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Where do my rights apply?

Mental Health & Capacity

Everybody in the UK has the same legally protected human rights regardless of their mental health or capacity. Staff working in mental health services have a duty to respect, protect and fulfil those rights. If someone does not have capacity to make a decision, judges or hospital staff might have to make a decision in their best interest – but they must do so in a way that respects human rights as far as possible. 

Across the UK, there are laws which give medical staff, police and or/local authorities powers to carry out treatment with or without a person’s consent. For example, they may allow staff to restrain someone in order to protect them or others from harm or to give someone medication. Importantly, staff must interpret these powers in a way that respects human rights if they can and find the least restrictive option possible. 

In England and Wales there’s the Mental Health Act and the Mental Capacity Act. In Scotland, there’s the Mental Health (Care and Treatment) (Scotland) Act and the Adults with Incapacity (Scotland)Act and in Northern Ireland there’s The Mental Capacity Act (NI) which fuses together mental health and mental capacity legislation.

Key information

Who is this for:
Individuals and communities

Last updated
16th May 2023

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Real life stories

The right to life may be at risk if staff do not take steps to protect somebody’s life even though they know it is at risk. 

Carol was detained in hospital under the Mental Health Act. She was diagnosed with paranoid schizophrenia and had been assessed at various times as being at risk of suicide and of trying to leave without permission. Carol managed to leave the hospital without the staff noticing and was tragically killed by a train. The Court said by failing to regularly check on Carol, the hospital had breached its duty to protect her right to life. 

The right to be free from inhuman or degrading treatment may be at risk if somebody is treated in a way that causes them serious harm or embarrassment. 

Luke was being treated in a mental health ward where staff would sometimes use restraint. He understood this was sometimes necessary for his safety and other people’s. However, on one occasion he felt restraint was used to punish him during a challenging episode. A staff member pushed his arm up to his back in a very painful way and he had to get medical treatment. Luke’s advocate raised a written complaint explaining Luke’s right to be free from degrading treatment may have been breached and the hospital carried out a formal investigation. Although it was found the use of restraint was not inappropriate in the circumstances, the ward introduced a new staff training programme to ensure restraint was used proportionately and as safely as possible. 

The right to liberty may be at risk when somebody’s freedom is restricted without proper safeguards.  

Peter was an informal patient at a London mental health hospital, meaning he is allowed to leave the hospital whenever he likes. However, when Peter tried to leave the ward to visit his friends and sister, nurses told him it was not in his best interests to do so. Peter’s advocate, Rana, had been trained by BIHR and wrote to the hospital explaining that this risked breaching Peter’s right to liberty. Since Peter was not a formal patient, stopping from leaving essentially meant staff were detaining him without any of the normal safeguards. The nurses then started letting Peter leave whenever he wanted. His relationship with them improved and so did his mental health; he was discharged shortly after. 

Source: Cambridge House Mental Health In-Patient Advocacy Project 

The right to a fair trial may be at risk when decisions are made about somebody’s rights without them being involved or informed. 

17-year-old Marc was an inpatient on a mental health ward. Marc was quiet and reserved and did not voluntarily spend a lot of time with the other inpatients. However, when behaviour on the ward started to deteriorate, staff blamed Marc because he was one of the older inpatients, Marc was blamed for this and the staff say that he is the ringleader. Staff decided to move Marc to another unit, over 100 miles away. Marc is currently in award close to his family, so they can visit regularly. Moving Marc would impact on his relationship with his family, protected under Article 8. Marc and his family were not involved in this decision or told if they could challenge it. This breached Marc’s right to a fair trial, as he was not involved or informed about decisions that impacted his rights. 

The right to private and family life may be at risk when somebody is unfairly prevented from making decisions about their personal life. 

Mrs Ogundoyin had dementia lived in an NHS nursing home and staff said she was difficult to work with because she often shouted and became agitated in the mornings. A doctor who had done training with BIHR found out that she was used to getting up at 5am because she had a lot of caring responsibilities from a young age, so she found it distressing that staff were leaving her in bed until 11am each day. He explained to staff that they should respect Mrs Ogundoyin’s preferred routine as far as possible because of her right to private life. Staff started helping her out of bed at 5am and her “difficult” behaviour stopped. 

The right to marry and found a family may be at risk when staff try and prevent someone from marrying even though they have the capacity to make the decision themselves. 

21-year-old E had hydrocephalus and spina bifida and was described as functioning “at the level of a 13 year old” and being “vulnerable to exploitation”. E wanted to marry S, a 37-year-old man with a history of sexually violent crimes. The local authority wanted doctors to assess whether E had capacity to marry S, specifically. E’s solicitors argued that this was an interference with her right to marry as the only test should be whether she had capacity to consent to marry in general; if she did, it did not matter who she chose to marry and whether they were a “suitable” partner. The Court agreed, ordering experts to just look at whether E had capacity to consent to marriage in general, saying, “there are many people in our society who may be of limited or borderline capacity but whose lives are immensely enriched by marriage. We must be careful not to set the test of capacity to marry too high, lest it operate as an unfair, unnecessary and indeed discriminatory bar against the mentally disabled.” 

Sheffield City Council v E [2004] 

The right to be free from discrimination may be at risk when staff make blanket assumptions about someone’s best interests or capabilities based on factors like age or disability. 

The Care Quality Commission (the regulatory body responsible for inspecting some care homes in England) found that Admiral Court Care Home was breaching residents’ right to liberty by imposing restrictions on them without evidence that they didn’t have capacity to make decisions. Imposing blanket restrictions based on assumptions about someone because of their age or ability breaches the Article 14 right to be free from discrimination. The Care Home was closed down as a result of the Commission’s findings. 

The right to peaceful enjoyment of possessions may be at risk when somebody is prevented from accessing or using their belongings in the way they wish. 

Aslan was a 71-year-old man with a learning disability who gave away around 70% of his income to charity every month. When his rent was increased, he struggled to afford it. His carer raised concerns about whether Aslan had capacity to make financial decisions and whether he understood the impact of giving so much to charity and not being able to pay his rent. A social worker, Margaret, talked to Aslan and found out that he had always prioritised donating money because of his strong religious beliefs. However, he did not seem to understand that if he did not pay rent, he could lose his tenancy. Margaret arranged a capacity assessment which found he did not have capacity to make financial decisions. Mindful of Aslan’s right to possessions and to be at the centre of decision-making about his own money, Margaret arranged an Appointee who helped Aslan manage his money and ensure rent was paid while also ensuring 70% of the remaining money continued to be donated to charities of Aslan’s choice. 

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