Mental health negligence claims: when care falls below a reasonable standard

If you are struggling right now, you can call Samaritans free on 116 123 at any time. In England you can also call 111 and select the mental health option. If you or someone else is at immediate risk, call 999 or go to A&E.

This guide is for patients and families who believe that mental health care went wrong. It explains the legal test, the right to life under the Human Rights Act, claims about detention under the Mental Health Act, what happens after a death, how to complain and the time limits in each part of the UK. It is general information, not legal or medical advice. We are an independent information service, not a law firm.

The legal test

As in other clinical negligence claims, you must show that the care fell below an acceptable standard and that this caused the harm. For diagnosis and treatment, the courts ask whether what was done was accepted as proper by a responsible body of medical opinion, the Bolam test in England and Wales and the equivalent Hunter v Hanley test in Scotland, and the opinion relied on must be capable of standing up to rational analysis. A patient must also be told about material risks of recommended treatment and reasonable alternatives (Montgomery v Lanarkshire Health Board, 2015).

Questions that can arise include whether risk was properly assessed before leave or discharge, whether a known suicide attempt or self-harm was acted on, and whether medication was prescribed and monitored safely. See our guides to premature discharge claims and prescription error claims.

In England and Wales, the clinical disputes protocol applies to claims against NHS and private healthcare providers and says copy records should be provided within 40 days of the request. Claims against NHS trusts in England are handled by NHS Resolution's Clinical Negligence Scheme for Trusts, to which all NHS trusts, including foundation trusts, belong.

The right to life and the Rabone case

Article 2 of the European Convention on Human Rights says everyone's right to life shall be protected by law, and section 6 of the Human Rights Act 1998 makes it unlawful for a public authority to act incompatibly with it. In Rabone v Pennine Care NHS Foundation Trust (2012), Melanie Rabone was an informal patient, meaning one not detained under the Mental Health Act. She had been admitted as an emergency after a suicide attempt and assessed as a high risk of a further attempt. She took her own life while on two days' home leave. The UK Supreme Court held:

• the trust owed her the operational duty under Article 2 to take reasonable steps to protect her from the real and immediate risk of suicide;
• family members of the deceased can bring claims in their own right; and
• it was equitable to extend the one-year time limit, which the parents had missed by almost four months.

The court described detention, including in a psychiatric hospital, as the paradigm example of the state assuming responsibility for someone's welfare and safety. Two practical points follow. First, Human Rights Act claims must usually be brought within one year beginning with the date of the act complained of, unless the court allows longer (section 7(5)), and damages are only awarded where necessary to afford just satisfaction (section 8). Second, the court noted that relatives who settle their ordinary claims arising from a death will generally cease to be victims for a corresponding Convention claim, so take advice before accepting any offer.

Claims about detention under the Mental Health Act

Section 139 of the Mental Health Act 1983 protects people acting under the Act. In England and Wales, no one is liable for an act purporting to be done under the Act unless it was done in bad faith or without reasonable care, and no civil proceedings can be brought against any person in any court about such an act without the leave of the High Court. That section does not apply to proceedings against the Secretary of State or against NHS bodies listed in it, including a local health board, an NHS trust and an NHS foundation trust, so a claim against the trust itself does not need leave.

In England, the Care Quality Commission investigates complaints about how the Mental Health Act has been used, including care while detained in hospital, on guardianship or under a community treatment order. It usually asks you to complain to the service provider first.

After a death

In England and Wales, a senior coroner must investigate a death where there is reason to suspect it was violent or unnatural, the cause is unknown, or the person died in custody or otherwise in state detention. A person compulsorily detained by a public authority within the meaning of section 6 of the Human Rights Act is in state detention, and an inquest into such a death must be held with a jury if the death was violent or unnatural or the cause is unknown (sections 1, 7 and 48 of the Coroners and Justice Act 2009). Our guide to inquests and personal injury claims explains how an inquest relates to a claim.

The family may be able to claim. The Fatal Accidents Act 1976 allows a claim for the benefit of dependants where a death is caused by a wrongful act, neglect or default, including damages for bereavement for certain close relatives, and the estate can claim for the deceased's own losses because causes of action survive for its benefit. In England and Wales a Fatal Accidents Act claim must be brought within three years of the date of death, or of the date of knowledge of the person it is for if later; Scotland and Northern Ireland also allow three years from the death. See our fatal accident claims guide.

Complaints

A complaint is a separate process from a legal claim, with its own deadlines, and it does not stop the court time limit: the clinical disputes protocol says it does not alter the statutory time limits for starting court proceedings.

• England. Complain to the NHS within 12 months of the matter or of it coming to your notice, unless you had good reasons for the delay and it can still be investigated effectively and fairly. The Parliamentary and Health Service Ombudsman, which becomes the Public Service Ombudsman from 1 October 2026, will not consider a complaint made more than a year after you first had notice of the matters, unless it considers it reasonable to do so.
• Wales. A concern must usually be raised within 12 months, and never three or more years after the event: see our guide to medical negligence claims in Wales.
• Scotland. Normally within six months of the event or of finding out that you have a reason to complain, but no longer than 12 months after the event: see medical negligence claims in Scotland.
• Northern Ireland. Usually within six months of becoming aware and normally no longer than 12 months after the event: see medical negligence claims in Northern Ireland.

Time limits and mental capacity

A claim for personal injury must usually be started within three years of the negligence, or of the date of knowledge if later, in England and Wales (sections 11 and 14 of the Limitation Act 1980), Scotland (section 17 of the Prescription and Limitation (Scotland) Act 1973) and Northern Ireland (article 7 of the Limitation (Northern Ireland) Order 1989). Courts can allow some late claims, but only at their discretion.

Mental capacity matters. In England and Wales, a person who lacks capacity, within the meaning of the Mental Capacity Act 2005, to conduct legal proceedings is under a disability, and if they were under a disability when the claim arose the three years run from when that ends (sections 28 and 38). In Scotland, any time when the injured person was under legal disability by reason of unsoundness of mind is not counted (section 17(3)). In Northern Ireland, a person is conclusively presumed to be of unsound mind while liable to be detained in hospital for treatment under the Mental Health (Northern Ireland) Order 1986, and the disability rules in article 48 then apply.

Frequently asked questions

Related guides: medical negligence claims, premature discharge claims, fatal accident claims, inquests, psychological injury claims and time limits.

Official sources used for this guide: Rabone v Pennine Care NHS Foundation Trust [2012] UKSC 2; Mental Health Act 1983, s.139; Human Rights Act 1998, s.7; Coroners and Justice Act 2009, s.1; Limitation Act 1980, s.28; Montgomery v Lanarkshire Health Board [2015] UKSC 11. This guide is general information about the law in the UK, not legal advice; the law can change, so check your own position with a regulated solicitor.