Private hospitals must comply with human rights law

The ruling in the case of the Queen (on the application of A) v
Partnerships in Care Ltd (11 April 2002) is important for
registered nursing homes and residential homes.

In this case a private hospital registered as a nursing home
cared for and treated persons detained under section 3 of the
Mental Health Act 1983 placed there by the health authority.

The hospital decided to change the focus of the treatment it
provided so that, primarily it cared for those suffering from
mental illness rather than those suffering from personality
disorder.

The claimant had been placed at the hospital for treatment for
personality disorder and now found herself without suitable
treatment. She challenged the change in focus by the hospital by
way of judicial review arguing that the change was irrational and
unreasonable, and in addition a breach of her rights under article
3 (freedom from degrading treatment) and article 8 (right to
respect for private and home life) under the European Convention on
Human Rights.

The hospital claimed it was a private body and therefore
judicial review and the Human Rights Act 1998 did not apply to it
(judicial review and human rights law generally applies to the
operation of public functions rather than, for example, the
operation of private bodies).

However, Mr Justice Keith held that because the hospital was
registered under the Registered Homes Act 1984, and because nursing
home regulations stated that those registered must provide adequate
staff and treatment appropriate for those it cares for, then the
hospital was susceptible to judicial review when carrying out these
functions and, while carrying out these functions, was a public
authority for the purposes of the application of the Human Rights
Act 1998.

Comment: This case confirms that where a private body carries
out functions which are specifically underpinned by statute or
regulations, even where it cares for persons pursuant to a contract
with a health authority, then the courts will supervise the
exercise of its functions to ensure they are lawful, reasonable and
compliant with human rights law.

Stephen Cragg

Doughty Street Chambers