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Mental Health & Capacity

Human rights apply to everyone and other laws, like mental health laws or mental capacity laws, must be applied in a way that respects human rights wherever possible. All public body workers have a duty to uphold human rights, including healthcare workers, social workers and courts.

If somebody doesn’t have the capacity to make a particular decision, a decision must be made in their best interest. This includes carrying out an assessment of their human rights and, under both mental health law and the human right to private life, involving the person as much as possible in the decision.

The Human Rights Act plays an important role in protecting the security and dignity of people accessing services as well as giving staff a tool to guide them through a complex maze of other laws as they make (often difficult) day-to-day decisions.

Key information

Who is this for:
Individuals and communities

Last updated
16th May 2023

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Real life stories

Article 2 issues may arise if staff do not take action when they know the life of somebody they are caring for is at risk.

Melanie was 24 years old and voluntarily admitted herself to a mental health hospital after she’d attempted to take her own life. She was assessed as being at high risk of suicide and the doctor advised ward staff that if Melanie asked to leave, she should be re-assessed and if necessary detained under the Mental Health Act to try and protect her right to life. At the weekend, Melanie left the hospital and whilst on leave from the ward took her own life. Her family took a human rights case to court, the court ruled that the hospital had failed in their duty to protect Melanie’s right to life.

Rabone v Pennine Care NHS Foundation Trust

Article 3 issues may arise if people are treated in a way that harms their dignity and/or wellbeing.

Amrit is a young man who was placed in residential care on a short-term basis, due to mental health problems. During a visit one day, his parents noticed bruising on his body, which no one seemed to be able to explain. They raised the issue with the managers at the home, but their concerns were dismissed. They were also told that they were no longer permitted to visit Amrit. After participating in a BIHR training session, Amrit’s parents approached the care home once again and raised Amrit’s right not to be treated in an inhuman and degrading way and their own right to respect for family life (Article 8). As a result, the ban on their visits was revoked and an investigation was conducted into the bruising on their son’s body.

Article 5 issues may arise when people’s freedoms are restricted at home, in care homes or in hospital settings.

John is a carer for his 81-year-old mum, Wendy, who lives at home and has severe dementia. A Social Worker visited Wendy when she was at home alone and noticed she had scratches and bruises but Wendy couldn’t remember where they came from. The Social Worker took Wendy away to a nursing home without telling John. It took John 19 days to find out where John was (after his lawyer wrote to the council). Social Services did not investigate Wendy’s bruises but kept John from visiting her unsupervised for one year. Social Services eventually dropped the issue and John and Wendy brought a case to court. It was found that Social Services did not have the proper authorisation to keep Wendy in a care home and had not assessed the risks to her, so had breached her right to liberty and right to family life (Article 8).

Article 6 issues may arise when somebody is not involved as far as possible in decisions that impact their human rights.

AS was living with his mother while his father was in hospital being treated under the Mental Health Act. His mother was then admitted to hospital for mental health treatment. The Local Authority placed AS with foster carers but did not ask for his mother’s consent (and did not establish until later that she did not have capacity to consent). The Local Authority eventually applied to the court for permission to place AS with foster carers. However, the court said that the delay in doing this meant that there was a period where AS was being accommodated unlawfully, in breach of the family’s Article 8 rights to private and family life, and so AS’s mother had been deprived of her right to a fair trial.

London Borough of Brent v MS, RS, AS (by his Children's Guardian) (Case No: ZW14C00295)

Article 8 may arise when somebody is not supported to keep in contact with their loved ones or to make decisions as far as possible about their private life.

Dora and Simon had been married for 59 years. Dora was blind and had recently developed Alzheimer’s. She moved into a local publicly funded nursing home where Simon visited her every day. However, their relationship was threatened when the local authority decided to move Dora into a permanent nursing home that was too far away for Simon and their children to visit.

Simon contacted Counsel and Care, who helped him challenge the move on the basis that his and Dora’s right to family life was at risk. Social Services decided to allow Dora to remain in the nursing home close to her family and to Simon.

Article 12 issues may arise when there are questions about somebody’s capacity to consent to marriage.

Ishmael was a long-term patient at a mental health hospital who wanted to marry his partner, Eve. Having received support on using human rights from BIHR, staff at the hospital did not jump to conclusions about what was best for Ishmael based on his mental health issues.

They felt better equipped to move away from a model of decision-making that focused solely on risk and harm avoidance towards a model that included potential for the people in their care to lead full and flourishing lives. Staff decided to take every step they could in supporting Ishmael and Eve to marry.

Article 14 issues may arise when blanket assumptions are made about someone’s best interest based on their health or capacity.

Andrew was a 51-year-old man with Down’s syndrome and dementia. During a hospital stay, he had a ‘Do Not Resuscitate’ order (an instruction to the medical team not to attempt resuscitation if he fell unconscious) put on his file without him or his family being consulted. The reasons written on the order by the doctor were: “Down’s syndrome, unable to swallow... bed bound, learning difficulties”.

As Andrew's life was at stake, he was able to challenge this as a discriminatory risk to his right to life. He started a human rights legal case but it was settled out of court and the NHS Trust apologised.

Article 1, Protocol 1 issues may arise when someone is prevented from accessing their belongings.

Debbie’s son Peter was in a Children & Young People’s Mental Health Services inpatient ward. Debbie bought him some new clothes, going to great effort to find clothes he would like that meet his sensory needs. However, when Debbie came to visit Peter, he was dressed in clothes that she did not recognise, and staff told her, “we couldn’t find his clothes this morning so we found him something to wear from the lost property box”. Debbie is very upset and raised this as a disproportionate breach of Peter’s right to possessions.

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