Mental Health Bill [HL]

Baroness Keeley Excerpts

Committee stage
Monday 24th February 2025 Lords Chamber

Moved by

[Baroness Keeley]

149: After Clause 50, insert the following new Clause—
“Human Rights Act 1998: provision of treatment for a mental disorder as a public function(1) This section applies where—(a) a patient is receiving after-care under section 117 of the Mental Health Act 1983,(b) a patient is accommodated in a hospital for the purpose of being given medical treatment for mental disorder, or(c) a person’s health or social care arrangements in connection with their mental disorder give rise to a deprivation of their liberty, within the meaning of that term as under Article 5(1) of the European Convention on Human Rights.(2) The provider of treatment or care under subsection (1) is to be taken for the purposes of section 6(3)(b) of the Human Rights Act 1998 (acts of public authorities) to be exercising a function of a public nature, if the treatment or care is arranged by or paid for (directly or indirectly, and in whole or in part) by a local authority in England, Wales or Scotland, or by an NHS Health Board, an NHS Integrated Care Board, or by a Health and Social Care Trust.”Member’s explanatory statement
This amendment ensures the Human Rights Act 1998 applies when people receive outsourced mental health treatment or after-care, or are deprived of their liberty in connection with a mental disorder. It addresses a gap in human rights protection exposed by Sammut & Ors v Next Steps Mental Healthcare Ltd & Anor [2024] EWHC 2265 (KB).

[Baroness Keeley (Lab)]

My Lords, I rise to explain the significance of Amendment 149 in my name, which aims to ensure that the Human Rights Act 1998 protects individuals whenever the NHS, local authorities or other state bodies outsource mental health treatment or aftercare to private providers. It also seeks to secure human rights protection whenever people are deprived of their liberty, in connection with mental disorders, by private health or social care providers. I start by saying that I am not in any way a legal expert, so I thank Dr Lucy Series and Professor Luke Clements for raising the need for this amendment. I also thank them for their help in drafting the amendments and providing notes and briefings on the issue, and for working with a number of noble Lords and the Bill team on it. I also thank the noble Baroness, Lady Barker, for her support for the amendment and adding her name to it.

A growing proportion of mental health treatment and most social care is now commissioned from the private sector by the NHS and local authorities, but human rights protection does not necessarily follow. When Parliament enacted the Human Rights Act 1998, it was intended to apply to private organisations delivering public functions on behalf of the state. However, the courts have narrowly interpreted public functions.

In the 2007 case YL v Birmingham City Council, the House of Lords ruled that private care providers, being commercial operators working for profit, were not performing public functions, even when providing state-commissioned and funded care services. That interpretation appears contrary to Parliament’s intent, but it remains legally binding. Parliament partially addressed that issue with Section 145 of the Health and Social Care Act 2008, and later with Section 73 of the Care Act. These provisions state that private care providers commissioned by local authorities under the Care Act 2014 or equivalent legislation in Scotland, Wales and Northern Ireland are performing public functions as defined by the Human Rights Act. This ensured that individuals whose care is arranged by the Care Act are protected by the Human Rights Act, regardless of whether their care is provided directly by the local authority or outsourced to a private provider.

However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd shows that mental health patients and many other users of outsourced health and social care services were still not protected. Mr Sammut had schizophrenia and, after being discharged from hospital, he was placed in a private mental health nursing home, using Section 117 aftercare. He developed constipation, a known complication of the antipsychotic medication he was taking. After his death from bronchopneumonia, large intestinal obstruction and faecal impaction, his family alleged very serious clinical negligence and brought a claim arguing that his human rights were violated. However, their claim was unsuccessful, as the judge held that the Human Rights Act did not apply because Mr Sammut’s care was arranged under Section 117 of the Mental Health Act 1983, not under the Care Act.

This judgment highlights the narrow limitations of the Human Rights Act as a remedy for those using outsourced public services, such as private care provision or mental health treatment. This raises concerns about the human rights protection of thousands of other people who are deprived of their liberty in private health and social care settings in connection with their mental disorders.

This amendment addresses gaps in human rights protection for three groups of people: patients like Mr Sammut receiving mental health aftercare from private providers; any patient receiving in-patient mental health services, whether subject to the Mental Health Act or not; and anybody who is deprived of their liberty in connection with a mental disorder by a private provider of health or social care. It has not been possible in this amendment to include all the other groups whose lack of rights are now exposed by the Sammut case, so it does not include children’s social care, as it is not within the scope of this Bill, or people receiving NHS continuing healthcare or other outsourced health or social care not arranged under the Care Act.

However, the amendment would ensure better protection for people with mental disorders in private care settings. I know that Dr Series and Professor Clements are also working on raising the issues that I just mentioned in relation to other Bills, including the Children’s Wellbeing and Schools Bill, so that they will also ensure human rights protection for those who draw on outsourced treatment, care and support. I commend this simple but important amendment, and I hope it can be supported.

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[Baroness Merron (Lab)]

Yes indeed, I will be pleased to include the noble Lords referred to.

[Baroness Keeley (Lab)]

I am very grateful to all noble Lords who have spoken in the debate today, including the noble Baroness, Lady Barker, who has supported the work we have done on this, my noble friend Lady Chakrabarti and Justice, which I should have mentioned earlier. I am very thankful to the noble Lord, Lord Pannick, and the noble and learned Baroness, Lady Butler-Sloss, for bringing their expertise. I thank my noble friend the Minister for her positive response and I look forward to talking to her more about this and taking forward this amendment. But for now, I beg leave to withdraw.

Amendment 149 withdrawn.