Significant Changes for Independent Health and Care Providers of Mental Health Services from April 2026: the Human Rights Act 1998 and “public authority” status

On 6 April 2026 Section 51 of the Mental Health Act 2025 came into effect. 

It stipulates that independent providers are “public authorities” where they are (a) providing inpatient assessment of/treatment for mental disorder arranged by or paid for by the NHS and (b) s.117 aftercare services.

This means that they must act compatibly with European Convention of Human Rights (the “ECHR”) and the Human Rights Act 1998 (the “HRA”) when delivering those services.

Whilst many independent providers will already be acting compatibly with the HRA, this change broadens the pool of people who can potentially challenge or bring a claim against a provider, and undoubtedly will bring greater scrutiny to their practice.

In practice:

• HRA duties extend, not only to formal patients detained under the Mental Health Act 1983 (the “MHA”), but also to informal patients and those receiving services under s.117 aftercare.
• The Care Quality Commission will be scrutinising policy and practice for compliance with HRA standards.
• Claims can be brought against independent providers for breaches of the HRA (e.g. right to life (Article 2 ECHR), freedom of movement/liberty (Article 5 ECHR) or private and family life (Article 8 ECHR) alongside claims in negligence.
• Decisions taken by independent providers can be challenged by judicial review – for their reasonableness, rationality and procedural fairness. Within judicial review proceedings, providers will be subject to the duty of candour and transparency principle.
• More inquests involving independent providers could have the extended scope and scrutiny required to be Article 2-compliant inquests.

This will be an opportunity for forward-thinking providers to showcase their compliance and focus on human rights.

Steps for independent providers to take

1. Review your policies and procedures to ensure that they are compliant and compatible with the HRA - governance frameworks, contractual arrangements, care practices, safeguarding processes, policies and complaints procedures should be reviewed to ensure they are consistent with ECHR rights, and robust processes and audit-trails are in place to mitigate the risk of a HRA claim.
2. Review your insurance coverage for cover for:
   1. Human rights claims;
   2. Challenges by judicial review; and
   3. Inquests.

Steps for commissioners to take

1. ICBs and local authorities should be alert to the expanded rights available to patients they place in independent sector settings and should be aware that the independent providers they engage are now subject to these increased obligations.
2. Ensure the independent providers that you commission are aware of this change.
3. Work with the independent providers that you commission to ensure their policies and procedures are compliant.
4. Reflect this change in any quality oversight arrangements with any independent providers. 

Background – what has changed?

The HRA requires “public authorities”, such as NHS Trusts (often referred to as “standard public authorities” or “core public authorities”), to act compatibly with ECHR rights. Section 6(3)(b) states that this duty also applies to private providers whose functions are “of a public nature” – sometimes referred to as “functional public authorities”. 

Whether a function is “of a public nature” has been subject to much scrutiny in a number of cases before the courts over a number of years. 

The case law demonstrated that an independent provider of these services was not, traditionally, automatically considered to be exercising a function of a public nature, instead, you had to look to the specific services/functions that were being performed:

R (A) v Partnerships in Care Ltd [2002] EWHC 529 (Admin) was a claim in judicial review by a patient detained in one of the independent provider’s hospitals. The provider was changing the service, from a ward primary for treatment of personality disorder, to a ward for treatment of mental illness. This resulted in a change of staffing provision and an inability to provider the psychology and psychotherapy the patient required. The patient Claimant, claimed that the independent provider’s decision to change the service was taken whilst undertaking functions of a public nature and therefore amenable to judicial review. The Court held that the detention of patients under the MHA in an independent psychiatric hospital was a ‘public function’ falling within the scope of the HRA. Anecdotally, the Court noted that this may not be the same for informal patients in independent hospitals.

In the more recent case of Sammut v Next Steps Mental Healthcare Ltd [2024] EWHC 2265 (KB), the Court held that the functions of a nursing care home run by a private company (which had been contracted by public authorities to provide s.117 aftercare) were “entirely private”. Simply because the placement was funded by public bodies exercising a statutory function, didn’t make the functions of the independent provider, in and of themselves, a function of a public nature. The part of the claim which had been brought under the HRA against the independent provider was accordingly struck out. 

Section 51 of the Mental Health Act 2025 now addresses this issue by providing that specified providers will be treated as public authorities when delivering certain services, set out below. 

Which services are affected?

There is a new section 142C of the Mental Health Act 1983, which states that the obligations under the HRA applies where a provider in the independent sector is delivering:

• Section 117 aftercare services to patients discharged from detention under the Mental Health Act 1983; or
• Medical treatment or assessment for mental disorder, for an inpatient at a hospital, where that treatment or assessment is arranged or funded by an NHS body. 

Where to find more help

Our team has considerable experience advising independent care providers, local authorities and ICBs on mental health law and regulatory compliance. We can assist your organisation to review existing procedures and frameworks for compatibility with ECHR rights, and provide training to staff and leadership teams on the practical application of human rights obligations in independent care settings.

If you would like to discuss further on how these changes may affect your organisation, please reach out to our expert mental health team, or explore more through our Mental Health Act 2025 Hub.