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Human Rights Act

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A brief legal guide to the Human Rights Act, including details of where you can go for further information or support.

Human Rights Act

What are human rights?

Human rights are legal obligations owed by states and public authorities to everyone. This means that governments and public authorities must act in a way that respects human rights. Governments must also pass laws to ensure that individuals respect each other’s human rights. Every human being has human rights regardless of their particular situation or characteristics.

The human rights of people in the UK are legally enforceable through the Human Rights Act 1998 (see below). The Human Rights Act 1998 (HRA) incorporates the rights found in the European Convention on Human Rights into UK law.

The European Convention on Human Rights

The European Convention on Human Rights (ECHR) was adopted in 1950. It contains a total of 18 Articles and six Protocols. The Articles and Protocols most relevant to mental health are discussed in detail below. The European Convention is legally binding on 47 European countries and on the European Union institutions.

The Human Rights Act 1998

Section 1 of the HRA makes the rights contained in the ECHR legally enforceable in the UK. The HRA came into force on 2 October 2000.

Under section 2 of the HRA the UK courts must take into account any relevant decisions of the European Court of Human Rights when considering human rights issues. However, European Court decisions are not legally binding on the UK.

Section 3 of the HRA requires laws to be interpreted as far as possible so as to be compatible with human rights. If a law cannot be interpreted to make it human rights compliant, the courts can make ‘declarations of incompatibility’ (section 4 of the HRA). These declarations are statements that a law is not compatible with human rights. Judges in the UK cannot overturn primary legislation if they find that it is not human rights compliant, although they can overturn secondary legislation.

If a declaration of incompatibility is made, the Government can then decide whether to amend the legislation in order to make it compatible with human rights. There is a special Parliamentary procedure for amending legislation declared incompatible under the HRA (section 10 and schedule 2).

How human rights work

Human rights principles have a long tradition in UK law, dating back to the Magna Carta of 1215 and the Bill of Rights of 1689. Rights such as the right to liberty, the right to a fair trial and the prohibition against torture and slavery, have long been recognised in UK law. The HRA codifies these rights and puts them into an accessible framework.

Human rights law has developed some concepts and rules that are different from traditional legal principles. These are discussed below.

Public authorities

Human rights claims can only be brought against public authorities or bodies exercising public functions. All public authorities or bodies exercising public functions must act compatibly with human rights in everything that they do.

People and bodies that exercise public functions include:

  • The police
  • NHS employees
  • Local authorities and their employees
  • Nursing and personal care accommodation providers (only those that are designated under section 145 of the Health and Social Care Act 2008 are deemed to be public authorities. A care home will fall under section 145 if it is providing accommodation together with nursing or personal case to a person paid for out of public funds. Those that do not meet this definition are not deemed to be exercising public functions and so are not governed by the HRA)
  • Prison staff
  • Courts and tribunals, including Mental Health Review Tribunals
  • Government departments and their employees
  • Statutory bodies and their employees (for example, the Office of Fair Trading or the Information Commissioner’s Office).

If a public body does not act compatibly with human rights, individuals who are adversely affected as a result can challenge the way that the public body is acting by raising a complaint or bringing a claim in the courts.

Individuals cannot bring human rights claims against other individuals or private companies (such as employers).

Absolute and qualified rights

Some human rights are absolute. This means that they cannot be interfered with under any circumstance or for any reason. Article 6 (the right to a fair trial) is an example of an absolute right.

Other rights are qualified. This means that they can be interfered with in certain circumstances and for specific reasons. For example, the right to liberty under Article 5 is a qualified right. A person can be detained by the state for a number of lawful reasons (for example, a prison sentence following conviction or for the treatment of a mental disorder under the MHA 1983), even though this interferes with their right to liberty.

Where a right is qualified the state can only interfere with it if the interference is in accordance with the law and proportionate. Detention on mental health grounds is a lawful interference with a person’s right to liberty, as long as it is done in accordance with the Mental Health Act 1983 and is proportionate.

