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.

Terms you need to know

 

Term Meaning
Absolute right

Absolute human rights cannot be taken away under any circumstances or for any reason. The right to a fair trial (Article 6) is an example of an absolute right.

Article

Each human right is referred to as a separate article in the Human Rights Act 1998, for example, Article 2: Right to life. These articles come from the European Convention on Human Rights.

Capacity

'Capacity' means the ability to understand information and make decisions about your life. Sometimes it can also mean the ability to communicate decisions about your life.

If you do not understand the information and are unable to make a decision about your care, for example, you are said to lack capacity.

Claim

‘Bringing a claim’ means going to court to try to put right a breach of your legal rights, for example your human rights.

You can also bring a claim in other areas of law.

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.

Declaration of incompatibility

A court can make a declaration of incompatibility if it finds that a particular law has not obeyed the Human Rights Act 1998. The government then looks at the law and decides whether it should be changed.

Human Rights Act 1998 (HRA)

This is a law that the government has brought in to protect our human rights in the UK.

Informal patient (also known as voluntary patient)

These are people who are staying in a psychiatric hospital but are not detained under the Mental Health Act. They should be able to come and go from the hospital within reason and are able to discharge themselves if they decide to go home.

Limited 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.

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 illness and need treatment. You can only be kept in hospital if certain conditions are met.

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 and can decide about suitable aftercare and make recommendations about matters such as hospital leave, transfer to another hospital, guardianship and community treatment orders.

The court is made of a panel, which normally includes:

  • a legally qualified chairperson
  • a ‘lay person’ 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.
Nearest relative

This 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 the 'nearest relative'. This can sometimes be changed.

See our information on the nearest relative.

Proportionate

Some human rights can be restricted. If they are restricted, it must be done in a ‘proportionate’ way. This means that it is appropriate and not excessive in the circumstances.

Public authorities

These are organisations whose role is of a public nature. This includes:
• Police
• 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)

Public functions

This means an act or activity taken by a public authority which is not a service. A public authority carries out a public function when it performs its particular legal duties and powers. Examples of public functions are licensing, planning and enforcement of parking.

Public authorities can get private companies or voluntary organisations to carry out their public functions. So for example, a private company that run prisons and takes prisoners into custody would be considered a private company carrying out a public function.

Qualified right

This means that these rights 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.

Responsible clinician

This is the mental health professional in charge of your care and treatment while you are sectioned under the Mental Health Act.

Second Opinion Appointed Doctor (SOAD)



This is a doctor who is called for a second opinion to decide whether they agree with your treatment if you are detained under the Mental Health Act 1983.

The Mental Health Act sets out when the hospital should get a second opinion.

Section

In this guide, 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 information on sectioning.

 


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


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