Human Rights & Independent Care

A human rights protection loophole was recently exposed in the legal case of a man called Paul (known as Sammut v Next Steps).

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.

This prompted Baroness Keeley to suggest an amendment (change) to the Mental Health Bill to include a clause that said that human rights protections apply when people receive outsourced mental health treatment or aftercare or are deprived of their liberty in connection with mental health care.

The UK Government said it agreed that the loophole needed to be closed and they wanted to put forward their own amendment when the Bill reached the House of Commons. You can read more about how laws get made in our explainer. Baroness Keeley therefore withdrew her amendment.

The UK Government published its own amendment on Wednesday 4th June. We welcomed the amendment as a positive step but noted that it includes fewer protections than the original amendment from Baroness Keeley.

Baroness Keeley's amendment would have confirmed human rights protections for everybody detained in hospital for mental health care and everybody who is deprived of their liberty as part of their mental health care arrangements.

The UK Government's amendment only confirms that registered care providers have human rights duties if they're delivering inpatient hospital care funded or arranged by the NHS, under Section 25 of the Mental Health Care and Treatment (Scotland) Act and under Section 117 of the Mental Health Act (the law applied in Paul's case).

We created a joint briefing together with the National Care Forum, which brings together more than 170 of the UK’s leading not-for-profit care and support organisations.

In this briefing, we explained that many frontline care providers support closing the loophole and ensuring equal human rights protections for everyone accessing care services. As we often hear from participants in our human rights training programmes, the Human Rights Act is a useful tool for people delivering services and the law should be as clear and consistent as possible to ensure better outcomes for both people accessing services and those working in them. 

We told the government and parliamentarians, "care providers do not alter their care based on the law or funding model used to arrange someone’s care. To do so would be both unethical and nonsensical – not least because many people transition between private and State funding during their time accessing services. It therefore would not be an additional burden on care providers to embed equal protections in the law and many care providers support this approach." 

We continued our work to support closing the loophole by submitting joint evidence to the Mental Health Bill Committee (the group of MPs responsible for examining the Bill line-by-line).

We spoke to care providers from across the UK as well as user-led organisations to make sure their voices were amplified. Our evidence submission includes quotes from Scottish Care, Human Rights Consortium Scotland and Care Rights UK, all voicing their support for making sure people have equal access to their human rights protections.

The amendment was accepted by the Bill Committee, which means it will now be voted on by MPs before the Bill becomes law.