Proportionality

Rights that are qualified can be interfered with in a proportionate way. An action is proportionate if it is appropriate and not excessive in the circumstances. For example, if a care home decided to install CCTV in the bedrooms of all residents this would interfere with the residents’ right to a private life under Article 8 ECHR (see below). This blanket approach might be a disproportionate interference with the residents’ human rights. If the care home instead decided to only place CCTV in the rooms of residents who posed a risk to themselves and/or others, this is likely to be a proportionate interference with those residents’ human rights.

Positive obligations

Some human rights simply require the state to refrain from doing something. For example, under Article 12 the state must not prevent an adult man and woman from marrying if they have the capacity to do so.

Other human rights require the state to take positive action to protect them. The right to life under Article 2 is an example of this: not only does the state have to refrain from unlawfully taking the life of any of its citizens, it also has to put systems in place to protect life (for example, by ensuring effective policing) and take action to protect life where a particular person is in real and immediate danger (for example where a person at risk of suicide is receiving treatment in a hospital, the state must put in place safeguards to prevent that person from taking their own life: see Article 2 ECHR below).

Some human rights also have an investigative obligation attached to them. This means that where a right may have been violated the state is obliged to investigate how and why this happened. Under Article 2, for example, the state must hold an investigation (usually in the form of an inquest) into deaths that occur when someone is detained by the state (for example in hospital or in prison).

Are other international human rights treaties legally binding?

The ECHR is a ‘living instrument’. This means that it can develop over time to keep pace with social change. It also means that judges can look at other international human rights treaties that have been signed and ratified by the UK to assist them in the interpretation of human rights. For example, judges may consider the UN Convention on the Rights of Person’s with Disabilities when interpreting the meaning of disability discrimination under Article 14 (see below). International treaties are not legally binding on the UK unless they have been incorporated into domestic law, this means that they cannot impose extra duties and obligations on the state than those that already exist in domestic law. The UN Convention on the Rights of Person’s with Disabilities has been signed and ratified by the UK.

Bringing a human rights claim

If a person thinks that a public body has violated their human rights they have 12 months from the date of the alleged violation to bring a legal challenge. This legal challenge can be in the form of a stand-alone human rights claim. Stand-alone human rights claims are heard in the Administrative Court, a division of the High Court of Justice.

If a person is already involved in legal proceedings against a public body (for example, a negligence claim) then they can add a human rights claim to those proceedings. Such a claim must be added within 12 months of the date of the alleged human rights violation.

Finally, a person can bring a human rights claim as part of a judicial review challenge. Judicial review is a way of challenging decisions made by public authorities on the basis that they are unlawful, irrational, unfair or disproportionate. A person challenging a public authority decision by way of judicial review can also claim that the decision violated their human rights. Judicial review claims must be brought as soon as possible, and no later than three months after the date of the decision under challenge. This is a strict deadline and it is difficult, although not impossible, to get an extension. Judicial review claims are heard in the Administrative Court, a division of the High Court of Justice.

Legal aid is available for judicial review and human rights claims if the eligibility criteria are met. The eligibility criteria are based on the financial position of the claimant and the merits of the case.

Remedies for human rights violations

The HRA requires that anyone who is adversely affected by a human rights violation at the hands of the state must be provided with a remedy that is necessary, just and appropriate (section 8 HRA). Remedies for human rights violations may include financial compensation or any of the traditional judicial review remedies. This means that the courts can declare that a public body has acted unlawfully and make an order directing what needs to be done.  

The European Court of Human Rights

The ECHR is supervised by the European Court of Human Rights that sits in Strasbourg. The European Court was established in 1959. Individuals can bring human rights cases to the European Court when they have exhausted all of the legal remedies in their own country. In the UK, this means that cases can only go to the European Court when they have been heard by the Supreme Court or if permission to appeal is refused by a lower court and the case can go no further as a result. When someone has exhausted the legal remedies available in the UK, they can apply for permission to have their case heard by the European Court.

Decisions of the European Court are not legally binding on the UK but under the Human Rights Act 1998 the UK courts have to take into consideration relevant European Court decisions when considering a human rights issue.

