd 169). HMSO, 1957.
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BJPsych Bulletin
  • ISSN: 1758-3209
  • EISSN: 1758-3217
  • URL: /core/journals/bjpsych-bulletin
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‘Rabone’ and four unresolved problems in mental health law

  • George Szmukler (a1), Genevra Richardson (a2) and Gareth Owen (a1) (a3)
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eLetters

The risk in risk assessment

Keith E Dudleston, Retired Consultant Psychiatrist
17 September 2013

Szmukler et al (1) should be warmly congratulated on their clear, authoritative critique of the recent developments in the law of England and Wales concerning mental health. Their analysis of the assessment of risk is particularly telling:

"Rare events are virtually impossible to predict with any degree of accuracy. 'False positives' will overwhelm the number of 'true positives'.......If the rate of suicide in the year post discharge were, say, 1 in 250, only 1 in 100 of patients judged to be at 'high risk' (using a risk assessment instrument) would complete suicide."

These number based risk assessment instruments lack the necessary sensitivity and specificity to be useful, and can be harmful in the ways described in this article. Our judiciary, policy makers, coroners and others conducting inquiries, or giving expert evidence, should all take note.References:

1. Szmukler G, Richardson G, and Owen G. ‘Rabone’ and four unresolved problems in mental health law. The Psychiatrist 2013; 37: 297-301

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Conflict of interest: None declared

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