Amendment to Mental Health Bill proposes extending human rights protections to those receiving contracted-out care

Law reform charity JUSTICE is backing an amendment to the Mental Health Bill which would extend human rights protections for those receiving contracted-out mental health care or treatment, including publicly funded after-care under section 117 of the Mental Health Act 1983 

The amendment is being put forward in the House of Lords by Baroness Keeley and Baroness Barker.

Last year JUSTICE issued a report, ‘Beyond the Blame Game: a responsible and rights-centred approach to government contracting’’, on outsourced public services, which it claimed were "failing to protect the rights of individual service users”.

The charity described the Human Rights Act (HRA) as an essential tool for individuals to hold public authorities to account.  

“However, the definition of ‘public authority’ in section 6 (3) HRA has been narrowly interpreted by the courts. In the leading case of YL v Birmingham City Council, the House of Lords found that a private care home was not a public authority despite YL’s placement there being funded by a local authority,” it said.

“Successive Governments legislated to address this accountability gap for publicly funded care, most recently section 73 Care Act 2014. However, a recent case shows that individuals are slipping through the cracks.”

The proposed amendment to the Mental Health Bill would extend the human rights protections of mentally ill individuals who received publicly funded care and/or treatment in private facilities.  

JUSTICE said: “Specifically, it would make clear that people receiving care in private settings in the following three circumstances would be able to fully rely on the protections of the Human Rights Act: 

• those receiving publicly funded after-care under section 117 Mental Health Act 1983 
• publicly funded patients accommodated in private hospitals for treatment for a mental disorder; and 
• those deprived of their liberty in health and social care settings because of their mental disorder or disability. This would include privately funded care users, considering the state’s human rights responsibilities when liberty is being deprived.”

The High Court case highlighted by JUSTICE was Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).

The family of a man who died in a private nursing facility brought a claim against the nursing home provider and an NHS Trust.

However, the High Court struck out the human rights claim against the provider, because his care was outside the scope of section 73 Care Act 2014 and so the principles in YL applied, according to JUSTICE.

The charity said: “The private provider was found to not be a public authority. This meant they owed no legal human rights obligations to their publicly-funded care users and such individuals could not hold them accountable for any breaches of their human rights.”