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.
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Article 8: Right to a private and family life
This is a qualified right, which includes:
- respect for your sexuality
- the right to make choices for yourself, and the right to have your body and mind respected
- respect for private and confidential information, particularly the storing and sharing of this information (in the UK this is largely covered by the Data Protection Act 2018: see our information on accessing your personal information)
- the right not to be followed or recorded by the government, when the government has no legal right to do so
- the right to have confidential and unlimited communication with others
- the right to control how information about your private life is shared, including photographs that have been taken secretly
- being able to see friends and family
- respect for your home.
It can be limited if it is part of the law, 'necessary in a democratic society' and for one of the following 'legitimate aims':
- in the interests of national security
- in the interest of public safety
- for the economic wellbeing of the country
- for the prevention of disorder or crime
- for the protection of health or morals
- for the protection of the rights and freedoms of others.
The ban on smoking in hospitals is not a breach of Article 8.
Examples
- Jenny was promised that her care home would be her 'home for life' but the council decided to close it down and to move her somewhere else.
- Juan was detained in hospital under section 3. He was not given any information about the section or his right to go to a Tribunal to challenge the decision to keep him in hospital.
- Julie was detained in hospital under section 2. Her neighbour telephoned her doctor to see how she was. The doctor gave her neighbour information about her diagnosis, medication and treatment.
- Jon was not allowed to see his partner while he was in hospital.
These are all possible breaches of Article 8: Right to a private and family life.
Article 9: Freedom of thought, conscience and religion
This is a qualified right which includes:
- the right not to believe in anything
- non-religious beliefs like veganism and pacifism
- the freedom to change your beliefs at any time
- not being forced to believe in something.
It can be limited where it is necessary and fair in order to protect:
- public safety
- public order
- health or morals
- the rights and freedoms of other people.
Examples
- Jada has been told that the only bed available is on a mixed ward and that the only doctor available to give her a medical examination is male. This is against her religion.
- Amy is a voluntary patient in an eating disorder unit. Her treatment plan involves her receiving oral nutritional supplements. She has been a vegan for a number of years, but the unit says that they can only offer non-vegan nutritional supplements.
These could be breaches of Article 9: Freedom of thought, conscience and religion.
Article 10: Freedom of expression
This is a qualified right which lets you hold opinions and express them freely:
- verbally
- in writing
- through television, radio or the internet.
Freedom of expression includes freedom of the media to report court proceedings. However, this freedom may be restricted for health reasons, or if it affects other human rights such as privacy or fair trial.
Proceedings involving people with mental health problems, for example at the Mental Health Tribunal, are usually in private.
Example
Marco is due to have a hearing in the Court of Protection. These normally take place in public, so if it wants to protect Marco's right to privacy the Court of Protection has to make an order for anonymity (an order to stop anyone using details which might identify the parties in a case, such as their name). An order of anonymity might be used if someone involved in a case is particularly vulnerable. The Court has to balance Marco's right to privacy with the media's right to report the information.
Article 12: Right to marry
Article 12 is a qualified right which allows people to marry under English law.
Certain patients who are detained under the Mental Health Act 1983 are not able to get married or enter into a civil partnership.
Article 14: Right not to be discriminated against
This is a limited right which protects you from discrimination on any of the following grounds in the enjoyment of your other human rights:
- sex
- race
- colour
- language
- religion
- political or other opinion
- national or social origin
- other status – this is a very flexible concept and includes disability and mental health problems.
Discrimination under Article 14 is less favourable treatment by the public authority that cannot be objectively and reasonably justified. You can only use this Article if another human rights Article has been engaged.
Example
- Jeanie has been detained under section 3. She is not allowed to smoke while in hospital. She is not allowed to leave the hospital grounds. The ban on smoking in hospitals is not discrimination because it does not engage Article 8: Right to private and family life.
Real life example
New benefits regulations meant that people who were unable to plan a journey because of overwhelming psychological distress were entitled to a lower level of support than those who couldn't plan a journey for other reasons. The court found that the regulations engaged rights under Article 1 Protocol 1 and that people with mental health problems were discriminated against in comparison with people with other health problems in enjoying these rights.
If you feel that you have been discriminated against because of your mental health problem, you would normally use the Equality Act 2010: see our information on discrimination.
Qualified right
A qualified right can only be restricted when certain general conditions are met. This means your individual rights need to be balanced with the interests of the wider community.
An example of this would be the government restricting your right to freedom of expression (Article 10) if you are encouraging racial hatred.
Visit our full listing of Legal TermsMental 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.
Court of Protection
The Court of Protection makes decisions and appoints deputies to act on your behalf if you are unable to make decisions about your personal health, finance or welfare.
See our pages on the Mental Capacity Act for more information.
Visit our full listing of Legal TermsMental 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 TermsLimited right
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 TermsVoluntary patient
Voluntary patients, also known as 'informal patients', are people who are staying in a psychiatric hospital but are not detained under the Mental Health Act. If you are a voluntary patient, you should be able to come and go from the hospital within reason and discharge yourself if you decide to go home.
See our pages on voluntary patients for more information.
Visit our full listing of Legal TermsThis information was published in January 2020. We will revise it in 2023.
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