We're Mind, the mental health charity for England and Wales. We believe no one should have to face a mental health problem alone. We provide advice and support to empower anyone experiencing a mental health problem. We campaign to improve services, raise awareness and promote understanding.
In the twenty years since becoming law, the Human Rights Act (HRA) has played a vital role in securing rights for people with mental health problems.
We know that many people with mental health problems experience infringements of their human rights. This can take the form of abuse and degrading treatment; unwarranted deprivation of liberty and autonomy; lack of protection for family and private life; as well as routine discrimination.
The HRA provides vital protection for people with mental health problems by helping to change practice and procedure, culture and attitudes, and offering redress when breaches have taken place.
We recommend better recognition of the importance of the HRA in securing rights for people with mental health problems.
In considering the future of human rights protections, we have identified two key risks to the enjoyment of rights by people with mental health problems: firstly, threats to access to justice; and secondly, lack of domestic implementation of international standards.
In addition to this submission, Mind has also supported joint submissions made by Just Fair and the British Institute of Human Rights.
Our recommendations:
In response to the above, this section will focus on the following questions:
By making the rights from the European Convention of Human Rights (ECHR) enforceable in the UK, the HRA “brought home” important protections for people with mental health problems. The following rights are key in a mental health context:
In addition to securing particular rights from the ECHR, the HRA provides that those rights form part of UK law in three ways. All of which have been of benefit to people experiencing a mental health problem.
Firstly, the HRA means that people with mental health problems can enforce their rights through domestic courts, rather than being required to go to the European Court of Human Rights for justice. For people with mental health problems and their families, this has meant being able to seek legal accountability in the UK when human rights have been risked or breached.
For the Rabone family, it meant being able to take a human rights case to court after their daughter, Melanie, took her own life on leave from hospital. In this case, the court ruled that the hospital had failed in their duty to protect Melanie’s right to life (Article 2).[2] From this case and others like it, it has been established that hospitals do have a positive obligation under Article 2 to take reasonable steps to protect a patient’s life when there is a real and immediate risk.[3]
Other examples of positive outcomes for people with mental health problems taking human rights cases to court include:
We have also seen the importance of the HRA and the enforcement of rights via domestic courts in the many recent cases challenging immigration detention and the conditions in Immigration Removal Centres. In the last few years, there have been six cases where the High Court found that detention and conditions of detention breached the right to be free from inhuman and degrading treatment (Article 3). Not only are such cases important to individuals seeking accountability for violations of human rights, but also in driving policy developments and reform. Those six cases of inhuman and degrading treatment were a key driver in the independent review of welfare in detention of vulnerable persons, led by Stephen Shaw.
Secondly, the HRA secures rights through a duty on public authorities (section 6), making it unlawful for them to act incompatibly with human rights. The s6 provision has secured positive outcomes for many people with mental health problems, both in individual cases and through more rights-respecting services. We know that human rights are often used outside the courtroom to challenge poor treatment and drive improvements to services.
Below are two case studies from Mind in Brighton and Hove, who partnered with the British Institute to Human Rights (BIHR) to incorporate human rights into their work:[6]
Jenny’s story
Jenny was an informal patient in a hospital, so she was not detained under the Mental Health Act. Staff told her that she was not allowed to go off the ward to visit the shops or go for a coffee. When Jenny and her advocate questioned the hospital staff about this, they said they didn’t feel she was well enough to leave the ward. Jenny’s advocate explained to the staff that Jenny was effectively being unlawfully detained and that this might be a breach of her right to liberty (Article 5). After discussing concerns about her safety, Jenny and the staff agreed a plan together. At first, Jenny agreed that a staff member could accompany her off the ward. The situation was then discussed with the ward manager and Jenny could leave the ward unaccompanied and was safe.
Yasir’s story
When Yasir was detained under the Mental Health Act in hospital, a doctor repeatedly contacted one of their relatives. Yasir had requested that no contact was made with that person, as they had a very difficult relationship. Supported by their advocate, Yasir challenged the doctor who persisted in contacting this person, with reference to the right to private and family life (Article 8). As a result of this, the doctor stopped contacting that particular relative.
Both Jenny and Yasir were supported by advocates from Mind in Brighton and Hove. The advocacy service told us how helpful human rights have proved to their work; one of the advocates said that “being able to state what the client’s human rights are, with knowledge and authority, lent more weight to the complaint, rather than simply stating that the treatment was unfair or cruel”.[7]
One of the original aims for the HRA was that it would help bring about a “culture of human rights” in the UK. Whilst we still have further to go in making sure that public services fully respect and protect the rights of people with mental health problems, the s6 duty remains important to this original aim - creating a culture of human rights by embedding them in the everyday interactions between an individual and the state. The potential of the s6 duty in preventing risks to and violations of rights occurring in the first place remains of utmost importance.
