Equality and Human Rights Commission

This guide is written directly for people living with mental health problems. It will also be useful for people working in the mental health sector or wanting to learn more about the impact of human rights on mental health. It is written in non-legal language and contains examples based on legal cases and on the use of human rights arguments outside the courtroom. The guide explains which human rights are most relevant for people with mental health problems and how these rights might come into play in mental health settings and in the community. It contains practical advice about how a person with mental health problems, or their advocate, can recognise and challenge unacceptable practice either informally or via complaints procedures or by taking a case to court. The guide is not intended to be legal advice, and is out of date with respect to some important aspects of mental health law. It provides contacts and sources of advice where current advice may be sought.

• The Human Rights Act is not just about preventing public authorities from taking certain actions. It also requires them to take proactive steps to prevent breaches of human rights from happening in the first place, no matter who or what is causing the harm.
• Public authorities must not 'use a sledgehammer to crack a nut'; if they cannot show that they have acted in a proportionate way when interfering with a right, then the right will have been breached.

Human rights and mental health

This guide focuses on the three human rights that have been used most widely to protect people living with mental health problems:

• the right not to be tortured or treated in an inhuman or degrading way
• the right to respect for private and family life
• the right to liberty

For each, it explains commonly used terms and concepts and the types of practice or treatment that might infringe the right.

The right not to be tortured or treated in an inhuman or degrading way

The guide explains that this right is 'absolute': this means it may never be breached, restricted or limited.

• inhuman treatment means treatment causing severe mental or physical harm
• degrading treatment means treatment that is grossly humiliating and undignified

The guide explains that public authorities have a duty not to treat people in an inhuman or degrading way. They also have a positive duty to take proactive steps to protect people from this kind of treatment even where it is not directly caused by them; for example, if it is caused by relatives.

The guide notes that the treatment does not need to be deliberate - it is the impact it has that matters. For example, if staff in a care home unintentionally leave residents in soiled bed sheets for long periods because they are understaffed, this may still amount to inhuman or degrading treatment.

Other situations that may, in certain circumstances, involve inhuman or degrading treatment include:

• excessive force used for restraint
• calls for help being routinely ignored
• extremely poor conditions in a hospital or care home
• washing or dressing a person without regard to their dignity
• neglect or abusive treatment, and
• treatment without consent.

Case example:
A man sectioned with a mental illness, who also had a heart condition, was given a particular drug as part of a medical trial. He objected and had to be held down to have the drug injected. A court said that this type of situation could give rise to a breach of the right not to be treated in an inhuman or degrading way. The court also said that a patient in these circumstances should have the opportunity to challenge the decision at a hearing where the specialists could be cross-examined.
Source: Your Human Rights - a guide for people living with mental health problems, p.16

The right to respect for private and family life

The guide notes that this is right is not absolute but is 'qualified'; this means that it may be interfered with in order to take account of the rights of other individuals or the wider community.

Decisions to interfere with a right must be:

• lawful
• necessary, and
• proportionate

Proportionality is a core principle of the HRA. As this guide explains, a proportionate response to a problem is one that is appropriate and not excessive in the circumstances - in other words, that does not 'use a sledgehammer to crack a nut'.

Public authorities must be able to show that they have acted in a proportionate way when interfering with a right; otherwise the right will have been breached.

Public authorities must, in some situations, take proactive steps to ensure that this right is fulfilled. This may include providing extra resources; for example, support to enable a family to stay together.

The right to family life covers close and personal ties of a family kind, not just blood relatives. It is relevant to:

• being able to live together as a family and, where this is not possible, having regular contact
• hospital visits by family members, meaning that decisions to refuse visits should only be taken exceptionally, and
• decisions to separate a person from children, partner or other family members, or restrict contact with them.

The right to private life is defined broadly and covers:

• personal autonomy (making your own choices about your life, including medical treatment)
• human dignity and privacy concerning your body
• being able to establish relationships with others as you wish
• having access to information about your own private life which might be in the possession of others
• having personal information which is part of your private life kept confidential, and
• being able to access medical treatment.

The guide explains that the use of seclusion - keeping and supervising a patient alone in a room that may be locked - usually involves an interference with the right to respect for private life. Therefore if someone is placed in seclusion, this must be justified as being lawful, necessary and proportionate.

Case example:
A man with depression attempted to commit suicide on the street. He was caught by CCTV cameras walking down the street carrying a knife. The local council issued a press release promoting its CCTV system using photographs of the incident. The footage was subsequently released to various press organisations, and was shown in newspaper articles and television broadcasts. The European Court of Human Rights said that this was a serious breach of his right to respect for private life. There were no relevant reasons for the footage to be disclosed without his consent, or without the council making sure that his identity was properly shielded or disguised.
Source: Your Human Rights - a guide for people living with mental health problems p. 25

The right to liberty

The right to liberty is a 'limited' right: this means that it may be limited in specific circumstances set out in the right itself. One of these circumstances is when a person is suffering from a serious mental illness.

This means that compulsory detention does not in itself breach the right to liberty, unless it is unlawful. Detention may only take place where a person is:

• suffering from a specific and recognised mental disorder, and
• detention is necessary in the interests of their own health or safety or for the protection of others.

As this guide was published in 2006, it is out of date with respect to some significant reforms to mental health law. In particular, it does not cover the Mental Health Act 2007, which introduced powers to allow people detained in hospital to be discharged under a Community Treatment Order, requiring them to comply with certain conditions.

Nor does it cover the introduction in 2007 of the 'deprivation of liberty safeguards' into the Mental Capacity Act 2005. These safeguards were introduced in response to a European Court of Human Rights judgment. They exist to protect those who do not have the capacity to give informed consent to the arrangements for their care and treatment. The safeguards are designed to, among other things, ensure that people can be given the care they need in the least restrictive regimes and prevent arbitrary decisions that deprive vulnerable people of their liberty.

Practical advice and information

The guide advises readers what they can do if their rights, or those of someone they know, may have been breached. It presents a range of options including:

• talking informally to a friend, relative or experienced adviser or support group
• raising the issue with those involved, either directly or through an advocate
• making a formal complaint, or
• as a last resort, taking legal action.

The guide is out of date with respect to complaints procedures in the health and social care sectors and the bodies that exist to handle them. It offers a comprehensive directory of contacts and references where up-to-date advice can be sought.

Related equality messages (if applicable):

The guide explains that equality is a core human rights value, and provides a case study where discrimination is a factor, but does not otherwise cover equality issues directly.

Other important information:

As the guidance was published in 2006, it is out of date with respect to some significant reforms to mental health law (see above).

Date of review

April 2011
 

• The National Autistic Society, Action on Elder Abuse and British Institute of Learning Disabilities (undated), All About the Deprivation of Liberty Safeguards and You
  http://www.bild.org.uk/humanrights/docs/The%20Deprivation%20of%20Liberty%20Safeguards%20and%20You.pdf
• Ministry of Justice (2008), Deprivation of liberty safeguards: code of practice to supplement the main Mental Capacity Act 2005 code of practice
  http://www.dh.gov.uk/en/Publicationsandstatistics/Publications/PublicationsPolicyAndGuidance/DH_085476