Human Rights Act 1998
A general guide to the Human Rights Act, with information about your human rights and what you can do if someone doesn't respect them.
This is sometimes said to be an absolute right. However, it will not be a breach of a person's right to life if the state uses necessary force, for example:
- to protect someone from unlawful violence
- to prevent someone escaping from detention
- to stop a riot.
Public authorities must also take reasonable steps to protect your life.
- Ellie is detained in a psychiatric hospital because there was a risk that she would take her own life or harm herself. The hospital has a duty to protect Ellie's life, which includes making sure:
- there are no areas in her room which could easily support a noose
- the windows are secured
- she is not easily able to leave the building
- crisis rooms are on the lower floors of the building.
This duty also applies to people who are informal patients.
- Melanie was an informal patient in a psychiatric hospital after attempting to take her own life. She was given home leave even though she was still unwell. She took her own life while on home leave and her parents brought a case. The court found that the hospital had failed in its duty to protect their daughter under Article 2.
If there has been a death involving public authorities, an independent investigation must be held, which is usually an inquest.
This is an absolute right. A situation has to be very serious before it will be seen as inhuman or degrading treatment. This will depend on the circumstances of your situation, for example: age, health and how long you've been treated this way.
Richard is detained under section 3 of the Mental Health Act 1983 because he has schizophrenia. His doctor thinks it is necessary for him to take antipsychotics which give him very unpleasant side effects. An independent psychiatrist (also known as a SOAD) has been to visit him and has agreed to the treatment plan. This would not breach Article 3.
Restraint will generally not be seen as torture and ill-treatment unless too much force is used, or it is used to limit your movement in a way other than to protect or prevent further damage.
Elspeth was strapped into a wheelchair for long periods of time to prevent her wandering off and leaving the hospital. She was very distressed and the nurses were informed that this could be degrading treatment.
Joan lives in a care home. She is unable to get out of bed. The staff do not change her bedding regularly so they are soiled.
She is unable to lift herself up and the staff leave trays of food without helping her to eat.
These may be possible breaches of Article 3: Prohibition of torture and inhuman or degrading treatment.
This is a limited right. You have a right to move around as you want and not be locked in a room or building. However, this right can sometimes be limited by the law, for example if a person is arrested or detained on mental health grounds.
If you are not free to leave, and you are under continuous control and supervision, then you are likely deprived of your liberty (i.e. your right to liberty has been limited).
If this happens:
- it must be done lawfully; and
- there must be safeguards so you can challenge whether it is lawful or not to deprive you of your liberty.
For example, a safeguard for when you are sectioned under the Mental Health Act is being able to apply to the Mental Health Tribunal (MHT) to challenge your detention.
Even if you are arrested or detained on mental health grounds, you still have the following rights:
What are your rights if your liberty is taken away (for example if you are sectioned)?
You can go to court to challenge whether or not the decision was lawful. So if you are detained under the Mental Health Act 1983, you can ask the Mental Health Tribunal to look at whether your detention was fair.
For more information about this, you should contact your advocate or find a solicitor. See Useful contacts for more information.
What are your rights if you are arrested?
You must be given the reasons why in a language that you can understand.
What are your rights if you are arrested or detained on suspicion of committing an offence?
You are entitled to be brought in front of a judge promptly.
- Jason applied for a Mental Health Tribunal whilst on a section 3 of the Mental Health Act 1983. Tribunals normally take place 8 weeks after an application is made, but Jason's case was not heard for 20 weeks after he applied.
- Jessica was detained on section 3 despite her father, who was acting as her nearest relative, having objected to it.
- John was discharged from his section by a Tribunal but there were very long delays in returning him to the community because accommodation could not be found.
These could all amount to breaches of Article 5: Right to liberty and security.
This is an absolute right. To be considered fair, a hearing should address the following:
- Independent and impartial: The hearing must be fair and free from bias.
- Notice: You must be given notice of the time and place of a hearing.
- Public or private hearings: Hearings are normally in public but can be in private for many reasons. Mental Health Tribunal are normally held in private.