Finally, the HRA requires law and policy to be compatible with the rights listed in the legislation, as far as possible. For people with mental health problems, this has meant laws and policies which have better respected human rights - and a route to challenge when this isn’t the case. The Mental Health Act has been challenged a number of times in this way, through both Declarations of Incompatibility and judicial interpretation.
For example, the right to liberty (Article 5) was used to challenge a section/provision of the Mental Health Act, which placed the burden of proof on patients to prove that the criteria justifying detention in hospital for treatment no longer existed in order for the Mental Health Review Tribunal to order discharge. This was found to be incompatible with human rights, and the court issued a Declaration of Incompatibility. [8] Following the case, the situation was remedied with the introduction of the Mental Health Act 1983 (Remedial) Order 2001.
In the case of SSG, who wanted her same-sex partner to be her ‘nearest relative’ under the Mental Health Act, judicial interpretation clarified that same-sex partners should qualify as a “relative” under the law.[9]
In this sense, the HRA has adapted the Mental Health Act in response to changing times. Whilst such changes to the Mental Health Act are welcome, we believe that this law requires further reform. We welcome the independent review of the Mental Health Act, led by Professor Sir Simon Wessely, as being both necessary and timely. A survey by the Mental Health Alliance found that, while a majority of respondents said there were circumstances when being treated against your will in hospital may be necessary, there were deep concerns that people's dignity, autonomy and human rights were being overlooked.[10] In our submission to the Mental Health Act Review, we have called for the principles and rights of the Human Rights Act (and Equality Act) to be explicitly laid out in the Mental Health Act.[11]
This section will focus on the following questions, posed in the Terms of Reference:
Looking at the future of human rights protections, we have identified two key risks: firstly, the threat to access to justice; and secondly, lack of domestic implementation of international standards.
a. Access to justice
For the Human Rights Act to truly ‘bring rights home’, human rights must be enforceable and, therefore, the justice system accessible. Without access to justice, human rights risk becoming only “theoretical and illusory”.[12] The importance of access to justice for making rights “practical and effective” was recognised by the Joint Committee on Human Rights, in the recent inquiry into enforcing human rights.[13]
We have identified three key risks to access to justice for people with mental health problems:
Judicial review is an important route enabling people to challenge decisions made by those in power, and plays an important constitutional role. However, in practice we know that judicial review does not represent full and meaningful access to justice for many people. For example, whilst judicial review is the process through which people can challenge treatment decisions, there has only been one reported case in the past 12 years.
Judicial review is complex; it can be time consuming and stressful. Before taking a case, it is necessary to seek advice from a legal adviser who specialises in public law. There are time restrictions on when you can bring a claim - at the very latest an application must be made within three months of the decision being made. The public law grounds on which a case can be brought can also limit the ability to challenge. Moreover, anyone lacking the mental capacity to bring about proceedings will need a litigation friend to represent them (ie family, friend, professional advocate or the Official Solicitor).
We are concerned that cuts to legal aid has had a damaging effect on the ability of people with mental health problems to pursue judicial review. Our concerns about cuts to legal aid are expanded on below.
Legal aid plays a vital role in providing people with access to justice. We are concerned, however, that access to justice is increasingly under threat due to cuts to legal aid and advice. The Legal Aid, Sentencing and Punishment of Offenders Act 2012 (LASPO) brought drastic reductions to expenditure and case volumes in civil legal aid, leaving people in need of legal advice and representation unable to access it.
Since the introduction of these changes, we have been concerned at the deeply negative impact on people living with mental health problems.
We commissioned research in 2017 to investigate the effects of these changes on people with a mental health problem. This research shows that cuts to legal aid have disproportionately affected people with experience of a mental health problem.[14]
The findings showed that people with mental health problems are more likely to have experienced legal problems (52% compared to 27% of other respondents). They were also more likely than other respondents to experience more problems and large clusters of problems. Almost 1 in 4 of those with mental health problems had experienced 6 or more legal complaints, compared to just 8% of other respondents. The research also showed that people with mental health problems were less likely to try to handle the legal process without any legal advice (and more likely to consult family and friends). They were, however, slightly more likely to have made unsuccessful attempts to contact advisers.
This research makes clear that the changes made to the legal aid system are threatening the right of people with mental health problems to access justice. We are deeply concerned by these findings, and believe urgent legislative change is required to protect the rights of people with mental health problems.
We are calling on the Government to reassess the changes made to the justice system to ensure legal advice and support for people with mental health problems is protected, and made easier to access.
Being sectioned is one of the most serious things that can happen to somebody experiencing a mental health problem. The decision to detain somebody not only restricts that individual’s right to liberty (Article 5), but often has implications for other rights, including the right to private and family life (Article 8). It is important that people are able to access justice, and effectively challenge decisions that engage their rights.