Asserting human rights outside the courtroom

Public bodies must act compatibly with human rights at all times. This means that individuals can raise human rights concerns with a public authority at any time. For example, if an NHS Trust decides to move someone from a care home where they have lived for a number of years it may be an unlawful interference with that person’s right to a private life under Article 8 ECHR. The individual, her family or her representatives can raise their concerns about her Article 8 ECHR rights with the NHS Trust at any time.

Human Rights relevant to mental health

Article 2: The right to life

Everyone's right to life shall be protected by law. No one shall be deprived of his life intentionally save in the execution of a sentence of a court following his conviction of a crime for which this penalty is provided by law.

Deprivation of life shall not be regarded as inflicted in contravention of this article when it results from the use of force which is no more than absolutely necessary:

(a) in defence of any person from unlawful violence;

(b) in order to effect a lawful arrest or to prevent escape of a person lawfully detained;

(c) in action lawfully taken for the purpose of quelling a riot or insurrection.

Summary: Article 2 protects the right to life. Many legal cases have interpreted the meaning of the right to life and it is now accepted that it has three core elements:

  1. The state must not take a person’s life unless it is absolutely necessary to protect someone from unlawful violence, to prevent someone escaping from detention or to stop a riot.
  2. The state must protect the lives of its citizens by putting effective systems into place, such as effective policing.
  3. The state must protect individuals who are at a real and immediate risk of death.

Article 2 requires the state to protect the right to life; to refrain from intentionally killing anyone and to effectively investigate all deaths caused by the state or occurring in state detention. This includes cases of suicide in state detention. Those in state detention include people in prison, in immigration detention, in police custody or in hospital.

The duty to protect life applies to both formal and informal patients in hospital. The duty arises where a person is at a real and immediate risk of self-harm or suicide.

The duties that arise under Article 2 are over and above a doctor’s ordinary duty of care towards a patient. It is possible that a doctor will have been found to be negligent but that Article 2 has not been breached.

What does this mean in practice? Detaining authorities (such as hospitals) must ensure, for example, that those at who have been assessed as presenting a risk of suicide or self-harm do not have access to open ligature points in their rooms, that windows are secured, that they are not easily able to leave the building and that crisis rooms are on the lower floors of the building.

Where the right to life has been violated the state is under an obligation under Article 2 to hold an effective and independent investigation. Such investigations usually take the form of inquests.

If there are circumstances that could amount to a breach of Article 2 ECHR, you should seek legal advice as soon as possible.

Article 3: The prohibition of torture and inhuman or degrading treatment or punishment

No one shall be subjected to torture or to inhuman or degrading treatment or punishment.

Summary: Article 3 ECHR makes it unlawful for the state to subject anyone to treatment that amounts to torture or to allow anyone to endure conditions that are inhuman or degrading.

A situation has to be very serious before it will amount to inhuman or degrading treatment. Where a situation is not serious enough to violate Article 3, it may violate Article 8 (the right to a private and family life, see further below).

  • Treatment will be considered inhuman when it causes intense physical or mental suffering
  • Treatment will be degrading if it humiliates and debases a person
  • Torture includes any act that is used deliberately to cause serious and cruel suffering.

If there is evidence to show that an act of the state or a state agent amounts to torture or inhuman or degrading treatment then the state cannot justify its actions in any circumstances.

In the mental health context Article 3 issues are most likely to arise in relation to conditions of treatment and instances of seclusion and restriction in hospitals, police stations or other institutions. This may involve a range of situations including:

  • Physical, emotional or sexual assault of patients by staff
  • Neglect of basic standards of health and safety or hygiene, for example, soiled, unchanged sheets
  • The use of excessive force to restrain patients
  • Leaving trays of food without helping patients to eat when they are too frail to feed themselves.

In the context of medical treatment, where treatment is deemed to be medically necessary by a doctor, it will not violate Article 3 even if it has unpleasant side effects. This is the case for all psychiatric treatment, including electro-convulsive therapy.

Where credible allegations of torture or ill-treatment by public officials arise, the state is under a duty to hold an effective investigation into those allegations. This usually takes the form of an independent inquiry (such as the Winterbourne View Care Home Inquiry in 2011) or a human rights claim in the High Court of Justice.

