Mental Health Bill leaves 'dangerous gaps' which could threaten our human rights

Imagine being detained, suffering and ultimately dying while under the care of a private mental healthcare provider, commissioned by the state, only for your family to be denied justice because the private provider wasn’t deemed a ‘public authority’ under the Human Rights Act 1998.

This is a potential reality highlighted in a recent UK legal case, known as Summit v Next Steps Mental Healthcare Ltd, where statutory technicalities excluded the case from review.

Paul Sammut suffered from schizophrenia and spent much of his adult life detained in a secure NHS hospital. In February 2018, he was transferred to a private facility commissioned by a public authority but operated by Next Steps Ltd. 

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While held at the facility, Sammut was deprived of his liberty, despite no authorisation being given to do so. In April 2019, Sammut died from bronchopneumonia (a type of pneumonia affecting the lungs), a large obstruction in his intestines and faecal impaction, each linked to side effects of his medication.

Believing his death and detention to be the result of negligent and unlawful action by Next Steps, Sammut’s family sought to bring a case for alleged violations of his human rights. These facts were outlined by Judge Bird in the opening lines of his judgment, yet the substance of the family’s claim was never heard.

The court summarily dismissed the case as inadmissible on the grounds that Next Steps was a private company and could not be reviewed under the Human Rights Act which restricts claims to public bodies, or private bodies performing ‘public functions’ – neither of which Judge Bird was convinced of in this case.

The Mental Health Bill 2025 seeks to address the specific injustice felt by Sammut’s family. The bill proposes to automatically consider private mental health providers to be ‘public bodies’ whose actions can be scrutinised by the court under the Human Rights Act, where aftercare has been commissioned under the Mental Health Act 1983, or where mental health treatment is commissioned to a private operator but paid for by the NHS.

Such a reform doubtless moves us in the right direction towards greater accountability for private mental health providers, and a reduction in the protection gap for those placed in NHS and local authority commissioned mental health care services.

However, the phrase ‘hard cases make bad law’ appears to bear fruit once again. The provision clearly addresses cases such as Sammut’s but does so in such a narrow way as to entirely miss an overarching issue with excluding private operators from human rights review. By restricting automatic protection only to those mental health services commissioned by the NHS or local authorities, the bill fails to protect entire groups of vulnerable individuals whose care is provided outside of these narrow parameters.

Of particular concern are detained individuals, such as prisoners or those held in immigration detention facilities. Thousands of individuals pass through detention facilities every year, with a significant proportion of these services managed by private companies. The provision of mental health care is therefore also often commissioned to private providers. Anyone whose rights are violated while receiving mental health care in this context would not be protected by the new bill. This issue can be felt more broadly, beyond mental health care. The law fails to protect vulnerable individuals placed into privatised care or whose lives are ultimately under the control of private firms. 

A stark example comes from the 2019 case of Ali (Iraq) v Serco Ltd, where a failed asylum seeker was evicted by a private accommodation provider, through a new policy of changing locks without obtaining a court order. It was alleged by Shakar Ali that there was an absence of due process, and her human rights had been violated. However, the Court decided that Serco had not acted unlawfully, and, like Sammut, excluded Ali’s human rights claim, on the grounds that the provider was a private company, not a public body.

The Mental Health Bill while admirable, is placing a plaster over a gaping wound, which expands far beyond local authorities, the NHS or even mental health care alone. Indeed, Baroness Keely when introducing the amendment which brought about this change, noted the bill’s inability to capture those in commissioned care for physical illness, or even children in outsourced social care, or education.

For these innately vulnerable individuals, human rights protections remain uncertain. Cases such as Sammut’s or Ali’s are not isolated. They represent a fundamental flaw in our current human rights system, which fails to account for the growing role played by private companies in the provision of traditionally public services. This failure potentially places the security of human rights protections at risk for millions of vulnerable individuals across the UK.

The Mental Health Bill takes steps in the right direction towards closing the protection gap in commissioned mental health care. Yet analysis reveals that it still leaves significant and dangerous gaps in human rights protection for many highly vulnerable individuals. As the bill enters its third reading in the House of Commons, these issues must be brought to light.

The proposed bill continues to leave the door open for injustices, like those felt by the family of Paul Sammut, to continue. In the context of mental health care, the vill needs to broaden its scope to capture all provision of mental health services by private providers, regardless of the body commissioning the care. The ability of an individual to seek protection of their human rights should not be dependent on arbitrary technicalities, like who paid for their care. Beyond mental health, a serious conversation is needed about how we monitor and hold accountable private companies who play an ever-growing role in public services.

Dr Thomas Peck is a lecturer in medical law and ethics at the Lancaster University School of Law.

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