Key takeaways
Bill introduces stronger patient choice and autonomy
Advance choice documents will guide future treatment decisions.
Commissioners face new statutory responsibilities
Systems and training must support compliance with reforms.
Focus on reducing compulsory treatment and improving safeguards
Providers should review policies to align with legislative changes.
Perspectives: care homes
The Mental Health Bill (‘the Bill’) is currently making its way through Parliament. It has been scrutinised by the Public Bill Committee and is now at Report stage (September 2025).
As part of our series of articles addressing different sector perspectives, we highlight some of the key changes for the care homes sector for providers, service users and commissioners to be aware of.
Relevant changes
The care homes sector may be affected by changes brought about by the Bill in a number of areas, including:
Changes to detention criteria and the implementation of the serious harm threshold for detention under the Mental Health Act 1983 (‘MHA’) may mean people are managed in care home settings where they may have been admitted to hospital prior to the changes being brought in by the Bill.
Similarly, changes to MHA detention criteria for learning disabled and/or autistic (‘LDA’) people may mean care homes are utilised more for care of LDA individuals.
People subject to Community Treatment Orders (‘CTO’s), Conditional Discharge or Guardianship in care homes will have different rights under the MHA, for example:
Tribunal application timeframes are changing;
Nominated persons will replace nearest relatives.
Many of the above are covered in our other articles in our Mental Health Bill series. Therefore, we are focusing below on the human rights aspects as a very significant change in this sector.
Human rights in care homes – the present position
The European Convention on Human Rights (‘the Convention’) protects a range of rights and freedoms, given further effect in the UK via the Human Rights Act 1998 (‘HRA’).
A number of human rights are prominently engaged in care settings, including:
Article 2 ECHR – the right to life
Article 3 ECHR – freedom from torture and inhuman or degrading treatment or punishment
Article 5 ECHR – the right to liberty and security of person
Article 8 ECHR – the right to family and private life
Article 14 ECHR – freedom from discrimination in the enjoyment of human rights
Section 6(3)(b) HRA requires public authorities (and ‘any person…whose functions are functions of a public nature’) to act compatibly with the Convention, and this carries with it the right to rely on the HRA to directly enforce Convention rights if they are breached. Not all care settings and providers are considered to be public authorities within the meaning of this section and at present, the obligation only applies to publicly run care providers or to persons whose care is arranged or funded by a local authority (see section 73 of the Care Act 2014). In particular, the following persons are not currently able to rely on the HRA directly:
Self-funded residents in private care homes
Persons whose care is funded or arranged under NHS continuing healthcare (‘CHC’)
Persons whose care is funded by the NHS under section 117 of the Mental Health Act 1983 (‘MHA’).
This means that two residents in the same care home can have different legally enforceable rights, depending on how they came to be a recipient of care and what the funding arrangement for their care is. This is referred to as the human rights protection gap. This was recently revisited in the case of Sammut and others -v- Next Steps Mental Healthcare Ltd and others [2024] EWHC 2265 (KB).
Joint Committee on human rights
The Joint Committee on Human Rights (“JCHR”) published a report entitled Protecting human rights in care settings in 2022 following an inquiry and highlighted concerns about inadequate controls on, and a lack of recourse in relation to:
the imposition of DNACPR (do not attempt cardio-pulmonary resuscitation) (Articles 2, 8 and 14)
the use of restrictive practices (Articles 3 and 5)
inadequate provision of personal care (which could amount to inhuman or degrading treatment contrary to Article 3)
The report made the following observations:
The system of rights enforcement for those in care settings can be close to if not incoherent when viewed from a user perspective (paragraph 88)
It is vitally important that care users (or their loved ones or representatives on their behalf) are able to access real and enforceable human rights protections in care settings – irrespective of the particular structural system, or funding system, providing that care… (paragraph 90)
Offering lesser human rights protections in private care settings for privately funded individuals and those whose care is funded or arranged by the NHS under continuing healthcare arrangements, as compared to other care users whose care is paid for or arranged by a local authority cannot be justified (paragraph 91)
Separately, the Care Quality Commission (“CQC”) expressed concern that a failure to close the human rights protection gap may have implications for ensuring that people have protection against inhuman or degrading treatment, and the British Institute of Human Rights expressed the view that the gap was not intended by Parliament.
The JCHR recommended that the Bill should be amended to ensure that the HRA applies whenever people receive publicly funded mental health treatment or after-care, or are deprived of their liberty on mental health grounds and that this protection should not depend on whether or not the provider itself is public or private.
Reform
Clause 52 of the Bill provides for the insertion of a new section 142D into the MHA which extends the application of the HRA to certain private care providers. This change will mean that registered care providers are to be regarded as exercising a function of a public nature in providing any of the following services:
after-care services provided pursuant to arrangements made under section 117 MHA;
services provided by a local authority in Scotland under section 25 of the Mental Health (Care and Treatment) (Scotland) Act 2003;
the provision of medical treatment for mental disorder or assessment in relation to mental disorder for an inpatient at a hospital, but only where that treatment or assessment is arranged or paid for by an NHS body.
This will mean that state funded patients receiving any of the above services in privately operated care homes will have enforceable protection of their rights under the HRA.
Implications for health and social care providers
Providers will need to think about how they provide the specified functions in a way that is compatible with Convention rights, including policies and procedures, staff training, monitoring and review, complaints procedures, audit and how this can be evidenced.
NHS commissioners of care will have a duty to include specific contractual obligations concerning Convention rights in commissioning arrangements and to make arrangements for ongoing monitoring and review of provider compliance with the standards. Providers should expect to see these changes reflected in commissioning contracts.
The scope of CQC regulation and inspections is likely to expand to include demonstrable compliance with the requirement.
Providers will also need to be prepared to deal with claims under the HRA being directed to them by or on behalf of service users. As such, in addition to the work involved in ensuring compliance with commissioning and regulatory requirements, the potential for HRA claims and associated legal costs will be an insurable risk. Providers should check their insurance cover, seek additional cover if necessary and be prepared for insurers to impose their own compliance requirements in relation to this area of risk.
If your organisation requires advice or training in relation to the Mental Health Bill and/or associated matters, please do not hesitate to get in touch with our experienced team.
This article was co-authored by Caroline Hadfield.
