It is 2020’s Mental Health Awareness Week, the UK’s national week to raise awareness of mental health and mental health issues. Mental Health Awareness Week has been running for almost 20 years, but this year can’t be compared to any other.  Over the past few months, Covid-19 has had a huge impact on all of our lives, and for many our mental wellbeing has been affected.

Since March BIHR have been keeping up to date with the changes to law and guidance that are being put in place in response to the Covid-19 pandemic. Our work directly in communities, working with people with mental health issues, families and carers, advocates and services, mean we have been raising our concerns about what these changes mean for people in their everyday lives. When thinking about the legal changes due to Covid-19, many people think about lockdown and the rules on where we can go and who we can see. These rules, some of which have been put into laws, affect us all. Safeguarding mental wellbeing during this time has been challenging for many, and it is a topic of constant conversation across the nations.

Importantly, there have also been specific legal changes (or possible future changes) to mental health law. The changes are different in England, Scotland, Wales and Northern Ireland, and after much research we’ve pulled them together in one place,  here. Some of these changes remove or change important safeguards for people who have mental health issues.

Regardless of all the changes to our lives and to the law, a key thing that has not changed is our human rights law here in the UK, the Human Rights Act. The Human Rights Act protects the rights of everyone in the UK, regardless of age, gender, race, mental health issues etc.

The Legal Duty on Public Officials

Human rights are central to proper mental health care and treatment. Legally, people working in public service, “public officials” (such as NHS staff, local authority staff and the police), have to protect, respect and fulfil your human rights in all of their decisions and actions. This duty to uphold human rights has not changed during the Covid-19 pandemic. This duty to protect human rights is as important as ever, as services are facing increased stress due to the pandemic. Human rights are not an added extra, something to be looked at when everything else is going well. Rather, human rights  should be our guide for the response to, and recovery from, this pandemic.  Beyond this crisis, human rights provide the frame through which we understand if and what has gone wrong, how to fix or address these, and how to prevent such things happening in again. If, as suggested, Covid-19 may hit in waves, these lessons will be vital.

At BIHR we work with people with mental health issues everyday and they tell us, having their human rights respected would have helped make their experience of mental health treatment (and detention, when that happens) far less traumatic.

Covid-19 has meant that many of the support networks that we all used to use no longer exist in the same way. Added to this some of the changes to mental health law affect the safeguards put in place for people who are receiving mental health care and treatment. For example, changes to the way mental health tribunals are being held in Wales and England.  However, any changes that are made to existing laws, even if temporary still need to be compatible with our human rights law. The emergency laws for the Covid-19 period to not provide and opt-out of human rights laws. This means that it is more important than ever that both staff and people accessing mental health services know about human rights and the legal duties of public officials to protect, respect and fulfil them.

Human Rights Creating Change

We know from our work with thousands of people each year that if you support people to understand their human rights, and staff in services and authorities to make the human rights-respecting decisions that the law requires, this leads to huge improvements. People are not asking for charity or goodwill, but rather for the well-being to be protected and for them to not be harmed; these are legally protected human rights. The legal duty on public services and authorities also means their staff and supported to make, sometimes difficult, decisions using a practical framework that places people at the centre.

For example, when Nina turned 18 she was moved over 100 miles from home to receive mental health treatment. She lost contact with her family, became really distressed and her mental health worsened. You can watch Nina’s story here, and see how she was much better supported when staff started to take her human rights seriously and make rights-respecting decisions.

None of this changes because of Covid-19. We all still have our human rights, and even if safeguards in mental health laws have (or might be changed), the duty to respect and protect our human rights remains. We can see this in the Sam’s story.

Source: Doughty Street Chambers (We have changed Sam’s name)

Knowledge is power

It is important for all of use to know that our human rights must still be respected, protected and fulfilled during all of our interactions with public services. We have already seen that the Covid-19 pandemic has, at times, led to hasty, heavy handed and not well thought out decisions that may risk our human rights. Using the language of human rights is useful way to discuss and understand decision making from both side and can create real change.