What rights
do I have?
There are 16 rights in the Human Rights Act.
The rights in the Human Rights Act are called 'Articles'. In this section we will explain some of your human rights.
These are the ones which will usually be important in health and care services that you may use:
Right to liberty
This right is protected by Article 5 in the Human Rights Act.
1) How is my right relevant in health and social care settings?
Examples include:
- Public officials using excessive restraint for long periods.
- An inappropriate place being used to detain you, such as a prison even though you haven’t been ordered there by court, because there isn’t any room in mental health hospitals.
- Significant delays or cancellation of hearings allowing you to challenge your detention.
- Being told you are not allowed to leave or being physically prevented from leaving a place (like a care home or hospital) when you are not formally detained under the Mental Health Act, or have not had your deprivation of liberty authorised under the Mental Capacity Act.
2) Can my right be restricted by health and social care services?
Yes, your right to liberty can be limited where necessary, for example:
- If you have been detained under the Mental Health Act. Your detention must be justified by the authority detaining you because you have a specific and recognised mental disorder and your detention must be necessary for your health or safety, or for the protection of others.
- If you have been assessed as lacking capacity to consent to treatment for a mental health issue or to make a decision about leaving a care arrangement, and there is a concern about your safety or wellbeing. Restricting your liberty may be necessary but there is a formal process that needs to be followed by those providing your care, called a ‘Deprivation of Liberty Authorisation’.
The ‘Deprivation of Liberty Safeguards’ (DoLS) are part of the Mental Capacity Act. This law was created because there were concerns that some adults with mental capacity issues were not having their human rights protected.
DoLS are intended to offer safeguards to ensure you don’t have your freedom restricted more than is absolutely necessary in hospitals and care homes.
Public officials wanting to put a DoLS authorisation in place have a duty to do this in a way that respects your human rights.
3) What duties do public officials have about my right to liberty?
To RESPECT your right
This means not placing extreme restrictions on your movement (for example, being locked in a room or being strapped to a chair) unless it is absolutely necessary and can be justified (as explained above).
To PROTECT your right
There are lots of safeguards which apply if your right to liberty is restricted. These safeguards are set out in Article 5 of the Human Rights Act and include: The ability to challenge the restriction of your liberty through an independent court or tribunal. In England you can do this through a Mental Health Tribunal for mental health issues or the Court of Protection for mental capacity issues.
4) Further information
If you would like more information on the right to liberty and how it works in mental health or mental capacity settings, please look at pages 19-21 of our booklet booklet ‘Mental Health, Mental Capacity: My human rights’.
If you are representing someone, e.g. as an advocate, you may also wish to look at pages 15-16 of our booklet, ‘Mental Health, Mental Capacity and Human Rights: A practitioner’s guide‘
Real Life Human Rights Story without Court Action
Making sure people with mental health problems are not being unlawfully detained
Peter was admitted to a London mental health hospital. He is an informal patient, so he has not been “sectioned” under the Mental Health Act. This means he is entitled to leave the hospital whenever he likes. If staff have concerns about Peter’s health or safety they could use powers under the Mental Health Act to detain him.
Peter wants to leave the ward to visit his sister and his friends. On the three occasions he tries to do this the nurses tell him it was not in his best interests to leave. So even though Peter was not detained and free to leave, in practice he was not able to.
Peter had access to an advocate, Rana, who had received human rights training from BIHR. After discussing the issue with Peter, Rana wrote to the hospital on his behalf flagging up concerns that this situation was breaching Peter’s right to liberty, protected by Article 5 in the Human Rights Act. Rana explained that although Peter is an informal patient, he was being treated as though the procedures for detaining him had been used. So although he should have been free to leave, he was being detained without any of the safeguards that would have been available if he was detained under the Mental Health Act. Following this Peter’s relationship with the nurses greatly improved, and he was permitted to leave when he wanted to. Peter’s mental health improved greatly, and he was discharged shortly after.
Real Life Human Rights Case from the Courts
Ensuring accountability when older people can't speak up for themselves
Wendy, a former magistrate, is 81 years old. She has lived in her home for 32 years. Wendy has recently developed severe dementia. Her son John cares for her at home, with the help of the local authority. When social workers ask Wendy about some scratches and bruises she can’t remember how they happened. The social workers decide to visit Wendy when John was out shopping and take Wendy away to a nursing home. They had no authorisation to do this.
When he returned home, John could not find his mum and no one told him where she was. It took John 19 days to find Wendy, and only after he had asked a lawyer to write to the council to try and locate her. John wanted to visit his mother, but because of the unexplained injuries, the council restricted John and Wendy’s contact, despite not investigating how the injuries had occurred. John and Wendy were not allowed to meet unsupervised for more than a year.
After sixteen months, the council dropped its (un-investigated) allegations of abuse against John. The family decided to take court action because they believed keeping Wendy in the care home was a breach of her right to liberty, which is protected by the Human Rights Act (Article 5).
The judge found the way the council had handled their concerns about Wendy’s welfare was ‘woefully inadequate’. They had not investigated whether she was at risk before they took her away from her home, and they had not got the correct authorisation to keep her in a care home. Therefore, the local authority had breached Wendy’s right to liberty. In addition, the judge said the council had breached her right to respect for her private life in her own home, protected by the HRA in Article 8. This right also protects Wendy’s right to a family life with her son, John, which was breached when their visits were restricted. Wendy and John are now free to visit whenever they want.
Preventing people with mental capacity issues from leaving services
Meg was 17 years old, had a learning disability and sometimes exhibited challenging behaviour. She was removed from her mother due to concerns about abuse and lived in an NHS residential unit. Meg was accompanied by staff whenever she left the unit.
The court was asked to decide whether Meg’s right to liberty was being restricted and decided that it was, because she was not free to leave the unit on her own and she was constantly supervised and controlled by the staff. In these types of situations a ‘Deprivation of Liberty Authorisation’ needs to be made so that checks and safeguards are put in place to make sure the restriction of liberty is necessary and justified.
(P and Q v Surrey County Council, 2014, better known as the ‘Cheshire West Case’. Meg is a made up name)