Mental Health Bill [HL]

Baroness Keeley Excerpts

Report stage
Wednesday 2nd April 2025 Lords Chamber

Moved by

[Baroness Keeley]

54: After Clause 51, 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 aftercare 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 a 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, Amendment 54 in my name is the same as the one I tabled in Committee. It 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 by private health or social care providers in connection with mental disorders.

I am grateful to my noble friend the Minister for her comments on this amendment when it was debated in Committee and for all her engagement on the related issues before and since. I am grateful to the noble Baroness, Lady Barker, for her support for this amendment, and to her and other noble Lords who spoke in favour of the amendment in Committee. I am also very grateful to Dr Lucy Series and Professor Luke Clements. They helped with drafting this amendment and provided notes and briefings on the need to close this gap in human rights protection for mental health patients when their care is commissioned from private health and social care providers.

As we noted in Committee, after the 2007 case of YL v Birmingham City Council, Parliament moved to close gaps in human rights protection with Section 145 of the Health and Social Care Act 2008 and, more recently, with Section 73 of the Care Act. The noble Earl, Lord Howe, reminded us in Committee that, as Health Minister, he tabled a government amendment to the Care Bill in 2014 to close the gap in human rights protection.

However, the recent High Court case of Sammut v Next Steps Mental Healthcare Ltd showed that mental health patients and many other users of outsourced health and social care services were still not protected. 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 highlighted the narrow limitations of the Human Rights Act as a remedy for 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.

Amendment 54 addresses these gaps in human rights protection for three groups of people: patients such as Mr Sammut, who are 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 by a private provider of health or social care in connection with a mental disorder. It would ensure better protection for people with mental disorders in private care settings.

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[Baroness in Waiting/Government Whip (Baroness Blake of Leeds) (Lab)]

My Lords, it gives me enormous pleasure to respond to my noble friend Lady Keeley’s amendment. I had not joined the team during Committee, so I was not present at the meeting that everyone has described, but I have read the verbatim report and I express my thanks for the sincerity and the careful, thoughtful way that the arguments have been put forward by all noble Members who took part and those who have spoken today.

I am, of course, aware of the wider strong support for this issue. I am very grateful for the references to the different organisations that have engaged in this. I am also struck by the comments from the noble Baroness, Lady Barker, about reference to other professionals—all those unsung heroes who do not get the recognition they deserve. I think that we all join together to express our gratitude.

I express my condolences to the family of Paul Sammut. As we have discussed, his case has helped bring this to our attention. We recognise the concern around unequal coverage and rights to redress under the Human Rights Act, and the court judgment has highlighted the need to clarify the position of private mental health and care providers under the Human Rights Act when providing mental health-related care arranged and paid for by the NHS and local authorities.

Tonight, I commit that we will return to this issue when the Bill goes to the other place. There, we can have proper discussion and further consideration of some of the issues raised. My noble friend Lady Keeley has raised the issue of the wider implications of this, and I am particularly conscious of the references to children’s services. It is an issue that we have, of course, been discussing with the DfE, which has responsibilities to look at the ramifications for it.

We need to keep working on this, recognising the gap that my noble friend and others have raised in this place, but committing to taking it forward as part of the legislative process. I know that my noble friend the Minister has put a lot of time into this and is thankful for the input. She has graciously offered further meetings on this point as we move forward in the discussions and we look forward to the outcomes in due course.

[Baroness Keeley (Lab)]

My Lords, I am very pleased to hear that Ministers will pick up this issue and hopefully take action to close this gap in human rights protection during the Bill’s passage in the other place. I thank noble Lords, and noble and learned Lords, for their support for this amendment in Committee and today. It has been important that we have that support, as my noble friend Lady Chakrabarti said. I want to thank the Minister. She has done a huge amount of work with us on this amendment and I thank her and my noble friend Lady Blake for agreeing to take action on this important issue of human rights protection. That said, I beg leave to withdraw the amendment.

Amendment 54 withdrawn.