Mental health and the law—your rights

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Health Assured team

19 January 2020

Mental health problems are a growing concern in today’s society. For the individuals and families of those experiencing poor mental health, it’s often a difficult and confusing time.

The statistical data within the UK suggests that 1 in 4 people will suffer from a mental illness, with mixed anxiety and depression being the most prevalent form. According to NICE guidelines, 7.8% of adults in the UK meet the criteria for the diagnosis of mixed anxiety and depression. Due to the epidemic nature, it has become imperative to understand the law surrounding mental health.

The Mental Health Act 1983 (as amended by the Mental Health Act 2007) covers the procedural rights of mentally ill patients within England and Wales. The Act covers a broad spectrum of issues protecting those who have been detained (sectioned) under the Mental Health Act. This includes an individual’s rights when detained; the rights of the detainee’s family members, consent to treatment when detained, rights when leaving hospital treatment and rights when being treated in the community.

The Equality Act 2010 protects those suffering from a disability from unfair treatment. This may apply to individuals suffering with a mental illness, providing the mental illness is considered a ‘disability’ under the definition in the Equality Act. Disability is a protected characteristic where:

‘A physical or mental impairment that is long-term and has a substantial adverse effect on normal day-to-day activities’.

The Equality Act protects those meeting the definition from discrimination, harassment and victimisation in various everyday circumstances. For example, employment, when using service providers, public transport and governmental departments. Mental health conditions that may be covered under the Act include: depression, schizophrenia, bipolar disorder and borderline personality disorder, this is not an exhaustive list as there are various other types of mental health problems that exist.

Employers and service providers may have to make ‘reasonable adjustments’ for individuals suffering from a mental health condition, which is considered a disability under the Equality Act. Reasonable adjustments are where something is adapted or changed to remove/minimise any disadvantage an individual faces because of their disability. This can include a change to policies or procedures, providing additional aids/equipment or changing physical features of a building or premises.

The Equality Advisory & Support Service provide assistance to those who feel they have been treated unfairly due to a disability, and provide support regarding issues relating to equality and human rights.

The Mental Capacity Act 2005 provides protection to individuals who may lack the mental capacity to make decisions for themselves due to their mental health. The legislation also enables individuals to plan ahead for when they may no longer have mental capacity, relevant where an individual believes their ability to make a decision in the future will be affected by a mental health disorder.

The Human Rights Act 1998 is the main piece of law that ensures human rights are protected in the UK, placing a legal duty on public authorities and services to respect and protect an individual’s rights. There are a series of rights contained within the legislation, however the most pertinent rights under the Act for those who lack mental capacity and suffer from mental health are:

  • Article 2 - Right to Life A duty to uphold a person’s right to life e.g. protecting mentally ill patients at risk of suicide.
  • Article 3 - Prohibition of torture and inhuman or degrading treatment for example, protecting mentally ill patients from excessive force, neglect or abuse.
  • Article 5: Right to liberty and security: safeguards setting out the right of liberty and when this right can be restricted, i.e. when detained under the Mental Health Act.

A Person suffering from a mental health condition may also have the right under General Data Protection Regulation (GDPR) to access their personal data in which an organisation holds about them. A Subject Access Request should be submitted to the organisation in writing for them to release such data. Under GDPR, data concerning (mental) health will be treated to a higher degree of protection than personal data in general, as this is considered sensitive personal data

If you would like to find out more information on any of the topics mentioned in this article, please contact the Health Assured 24/7 confidential helpline.

How can you support your employees with mental health at work?

Our Employee Assistance Programme provides manager guidance on mental health in the workplace. We can help you create a safe, productive workspace that supports all employees.

We can also support neurodiverse employees with any problems they might be facing in their professional or professional lives with our 24-hour counselling helpline.

If you have any questions, call us on 0800 206 2532

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