Human rights – public authority – mental health
The High Court found that a private psychiatric hospital is amenable to action under the Human Rights Act, at least in principle, in respect of its decision to change the focus of treatment on a ward. This was because it changed the nature of care and treatment offered to the detained patients there.
The HA funded the psychological support and psychotherapeutic support for a patient on the unit who appears to have been detained under s3 Mental Health Act. When the specialist staff left, the HA should of course have been told about it, and would then have had to re-assess and move her elsewhere, in order to discharge their provision functions. This fundamental obligation seems to have been overlooked by the judge and it is not clear why the Health Authority were not joined in the proceedings.
The judgement that the hospital is a public authority for the purposes of the Human Rights Act turns on the 1984 Nursing Homes and mental Nursing Homes Regulations which require hospitals to provide adequate professional staff and treatment for the patients therein. This duty is placed directly onto hospitals.
The case does not decide whether or not s23 NHSA 1977, under which the Secretary of State, and through him, health authorities (and through them, PCTs) can contract with the private sector, implicitly makes the private contracting provider into a DELEGATE of the public functions of the public body doing the contracting. We think that it does not; and that it is more akin to the s111 Local Government Act power, under which contractors are seen by the law as independent contractors assisting the authority to discharge its own functions, not as delegates or agents.