Reynolds v United Kingdom  ECHR 437 (13 March 2012)
This decision of the European Court of Human Rights considered the availability of compensation for loss of life.
The application was brought under Article 34 of the European Convention of Human Rights by the mother of a person who died while at a mental health facility.
The Applicant applied for damages in relation to the death of her son and argued that she did not have any civil proceedings available to her under domestic law for this action.
The Applicant's son (Mr Reynolds) committed suicide whilst in the custody of mental health workers at a mental health facility.
Mr Reynolds was diagnosed with schizophrenia and was being treated by health workers at a Council run mental health facility in the United Kingdom. He had notified his care worker and the Applicant that he was hearing voices ordering him to kill himself. Steps were taken to have him hospitalised, however no beds were available so he was taken to an Intensive Support Moving on Scheme Unit (the ISMOS Unit). This is staffed by social workers experienced in the care of mental health patients and is an alternative to in-patient care. He was considered a voluntary patient.
On admittance Mr Reynolds was assessed to be a low suicide risk. He was admitted into the ISMOS Unit near the staff room. That evening he appeared withdrawn and was wandering outside the facility until returned by staff. At 10pm there was a change in shifts for the staff and new staff were briefed. Mr Reynolds was due to have his next medication at 10.45pm. At 10.30pm he broke a window in his room and fell from the 6th floor to his death.
There was an internal investigation into the incident and an inquest into Mr Reynold's death.
The Applicant issued an action for damages under section 7 of the Human Rights Act 1998 (UK) against the trust operating the ISMOS Unit and the Council. She argued that they had failed to adequately discharge their duties to Mr Reynolds in breach of Articles 2 (right to life), 3 (prohibition of torture and ill-treatment) and 8 (right to respect for private and family life) of the European Convention of Human Rights. The claim was brought on the basis that they had failed to ensure Mr Reynolds' appropriate placement, failed to ensure the ISMOS Unit was safe and failed to adequately assess the suicide risk or admit Mr Reynolds for in-patient care.
The Applicant’s claim was struck out in the UK courts on the basis that there were no reasonable grounds for bringing the claim. The Applicant subsequently complained to the European Court, claiming that under Articles 12 and 13 of the Convention, domestic law must provide a mechanism for establishing any liability and providing compensation.
The European Court found that, under UK law as it existed at the time, the Applicant did not have a civil action in negligence and had no prospect of obtaining adequate compensation for the non-pecuniary damage she suffered as a result of the death of her son. The Court concluded that there had been a violation of Article 13 of the Convention in conjunction with Article 2 of the Convention.
The European Court then considered Article 41 of the Convention which states that, if the Court finds that there has been a violation of the Convention and the internal law of the party allows partial reparation to be made, the ECHR shall afford just satisfaction to the affected party.
The European Court ordered damages to the Applicant in the sum of €7,000 plus tax and €8,000 in legal costs, plus tax.
Relevance to the Victorian Charter
This case has some relevance to the Victorian Charter of Human Rights and Responsibilities Act in that the Charter contains a protection on the right to life, prohibition from torture and right to the protection of privacy and family life. However, this case primarily focuses on Article 13 of the Convention, which provides a right to an effective remedy. There is no such provision contained within the Charter and in addition section 39(3) of the Charter provides that no damages are payable as a result of a breach.
Further, a party in Victoria does not have the right to bring an action solely based on a breach of the Charter. An action can only be brought for a breach of the Charter if there was a right to bring that action arising otherwise at law.
The decision is available online at: http://www.bailii.org/eu/cases/ECHR/2012/437.html
Amanda Lister is a lawyer with Maddocks.