Article 5: The right to liberty

Everyone has the right to liberty and security of person.

No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law:

(a) the lawful detention of a person after conviction by a competent court;

(b) the lawful arrest or detention of a person for non-compliance with the lawful order of a court or in order to secure the fulfilment of any obligation prescribed by law;

(c) the lawful arrest or detention of a person effected for the purpose of bringing him before the competent legal authority of reasonable suspicion of having committed and offence or when it is reasonably considered necessary to prevent his committing an offence or fleeing after having done so;

(d) the detention of a minor by lawful order for the purpose of educational supervision or his lawful detention for the purpose of bringing him before the competent legal authority;

(e) the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts, or vagrants;

(f) the lawful arrest or detention of a person to prevent his effecting an unauthorized entry into the country or of a person against whom action is being taken with a view to deportation or extradition.

Everyone who is arrested shall be informed promptly, in a language which he understands, of the reasons for his arrest and the charge against him.

Everyone arrested or detained in accordance with the provisions of paragraph 1(c) of this article shall be brought promptly before a judge or other officer authorized by law to exercise judicial power and shall be entitled to trial within a reasonable time or to release pending trial. Release may be conditioned by guarantees to appear for trial.

Everyone who is deprived of his liberty by arrest or detention shall be entitled to take proceedings by which the lawfulness of his detention shall be decided speedily by a court and his release ordered if the detention is not lawful.

Everyone who has been the victim of arrest or detention in contravention of the provisions of this article shall have an enforceable right to compensation.

Summary: Article 5 ECHR protects the right to liberty. A person must not be deprived of their liberty unless for the purposes of arrest, lawful detention, trial, immigration control or treatment for a mental disorder. If a person is deprived of their liberty they must be able to challenge the lawfulness of their detention before a court or tribunal. If the deprivation of a person’s liberty is found to be unlawful, that person will have a right to financial compensation. In the mental health context, a person who is detained under the Mental Health Act 1983 following the proper procedures will not have had their right to liberty under Article 5 violated.

Article 5 protects the right to liberty. This is not the right to do what you want, it is the right not to be deprived of your liberty unlawfully. It is a qualified right, which means that it can be curtailed in specific circumstances (including for treatment of a mental disorder or for a prison sentence following a criminal conviction).

In the mental health context questions of deprivation of liberty under Article 5 may arise in the following circumstances:

  • Delays in reviewing detention before the Mental Health Review Tribunal or Court of Protection: If a person is detained they must have access to a court to challenge the lawfulness of their detention. If a person is detained under the MHA 1983 the Mental Health Review Tribunal performs this function. If a person is detained under the Mental Capacity Act 2005 the Court of Protection performs this function. If a court finds that a person’s detention is/was unlawful, that person will have an enforceable right to compensation. Where there is a long delay before a person can have their detention reviewed by a Mental Health Review Tribunal this may amount to a violation of their rights under Article 5 ECHR.
  • Detention that does not comply with the procedures under the Mental Capacity Act 2005: In the UK, if a mental health professional decides that it is in someone’s best interests to have their liberty restricted they must seek authorisation before they proceed, in accordance with the Deprivation of Liberty Safeguards. These Safeguards are a procedure established under the Mental Capacity Act 2005 designed to ensure that those who lack mental capacity do not have their right to liberty unlawfully interfered with. Failure to comply with the Safeguards may render the detention unlawful.
  • Detention that does not comply with the procedures under the Mental Health Act 1983: Where someone’s detention does not comply with the formal requirements of the MHA 1983 it may be unlawful (for example, if the nearest relative has objected to the detention but it has gone ahead regardless or if no efforts have been made to contact the nearest relative).
  • Delays in releasing patients once they have been discharged or once the criteria for their detention no longer exists: Once a person no longer meets the criteria for detention they must be released. Failure to release a person (for example while waiting for community treatment services to be put in place) is a violation of the right to liberty.
  • People who are not formally detained but who are so restricted that it amounts to a deprivation of their liberty: The courts will look at a range of factors to determine whether a person has been deprived of their liberty. These factors include the effects of the measure on the person in question and the how long it lasts. It may be the case that even though a person is not formally detained their freedom is so restricted that it amounts to a deprivation of liberty under Article 5. Conversely, it may be that although a person is formally detained, they can leave their place of detention for long periods of time and are therefore not deprived of their liberty for the purposes of Article 5.
  • Excessive restraint of patients: If a patient is excessively restrained, for example if they are tied to a bed or chair for a long period of time, this may amount to an unlawful deprivation of their liberty.

