Recommendation 24

HM Government Accepted

We agree that this should be remedied and committed in the previous house to continue work on this issue. The Government tabled an amendment at Commons Committee, which seeks to address issues with the variations in the application of the Human Rights Act (HRA). The amendment, in line with the committee’s view, sets out that where inpatient care for mental disorder and Section 117 after care (and its equivalent in Scotland) is arranged and paid for by a public authority, private providers will be considered public authorities under section 6 of the Human Rights Act. The amendment focuses on the provision of care and treatment for mental disorder in line with the scope of the Bill. More broadly, the Human Rights Act applies to public authorities, which includes any person certain of whose functions are functions of a public nature. The scope of “public authority” in Section 6 of the Human Rights Act was intended to be broad and flexible. The application of the Human Rights Act to outsourced services has developed via both case law and legislation since the Act came into force to reflect changes in how public functions are delivered. In this specific case under the Mental Health Act, we are seeking to fix a specific issue in relation to Human Rights Act coverage in mental health care, whilst maintaining the flexibility of the current position in the Human Rights Act. There are ongoing questions about how human rights are protected when public authorities are outsourcing their functions and we are alive to stakeholder interest in this.