Human rights and mental health
The Human Rights Act (1998)
Human rights are the basic rights and freedoms that belong to everyone. They cannot be taken away - although some can sometimes be restricted for a legitimate rationale.
Human rights are legally enforceable by the UK under the Human Rights Act (HRA) 1998 which incorporates into domestic law the rights enshrined in the European Convention on Human Rights (ECHR).1 It means all public authorities are legally obliged to respect your rights, and do whatever is in their power to protect your rights then they are at a known risk.
How does the Human Rights Act protect the rights of people living with mental health problems, learning disabilities and dementia?
The rights safeguarded by the European Convention on Human Rights, and which have been domesticated by the Human Rights Act, have had an immense impact in the way people with mental health problems, learning disabilities and dementia are treated. Both, the European Convention and the Human Rights Act have played a central role in empowering people experiencing mental health problems and shifting the power balance between service providers/commissioners/the state and service users and their families.
The rights contained in the European Convention also have an impact on day to day staff and carer practice in the mental health sector. Staff and providers of services in the mental health field have the duty to treat people with dignity and respect people’s human rights in everything they do. This includes:
- ensuring that people are cleaned and not left for a long period of time in their own waste
- avoiding verbal and physical abuse
- ensuring that people’s family are informed and can visit people who are in hospitals
- ensuring that people have access to their medical records.
Human rights law is the foundation of every law, including mental health law. Below are a few examples of improvements which have resulted as a consequence of human rights challenges:
- Access to justice for victims with mental health problems.
- Changes in the Mental Health Act 1983: the Act was amended in 2007 to be human rights compliant.
- Mental Capacity Legislation: The Mental Capacity Act (MCA) is underpinned by human rights principles.
- The introduction of the Deprivation of Liberty Safeguards (DoLS).
What are my rights?
Below are a number of fundamental rights included in the Human Rights Act, and the impact each has on mental health.2
Article 2: the right to life
Every person’s life must be protected by the state. This right imposes strong duties on the state to refrain from lawful killing; to investigate suspicious deaths; and, to protect life. The most obvious impact of this Article is on the issue of suicide. The European court has held that the article requires hospitals to take measures to ensure steps are in place to secure an individual's right to life.
Article 3: the prohibition of torture
This includes inhuman or degrading treatment, such as severe cases of police violence or appalling conditions in prison. For example, the European court has ruled that giving a patient a cheaper psychiatric drug with worse side effects than a more expensive one was inhuman treatment.
Article 5: liberty and security
Every person has the right to personal freedom. This freedom cannot be taken away without good reason. When it is confirmed by a medical professional that an individual is of unsound mind, there are exceptions to enacting Article 5 through DoLS.
Article 6: right to a fair trial
Every person who has been charged with a criminal offence, or whose civil liberties could be limited by a decision of a public authority has the right to a fair and public hearing. This applies to mental health review tribunal hearings, but also to hospital managers' hearings.
Article 8: right to respect for private and family life
This Article has been interpreted very broadly. Broadly Article 8 grants to every person the right to carry on their life privately, without the intervention of the state. This is likely to have implications for mental health, for instance, patients are likely to rely on this article to ensure that they get family visitation rights, and long-term patients could use it to press for conjugal rights and to ensure that children are not detained without their parents' consent. It could also be used to challenge powers of search.3
Article 14: no discrimination
This Article requires the state to apply all rights without discrimination.
What should you do if you think someone's rights are being interfered with?
The right to liberty can be referred to as a ‘limited right’ since it can only be restricted in certain situations. So long as it is in accordance with mental health laws and is proportionate, an individual can be lawfully detained on mental health grounds, however if further clarity is required, the following steps provide some initial guidance for what to do if you think someone’s rights are not being upheld:5
- Raise the issue informally with the public authority in question.
- Raise the issue formally with a letter.
- Strengthen the wording of the letter and tie in closely to your human rights argument.
- Contact the Health Service Ombudsman.
- Contact a monitor and/or regulator, for example, the CQC or Healthwatch England.