When people are detained under the Mental Health Act in England, the First-tier Tribunal (Mental Health) reviews the lawfulness of the detention. This is an important safeguard for patients’ right to liberty, as required by human rights law. At present, however, the powers of the Tribunals are limited to discharging patients from hospital absolutely or with conditions.
We believe that the powers of Tribunals should be extended. People detained under the Mental Health Act should be able to apply to the Tribunal to challenge breaches of their rights, including compulsory treatment decisions. We have made a number of recommendations to the Mental Health Act Review relating to Tribunals, including the scope of their considerations and when/how they are automatically triggered.[15]
Finally, we are strongly opposed to proposals made by the Tribunals Procedure Committee,[16] which would water down the safeguards designed to protect people’s right to liberty. We maintain that detentions require the highest level of scrutiny as a person’s liberty is restricted, and urge that these proposals are rejected.
The UK government has signed and ratified a number of international treaties designed to promote and protect human rights. Most significantly for people with mental health problems, is the United Nations Convention on the Rights of Persons with Disabilities (CRPD).
The UK government has not incorporated the CRPD or other UN human rights treaties into domestic law.[17] Whilst these treaties are binding in accordance with international law, there are no mechanisms to fully enforce these rights in the UK.[18]
Not all rights were brought home with the HRA. We support Just Fair’s joint submission to this inquiry, which recommends enhancing the status of international human rights treaties in the national legal system.
The CRPD represents the gold standard of human rights protections for disabled people, including people with mental health problems. The approach taken to disability by the CRPD is very different to other international human rights standards, including the ECHR. The CRPD adopts a social model of disability. It encourages the idea that it is society that should change and remove barriers to disabled peoples’ dignity and full participation in society.
As a result, we have a conflict in international human rights law on the issue of detention - and whether it is acceptable to detain someone on the basis of “unsound mind” or “mental disorder”.
The ECHR permits depriving someone of their liberty on the basis of “unsound mind”. The HRA therefore (and the Mental Health Act) takes the same approach.
Whereas, the CRPD states that the existence of disability should in no case justify a deprivation of liberty (Article 14). Under the CRPD, disabled people should enjoy the right to liberty on an equal basis with others. This approach would still permit detention based on risk (with appropriate safeguards), but not necessarily hinging on the basis of a “mental disorder”.
We believe that there is a strong case for exploring basing the system for deprivation of liberty and involuntary treatment on capacity to make decisions. We believe that such a system would better comply with our international human rights obligations. In response to the Mental Health Act Review, we have called for a concrete commitment for work to develop options for capacity-based legislation. [19] In the meantime, we want capacity-based decisions engrained in the Mental Health Act as far as possible, through the introduction of advance statements and a statutory requirement to consider a person’s wishes and preferences during care planning.
We have also called for the Mental Health Act to protect and operationalise rights enshrined in the CRPD. We believe that this would better promote the right to health (which isn’t explicitly covered by the HRA) and furthermore help avoid unnecessary restrictions on the right to liberty and other rights.
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[1] We have included in this submission a number of our recommendations to the independent review of the Mental Health Act, which we see as being of particular relevance to this inquiry.
The full list of our recommendations can be found in our submission to the Mental Health Act Review
[2] Rabone v Pennine Care NHS Foundation Trust, 2012
[3] See also: Savage v South Essex Partnership NHS Foundation Trust, 2009
[4] Clarke v London Borough of Sutton [2015] EWHC 1081 (Admin)
[5] DG v Secretary of State for Work and Pensions, 2010
[6] Both Jenny and Yasir’s names have been changed
For more information about Mind in Brighton and Hove’s work with the British Institute of Human Rights (BIHR), please see Care and support: a human rights approach to advocacy and The difference it makes: putting human rights at the heart of health and care
[7] Claire, Community Advocate at Mind in Brighton and Hove (supported by BIHR)
[8] R (H) v MHRT North and East London Region (2001) EWCA Civ 415
[9] Please note that this case took place before the introduction of equal marriage
R (SSG) v Liverpool City Council [2002] EWHC 4000
[10] Mental Health Alliance (June 2017) A Mental Health Act fit for tomorrow
[11] Mind’s submission to the Mental Health Act Review
[12] As stated by the European Court of Human Rights in Airey v. Ireland, Series A No. 32, 2 EHRR (1979–1980) 305
[13] Joint Committee on Human Rights’ inquiry into Enforcing Human Rights (2018)
[14] This research is published in full in our report, An unjust system (2018)
[15] For detailed recommendations, please see our submission to the Mental Health Act Review
[16] Tribunal Procedure Committees’ proposal to amend the Tribunal Procedure (First-Tier Tribunal) (Health, Education and Social Care Chamber) Rules 2008 (March 2018)
[17] It is worth noting, of course, that the Welsh government has formally adopted the United Nations Convention on the Rights of the Child.
[18] Such international human rights standards only have effect in the UK via the HRA, when the courts can apply them in the interpretation of HRA rights. This is of benefit, but of limited effect.