Contracting Out, Opting Out : Does the Mental Health Act 2025 Address the Human Rights Protection Gap in Commissioned Mental Health Care?

Peck, Thomas James William (2026) Contracting Out, Opting Out : Does the Mental Health Act 2025 Address the Human Rights Protection Gap in Commissioned Mental Health Care? Public Law. ISSN 0033-3565 (In Press)

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Abstract

The growth in commissioned mental health services from private providers presents a significant challenge for the protection of human rights in the UK. Restrictive legislative protections and the unpredictable judicial application of section 6 of the Human Rights Act 1998 lead to the denial of justice for those whose rights may have been violated by a private mental health provider commissioned by the state. This ‘protection gap’ was demonstrated in the recent case of Sammut v Next Steps, where the case was summarily dismissed on the grounds that a private mental health provider, commissioned by the local authority, was not a ‘public body’ for the purposes of section 6(3). Seemingly in response to injustices such as this, section 51 of the Mental Health Act 2025 seeks to address this issue, by providing for the automatic application of section 6 to private providers where they have been commissioned for aftercare services by a local authority, or where care is otherwise contracted out by the NHS. Whilst taking steps in the right direction, I argue that this reform does not go far enough and leaves significant gaps in protection remaining for vulnerable patients outside of the narrowly defined categories proposed under the Act. Of particular concern are those in receipt of private mental health care in detention settings, such as prisons or immigration detention centres. I argue that legislative reform is required to ensure that all private mental health care, commissioned by the state is considered a public function for the purposes of the Human Rights Act, ensuring access to justice for those whose rights may have been infringed in these contexts.