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Consultation Response

Legislative Scrutiny: Mental Health Bill

The Joint Committee on Human Rights is responsible for looking at proposed laws to see how they could impact on people’s human rights. They asked for views on the way the Mental Health Bill introduced to Parliament in November 2024 could impact on people’s human rights.

What did BIHR say?

We responded to the consultation drawing on our experience of working in the health, care and social work sectors – supporting both staff and community groups to make human rights real.

We consulted with Lived Experience Experts from our RITES Committee when writing our response. We also told the Committee that it was important that they made additional time to consult with Lived Experience Experts to understand how the Bill might work in practice and what that could mean for people’s rights.

As well as analysing the human rights that might be relevant to the Bill, we asked the Committee to:

1. Consult with Lived Experience Experts on the power to detain autistic people and people with learning disabilities with severe behavioural consequences.

Under the Mental Health Bill, people would not be able to be detained for treatment under the Mental Health Act just because they’re autistic or have a learning disability – except for people who have been charged with or convicted of a criminal offence.

We told the Committee that this could engage the human right to be free from discrimination because it means treating people who have the same diagnoses differently based on their circumstances (i.e. whether or not they’re in the criminal justice system).

The Committee should consult with people who have been detained under criminal provisions in the Mental Health Act as well as public body workers to see if this difference in treatment is objectively and reasonably justified.

“If we’re saying we can’t treat people, then we can’t treat people. It’s not okay to say we can treat people if they’re [in the criminal justice system] but we can’t if they aren’t. Potentially, we’re going to set up a two-tier system there for a couple of reasons. One is that, very often, those detained [under criminal provisions] and those [under civil provisions] are detained in the same place…. The Mental Health Act is a treatment section, not a criminal justice section.”

Daisy, RITES Committee Lived Experience Expert

“Both autism and learning disabilities are conditions where individuals may require enhanced care/reasonable adjustments. In this case I believe if an individual was detained in hospital under criminal provisions, they would have a better chance of having these needs met compared to in prison.”

Hanna, RITES Committee Lived Experience Expert

2. Emphasise the need for funding and support for community mental health services.

We told the Committee that there is a clear need for better access to community mental health services for everyone – whether or not they’re in the criminal justice system. This could help address issues before they escalate and mean fewer people end up detained in hospital.

“When we are talking about rights, we should go right back to square one and ask why people’s rights aren’t being met in the community. Because councils can’t afford to meet people’s needs, they sometimes end up in hospitals once care has broken down and their behaviour has reached a level where local providers can’t cope.”

Ian, RITES Committee Lived Experience Expert

3. Consult with Lived Experience Experts on the power to impose conditions depriving people of their liberty.

Under the Mental Health Bill, people who have been charged with or convicted of a criminal offence could be discharged (allowed to leave the hospital) under conditions that would deprive them of their liberty. This means conditions imposed by public authorities that a person can't or doesn't consent to that puts them under continuous supervision or control and where they are not free to leave. For example, it could mean having to live in a certain place and not being allowed to go out without an escort.

We told the Committee that at the moment, people are being recalled to hospital but put on long-term leave with strict conditions in place. This means that people are essentially already living in the community but are being deprived of their liberty. By introducing a formal process for discharging someone with conditions that deprive them of their liberty, the Mental Health Bill could help avoid the informal (and less certain) approach.

The Committee should consult with people who have been conditionally discharged and public body workers to discuss how the Bill would be put into practice and what this could mean for people’s right to liberty.

We also told the Committee that if conditions are applied retrospectively (i.e. to people who have already been conditionally discharged), they need to consider whether this could risk people’s right to no punishment without law under Article 7 of the Human Rights Act. This right includes the right not to be subjected to a heavier penalty than was in place at the time a crime was committed. The Committee needs to assess whether these kinds of conditions could be classed as a “penalty” and whether it is “heavier” than the current process.   

4. Consider the need for independent scrutiny from mental health professionals when depriving people of their liberty.

We also told the Committee that there need to be safeguards in place, such as an independent mental health professional to review conditions.

“I think the fact that they’ve legislated for it is a really good thing…however, where’s the safeguards?...There’s no holistic view here…There needs to be an additional check and balance there - whether that’s the AMHP [Approved Mental Health Professional], whether that’s an independent decision-maker, whether that’s a Social Supervisor.”

Daisy, RITES Committee Lived Experience Expert

5. Support an amendment to the Bill to clarify that providers of after-care under the Mental Health Act have a duty to protect people’s human rights.

Baroness Keeley and Baroness Barker have proposed a change to the Mental Health Bill that would include a clause that explicitly says that when services are providing after-care under the Mental Health Act, they are carrying out a public function and so have legal duties to uphold people’s human rights.

This is particularly important because of a recent case concerning a man called Paul.

Paul's story

Paul was detained in hospital under the Mental Health Act. He was then moved into a private care home for after-care. The NHS and his local council together arranged for and paid for this after-care. In the care home, Paul was deprived of his liberty. He later died in the care home from pneumonia and intestinal issues related to a side effect of a medication he was taking. Paul’s family brought a case against both the care home and the NHS, saying they had breached his human rights. The court said that the care home was not carrying out a public function and so didn’t have a duty to protect Paul’s human rights. The court hasn’t yet said if the NHS breached Paul’s human rights.

Paul’s case shows that there is a potential loophole in the law where the State contracts out public services to private providers. This could make it harder for people like Paul to access their human rights.

We called on the Committee to support Baroness Keeley and Baroness Barker’s amendment to make sure that private care providers to have human rights legal duties when providing after-care under the Mental Health Act, enabling people to enforce their human rights.

6. Consider the unintended human rights consequences of removing police stations and prisons as places of safety.

Under the Mental Health Bill, police stations and prisons would no longer be able to be used as places of safety (a place where someone can be kept while being assessed under the Mental Health Act).

We told the Committee that existing places of safety are already too full, so they need to look into what would happen if there are no available spaces. If people are kept in inappropriate spaces for long periods of time, such as being made to wait outside in cars, this could impact their Article 8 right to wellbeing – or even their Article 3 right to be free from inhuman or degrading treatment.  

We also told the Committee that they need to consider the impact on the human rights of mental health workers if they are put into dangerous situations at work.

“Are there enough 136 suites? Could this result in a similar situation to people waiting in ambulances outside A&E but instead police cars?...Could this also result in police officers having to do very fast risk assessments in order to not overwhelm 136 suites and A&E?”

Hanna, RITES Committee Lived Experience Expert

“[As a mental health worker and not a police officer], I’m no more equipped than you to protect myself…If you’ve got somebody who is potentially violent or potentially aggressive.”

Daisy, RITES Committee Lived Experience Expert

Meet our Lived Experience Experts

To create our response, we consulted with Lived Experience Experts from our RITES Committee, which informs BIHR’s policy work.

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