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. Applies to England and Wales.

Articles 2, 3, 5, 6

Article 2: Right to life

This is an absolute right. Public authorities must take reasonable steps to protect your life. They cannot take a person’s life unless it is absolutely necessary, for example:

  • to protect someone from unlawful violence
  • to prevent someone escaping from detention
  • to stop a riot.

Examples

  • 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, they must hold an independent investigation, which is usually an inquest.

Example

Jane died while detained under section 3 of the Mental Health Act 1983. This meant that there had to be a coroner’s inquest so that the inquiry was independent of the hospital.

Article 3: Prohibition of torture and inhuman or degrading treatment

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.

Example

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.

Example

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.

The government must make an independent investigation if there are allegations of abuse by people working in public authorities. An example of this was the Winterbourne Inquiry.

Example

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.

Both are examples of possible breaches of Article 3: Prohibition of torture and inhuman or degrading treatment.

 

Article 5: Right to liberty and security

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 these rights:

If... What are your rights?

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.

you are arrested

You must be given the reasons why in a language that you can understand.

you are arrested or detained on suspicion of committing an offence

You are entitled to be brought in front of a judge promptly.

Examples

  • Jason applied for a Mental Health Tribunal whilst on a section 3. 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.

 

Article 6: Right to a fair trial

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 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.

Examples

  • 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.

 


This information was published in August 2017. We will revise it in 2019.


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