Article 6: The right to a fair hearing

In the determination of his civil rights and obligations or of any criminal charge against him, everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal established by law. Judgement shall be pronounced publicly by the press and public may be excluded from all or part of the trial in the interest of morals, public order or national security in a democratic society, where the interests of juveniles or the protection of the private life of the parties so require, or the extent strictly necessary in the opinion of the court in special circumstances where publicity would prejudice the interests of justice.

Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law.

Everyone charged with a criminal offence has the following minimum rights:

(a) to be informed promptly, in a language which he understands and in detail, of the nature and cause of the accusation against him;

(b) to have adequate time and the facilities for the preparation of his defence;

(c) to defend himself in person or through legal assistance of his own choosing or, if he has not sufficient means to pay for legal assistance, to be given it free when the interests of justice so require;

(d) to examine or have examined witnesses against him and to obtain the attendance and examination of witnesses on his behalf under the same conditions as witnesses against him;

(e) to have the free assistance of an interpreter if he cannot understand or speak the language used in court.

Summary: Article 6 guarantees the right to a fair hearing in both civil and criminal proceedings. Article 6 requires that courts and tribunals must be independent and impartial and that those bringing a legal claim should have access to the courts within a reasonable time. Article 6 recognises that in order to have a fair hearing some legal proceedings may need to be held in private.

The rights under Article 6 apply to Mental Health Tribunals, family courts, the Administrative Court and the Court of Protection. Article 6 is an absolute right, which means it cannot be interfered with under any circumstance. The following rights are guaranteed by Article 6:

  • The right to an independent and impartial tribunal
  • The right to be given notice of the time and place of a hearing
  • The right to present a case, either in person or through an advocate, before a decision is made
  • The right to have documents in the proceedings disclosed. This does not create a right to see all documents. For example, where a patient is being covertly medicated this may not need to be disclosed to the patient unless it would prevent them from effectively challenging their detention
  • The right to have a hearing within a reasonable time
  • The right to be given reasons for a decision so that the decision can be understood.

Ordinarily Article 6 requires that hearings are in public. However mental health review tribunal cases are usually held in private unless the Tribunal considers that it is in the interests of justice for them to be heard in public (Tribunal Procedure Rules 2008, rule 38). When considering whether to allow a hearing to take place in public, the tribunal must consider the following factors:

  • Is it consistent with the wishes of the applicant (assuming she is competent to make an informed choice?)
  • Will it have an adverse effect on the applicant’s mental health in the short or long term?
  • Are there any special factors for or against a public hearing?
  • Can practical arrangements be made for an open hearing without disproportionate burden on the authority?

Article 8: The right to a private and family life

(1) Everyone has the right to respect for his private and family life, his home and his correspondence.

(2) There shall be no interference by a public authority with the exercise of this right except such as is in accordance with the law and is necessary in a democratic society in the interests of national security, public safety or the economic well-being of the country, for the prevention of disorder or crime, for the protection of health or morals, or for the protection of the rights and freedoms of others.

Summary: Article 8 protects the right to a private and family life. The right to a private life includes a person’s physical and moral integrity. The state may only interfere with a person’s private or family life for specific reasons (listed in Article 8(2) below), including for the protection of a person’s health. Any interference with a person’s rights under Article 8 must be proportionate.

Article 8 is a qualified right that can be restricted for the reasons set out in paragraph (2). The right to a private life encompasses the importance of personal dignity, autonomy and the interactions a person has with other people. Poor treatment that is not sufficiently serious to engage Article 3 (torture, inhuman or degrading treatment) may instead fall within Article 8.

