JUSTICE is supporting an amendment to the Mental Health Bill which would extend the human rights protections for those receiving contracted-out mental health care or treatment. This follows our 2024 report ‘Beyond the Blame Game: a responsible and rights-centred approach to government contracting’.
Section 6 (3) Human Rights Act
The Human Rights Act is 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. 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.
As JUSTICE’s report highlighted, over the last few decades, there has been a large expansion of core government services contracted out to the private sector. In the care sector for example, 96% of residential adult social care is now contracted out, up by 20% since 2001.
The Amendment
The amendment, in the names of Baroness Keeley and Baroness Barker, would extend the human rights protections of mentally ill individuals who received publicly funded care and/or treatment in private facilities.
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.
Why the amendment is needed
A recent High Court decision has highlighted why this amendment is needed. Mr. Sammut, a man with chronic and treatment resistant schizophrenia, was transferred from a secure hospital to a private nursing facility where he was deprived of his liberty without proper authorisation. He sadly died and an inquest found that his death was related to his anti-psychotic medication. His care and treatment were funded by a combination of Manchester City Council and an NHS Trust.
Mr. Sammut’s family brought a claim against Next Steps – a private nursing home provider – and the 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.
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. The Human Rights Act is a crucial safeguard for individuals up and down this country on a day-to-day basis, especially for those with vulnerabilities such as those in care.
Mental Health Bill – Briefing, House of Lords Committee Stage (January 2025)
Mental Health Bill – Written Evidence, Joint Committee on Human Rights (February 2025)