- As soon as practicable: The hearing should take place as soon as is practicable.
- Representation: If your hearing is at the Tribunal, you can present your case either by yourself, with an advocate or a specialist legal adviser. You can normally get legal representation for free. See Useful contacts for more information.
- Right to see documents: You have a right to see all the documents in the proceedings. This doesn't necessarily mean you can see all documents related to you – only those that assist you in effectively challenging your detention. For example, if you are being medicated without your knowledge because the doctor thinks it is for your own health and safety, you may not see documents related to this, as it would be bad for your health. You may only be able to see them if you needed to in order to effectively challenge your detention.
- Reasons for decision: You have a right to be given reasons for a decision so that you can understand why the decision was made.
- Jean was transferred to a psychiatric home and the Local Authority went to the Court of Protection for an order to keep her there without consulting her or her family. This could be a breach of Article 6: Right to a fair trial.
- A doctor who was working on a Tribunal went to see a patient before the hearing. However, he also worked as a responsible clinician for a different hospital in the same trust. This is not a breach of Article 6: Right to a fair trial.
These are organisations whose role is of a public nature. This includes:
- NHS hospitals and employees
- local authorities and their employees
- some nursing and personal care accommodation providers
- prison staff
- courts and tribunals, including Mental Health Tribunals
- government departments and their employees
- statutory bodies and their employees (for example the Information Commissioner’s Office).
Mental Health Act 1983 (MHA)
This is a law that applies to England and Wales which allows people to be detained in hospital (sectioned) if they have a mental health disorder and need treatment. You can only be kept in hospital if certain conditions are met.
See our pages on the Mental Health Act for more information.Visit our full listing of Legal Terms
Second Opinion Appointed Doctor (SOAD)
This is an independent doctor appointed by the Care Quality Commission in England or by the Healthcare Inspectorate Wales. You need his or her approval to be given or continue to be given certain forms of medical treatment under the Mental Health Act 1983.
See our pages on consent to treatment for more information.Visit our full listing of Legal Terms
Limited human rights can be restricted for specific reasons. Human rights can only be restricted if it is proportionate – that is, it must be for a fair and valid reason.
For example, the right to liberty (Article 5) is a limited right. A person can be detained by the state for many lawful reasons including prison, mental health grounds and other reasons listed in the Article.Visit our full listing of Legal Terms
Mental Health Tribunal (MHT)
This is a special court that deals with cases relating to the Mental Health Act 1983. The Tribunal decides whether you can be discharged from your section. It can sometimes make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders (CTOs).
The court is made of a panel, which normally includes:
- a legally qualified chairperson
- a ‘lay member’ who has appropriate experience and qualifications in the area of mental health
- an independent psychiatrist, who will speak to you and examine you before the tribunal hearing in certain circumstances, and when you request to see them
Where you see a reference to the Mental Health Tribunal in this guide, it means:
- First Tier Tribunal (Mental Health), if you live in England, or
- Mental Health Review Tribunal for Wales, if you live in Wales.
The nearest relative is a family member who has certain responsibilities and powers if you are detained in hospital under the Mental Health Act. These include the right to information and to discharge in some situations.
The law sets out a list to decide who will be your nearest relative. This can sometimes be changed.
See our pages on the nearest relative for more information.Visit our full listing of Legal Terms
Responsible clinician (RC)
Certain decisions, such as applying for someone who is sectioned to go onto a community treatment order (CTO), can only be taken by the responsible clinician.
All responsible clinicians must be approved clinicians. They do not have to be a doctor, but in practice many of them are.Visit our full listing of Legal Terms
Being 'sectioned' means that you are kept in hospital under the Mental Health Act. There are different types of sections, each with different rules to keep you in hospital. The length of time that you can be kept in hospital depends on which section you are detained under.
See our pages on sectioning for more information.Visit our full listing of Legal Terms
This information was published in January 2020. We will revise it in 2023.
References are available on request. If you would like to reproduce any of this information, see our page on permissions and licensing.