Respect for a person’s private life includes:

  • Respect for individual sexuality
  • The right to personal autonomy and physical and psychological integrity
  • Respect for private and confidential information, particularly the storing and sharing of such information (in the UK this is largely covered by the Data Protection Act 1998)
  • The right not to be subject to unlawful state surveillance
  • The right to have confidential and unlimited communication with others
  • The right to control the dissemination of information about one’s private life, including photographs taken covertly.

Respect for a person’s family life includes respecting relationships between parents, children, siblings, grandparents and partners. The right to a family life will be engaged where the state separates family members (for example by taking children into care, deporting members of a family or detaining someone in hospital).

Many issues arising in the context of mental health may engage Article 8. Below are some examples:

  • Detention in hospital: Being detained under the MHA 1983 is an interference with a person’s private and family life. However, as long as this is done lawfully (in accordance with the requirements of the MHA 1983) the interference will usually be justified as being in the interests of health and/or public safety. A person who is detained in a hospital does not lose all their rights to privacy and a family life but they may be restricted for safety and security reasons. This may mean that family visits can be restricted.
  • Moving care home: If a person has been promised that their care home will be their ‘home for life’ then a decision to move her will engage Article 8. If the move would be seriously anti-therapeutic and emotionally devastating it is likely to violate Article 8. There is no right under Article 8 to be placed in a care home or hospital that is geographically close to a person’s family. This does not mean that people cannot make representations using Article 8 to their NHS trust about the effect on their family life if they are resident in a hospital far from home.
  • Correspondence: Article 8 includes the right to freely correspond with others. However, under section 134 of the MHA 1983 a detained patient may have their outgoing and incoming mail withheld and inspected, for example if it is necessary for the security of the hospital or the health of the patient. If this is done in accordance with the MHA 1983 and is reasonable in the circumstances, Article 8 will not be violated.
  • Disclosing medical information: The disclosure of personal medical information engages Article 8. Article 8 will be violated where the disclosure of medical information to third parties is unnecessary and disproportionate. Under UK law a person’s medical information cannot be disclosed to third parties without the person’s consent, unless they lack capacity and it is in their best interests for the information to be disclosed or if there is an overriding public interest in disclosing the information.
  • Obtaining information: Under Article 8 a person has a right to receive information about their health and treatment. This right is mirrored in Part 2 of the MHA 1983 Code of Practice which lays out the information that must be given to patients, carers and relatives.
  • Forced medical treatment: Involuntary treatment (including force feeding) engages Article 8 and therefore it will only be justified if it is in accordance with the law and proportionate. Forced treatment is sanctioned under the MHA 1983 and the MCA 2005 in the UK but it must nevertheless be shown to be proportionate in the circumstances.
  • Activities in care homes and hospitals: A prohibition on patients smoking in their rooms or in designated smoking areas is not a violation of Article 8, although there may be rare cases where the stability of a person’s mental health requires smoking facilities.
  • Best interests decisions: A finding that a person lacks capacity and subsequent decisions taken in their best interests engages Article 8 as it goes to the heart of the right to exercise personal freedom and choice. If capacity assessments and best interests decisions are done in accordance with the provisions of the MCA 2005 and are necessary, they will be justified on the grounds of health. Where such decisions are not made on a lawful basis, there will be an unlawful interference with a person’s Article 8 ECHR rights.
  • Making complaints to the police: Victims of crime have had their Article 8 rights interfered with. Article 8 imposes a positive obligation on the police to investigate credible reports of crimes and prosecute criminal offences, no matter who is making the complaint.

Article 9: Freedom of thought, conscience and religion

(1) Everyone has the right to freedom of thought, conscience and religion; this right includes freedom to change his religion or belief, and freedom, either alone or in community with others and in public or private, to manifest his religion or belief, in worship, teaching, practice and observance.

(2) Freedom to manifest one's religion or beliefs shall be subject only to such limitations as are prescribed by law and are necessary in a democratic society in the interests of public safety, for the protection of public order, health or morals, or the protection of the rights and freedoms of others.

Summary: Article 9 protects the right to believe in and practice a religion or belief. This right can be interfered with for the reasons listed in paragraph (2) below but any such interference must be proportionate.

Article 9 enshrines:

  • The freedom to exercise religion or belief publicly or privately, alone or with others
  • The freedom to exercise religion or belief in worship, teaching, practice and observance
  • The right to have no religion or to have non-religious beliefs protected (e.g. pacifism or veganism).

Article 9 is a qualified right. It can be interfered with for the reasons set out in paragraph 2. If the state or a public authority makes it practically impossible for a person to practice their religion there will be a violation of Article 9. This might include:

  • Failing to provide a place to worship
  • Providing food that is prohibited by a person’s religion
  • Forcing a person to live on a mixed ward when their religion prohibits this.

In the mental health context Article 9 issues are most likely to arise in the context of detained patients.

Article 10: Freedom of expression

(1) Everyone has the right to freedom of expression. This right shall include freedom to hold opinions and to receive and impart information and ideas without interference by public authority and regardless of frontiers. This article shall not prevent States from requiring the licensing of broadcasting, television or cinema enterprises.

(2) The exercise of these freedoms, since it carries with it duties and responsibilities, may be subject to such formalities, conditions, restrictions or penalties as are prescribed by law and are necessary in a democratic society, in the interests of national security, territorial integrity or public safety, for the prevention of disorder or crime, for the protection of health or morals, for the protection of the reputation or the rights of others, for preventing the disclosure of information received in confidence, or for maintaining the authority and impartiality of the judiciary.

Summary: The right to free expression allows the press and individuals to speak freely, to impart ideas and opinions and to raise legitimate criticism of public figures. Free expression can only be restricted for the reasons listed in paragraph (2) below and any restriction must be proportionate.

Freedom of expression includes freedom of the media to report court proceedings. However, this freedom may be restricted where it is in the interests of health, or other human rights such as privacy or fair trial rights. Proceedings involving those with mental health problems (for example, in the Court of Protection or the Mental Health Review Tribunal) are usually in private (although see above for situations where they may be in public under Article 6). This is deemed to be a lawful and proportionate interference with Article 10.

Article 12: The right to marry

Men and women of marriageable age have the right to marry and to found a family, according to the national laws governing the exercise of this right.

The right to marry is enshrined in Article 12. Those with mental health problems have the same right to marry as everyone else unless they have been assessed as lacking the capacity to consent to marriage. A person is capable of entering into marriage if he or she understands the nature of the contract of marriage and the nature of sexual intercourse and its possible consequences. Detained patients can get married (section 1 of the Marriage Act 1983) unless they are detained under section 2 of the MHA 1983.

Article 12 protects the right of heterosexuals to marry, although detained patients also have the right to enter a civil partnership under domestic law (section 19 of the Civil Partnership Act 2009).

Article 14: The right not to be discriminated against

The enjoyment of the rights and freedoms set forth in this Convention shall be secured without discrimination on any ground such as sex, race, colour, language, religion, political or other opinion, national or social origin, association with a national minority, property, birth or other status.

Summary: Article 14 prohibits discrimination on a number of grounds, including race, gender, religion, disability and nationality.

Article 14 requires that there be no discrimination in the application of human rights. A person must not be discriminated against on any of the grounds (known as “protected characteristics”) listed in Article 14 or on the basis of “other status”. “Other status” includes disability, whether physical or mental.

Discrimination in human rights terms is where a public authority, for no justifiable reason:

  • Treats a person less favourably than others who are in the same situation on the basis of that person’s protected characteristic
  • Fails to treat people differently who are in significantly different situations
  • Applies policies that have a disproportionately adverse effect on individuals or groups who have a protected characteristic.

Not all discrimination is unlawful on human rights grounds but public authorities must be able to put forward weighty and objectively justifiable reasons for any discriminatory policy or practice. For discrimination on the grounds of disability particularly strong reasons are needed to justify it.

The right to non-discrimination is not a stand alone right: it can only be brought in conjunction with another ECHR right. For example, discrimination issues relating to a person’s housing situation can only form the basis of a human rights claim if they fall under Article 1 of Protocol 1 (see below) or Article 8 (see above).

For a more detailed outline of discrimination in UK law the Mind Legal Briefings on discrimination (link to briefings).

Article 1 of Protocol 1: The right to property

Every natural or legal person is entitled to the peaceful enjoyment of his possessions. No one shall be deprived of his possessions except in the public interest and subject to the conditions provided for by law and by the general principles of international law.

The preceding provisions shall not, however, in any way impair the right of a State to enforce such laws as it deems necessary to control the use of property in accordance with the general interest or to secure the payment of taxes or other contributions or penalties.

Summary: Article 1 of Protocol 1 protects the right to property. This includes protection of personal property from interference, loss or destruction by the state.

Article 1 of Protocol 1 to the ECHR manifests itself in two ways. First, people have a right to enjoy their own property and possessions without unlawful state interference. Secondly, people have a right to have benefits paid to them in accordance with national law.

The right to property may be relevant to those with mental health problems in the following situations:

  • Where public sector landlords or local authorities are discriminating against them in relation to housing
  • Where benefits assessments and/or payments are carried out incorrectly or in a discriminatory way
  • Where possessions are lost by state institutions, such as in care homes or hospitals.

Article 2 of Protocol 1: The right to education

No person shall be denied the right to education. In the exercise of any functions which it assumes in relation to education and to teaching, the State shall respect the right of parents to ensure such education and teaching in conformity with their own religions and philosophical convictions.

Summary: Article 2 of Protocol 1 protects the right to education and ensures that children of school age have access to education and teaching.

Article 2 of Protocol 1 protects the right to education. This includes the right to access education institutions and to obtain official recognition when studies have been completed.

The right to education is particularly relevant for children and young people with mental health problems. No child or young person below the school leaving age should be denied access to education merely because they are receiving medical treatment for a mental disorder (see also MHA 1983 Code of Practice 36.77).

Under Part 6 the Equality Act 2010 those in education must not be discriminated against on the grounds of disability (see Mind Legal Briefing “Discrimination in Education”) (link to briefing)

Article 3 of Protocol 1: The right to vote

The High Contracting Parties undertake to hold free elections at reasonable intervals by secret ballot, under conditions which will ensure the free expression of the opinion of the people in the choice of the legislature.

Summary: Article 3 of Protocol 1 protects the right to vote in free elections by way of secret ballot. This right is available to all adult nationals unless they are serving a prison sentence.

The right to vote is enshrined by Article 3 of Protocol 1 to the ECHR. Those with mental health problems or those detained under the MHA 1983 have the right to vote.

Further information

You can find out more about Mind’s Legal Unit on our website, along with details on the kinds of cases that Mind might be able to assist with in our casework criteria. 

For general advice about mental health and human rights, please email the Mind Legal Advice Service or call 0300 466 6463.

For more detailed advice on any of the issues discussed in this briefing, please consult a solicitor specialising in human rights law.

Useful contacts

The Law Society 
www.lawsociety.org.uk 
0870 606 2555

Community Legal Advice
www.communitylegaladvice.org.uk
0845 345 4345

The Equality and Human Rights Commission  www.equalityhumanrights.com

The Equality and Advisory Support Service         www.equalityadvisoryservice.com 
Telephone: 0800 444 205;
Textphone: 0899 444 206; 
Monday to Friday 9am-8pm; Saturday 10am-2pm. 
Text users can dial 0800 444 206 adn Skype video BSL calls can access the helpline via the Royal Association for Deaf People. Details are on the website at www.radlegalservices.org.uk

The Disability Law Service
www.dls.org.uk
Email: advice@dls.org.uk
Tel: 020 7791 9800

Liberty provide human rights advice by telephone and in writing
Web: www.liberty-human-rights.org.uk/index.php
Tel: 0845 123 2307 
Tel: 020 3145 0461
Lines are open Monday and Thursday 6.30pm - 8.30pm, Wednesday 12.30pm - 2.30pm
Written advice can be obtained by submitting a query form:www.yourrights.org.uk/get-advice/contact-us.html

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