What counts as mental health negligence?
Short answer
Mental health negligence is judged by exactly the same legal test as any other clinical negligence claim: did the care fall below the standard a reasonably competent psychiatric team would have provided (the Bolam test, refined by Bolitho), and did that failure cause harm that wouldn't otherwise have happened? There is no separate, lower standard because the care was psychiatric rather than physical.
What differs is the evidence: risk assessments, observation records, care plans under the Care Programme Approach, and — where the patient was detained — records of compliance with the Mental Health Act 1983 all become central to establishing what should have happened and what actually did.
How do mental health negligence claims typically arise?
Failure to properly risk-assess suicide or self-harm risk
A patient presents with warning signs — a previous attempt, a stated plan, a recent significant loss — but the risk assessment is superficial, not updated as circumstances change, or not acted on. NICE guidance (NG225) sets out what a proper assessment should cover; a claim often turns on whether it was followed.
Premature discharge
A patient is discharged from inpatient or crisis care while still presenting a recognised, undertreated risk to themselves, without adequate safety planning or a realistic follow-up arrangement in place.
Failure to prevent absconsion
A detained or voluntary inpatient known to be at risk leaves the ward due to inadequate observation levels, unsecured means of access, or staff failing to follow an agreed observation plan.
Medication errors and monitoring failures
Psychiatric medications with a narrow safety margin — lithium, clozapine, and others requiring regular blood monitoring — are prescribed or continued without the required checks, or dosing errors go uncorrected.
Failure to follow or maintain a care plan
An agreed care plan (typically under the Care Programme Approach) sets out how risk should be managed and by whom. Claims arise where the plan is not followed, not updated after a change in presentation, or never properly communicated between inpatient, crisis and community teams.
Community mental health team follow-up failures
A patient discharged into the community is not followed up within the timeframe their risk required, referrals between services are lost, or repeated contact attempts by concerned family members are not acted on.
What is section 117 aftercare, and why does it matter?
Patients detained under certain sections of the Mental Health Act 1983 (most commonly sections 3, 37, 45A, 47 and 48) are entitled to free aftercare under section 117 once discharged — arranged jointly by the NHS and the local authority, and continuing for as long as it's needed. This duty was confirmed by the House of Lords in R (Stennett) v Manchester City Council [2002] UKHL 34. Where that aftercare is never properly arranged, or is withdrawn prematurely, and the patient deteriorates or comes to harm as a result, that failure can itself found a claim — separately from whatever happened during the original admission.
Does being detained (sectioned) change the legal position?
No — detention under the Mental Health Act does not reduce the duty of care owed to a patient. If anything, the fact that the state has taken control of a person's liberty specifically to manage a risk increases the scrutiny applied to how that risk was actually managed: inadequate observation levels, failure to secure means of access to a known method of self-harm, or poor handover between shifts are all common features of successful claims involving detained patients.
What if a loved one died by suicide following mental health care?
Where someone dies by suicide after contact with mental health services — whether as an inpatient, a detained patient, or someone recently discharged — the death will usually be investigated at an inquest, often engaging Article 2 of the European Convention on Human Rights (the right to life). An Article 2 inquest specifically examines whether the state did enough to protect a known or reasonably foreseeable risk to life — its findings, and the evidence gathered for it, frequently form the foundation of a subsequent fatal medical negligence claim brought by the family.
Who do you actually claim against?
Depending on how care was provided, a claim can be brought against an NHS mental health trust, a private psychiatric hospital or clinic, the individual psychiatrist or consultant responsible for treatment decisions, or a GP where the failure was in prescribing or monitoring psychiatric medication in primary care. NHS trust claims are defended by NHS Resolution in the same way as any other NHS clinical negligence claim.
What evidence does a mental health negligence claim need?
- The full psychiatric record, including every risk assessment and its stated reasoning.
- Observation records and nursing notes, particularly around the time of any incident.
- The care plan (Care Programme Approach documentation) and any record of when it was reviewed or changed.
- Correspondence and referral records between inpatient, crisis and community teams.
- Independent expert evidence from a consultant psychiatrist on whether the standard of care was met.
How is a mental health negligence claim funded?
As with other clinical negligence claims, these are almost always funded on a Conditional Fee Agreement — no win no fee. You pay nothing upfront and nothing if the claim fails.
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Frequently asked questions
Can you claim if a family member died by suicide after being discharged from mental health care?
Potentially, yes — if the discharge, or the risk assessment leading up to it, fell below the standard a reasonably competent psychiatric team would have applied, and proper care would probably have prevented the death. These claims usually follow an Article 2 inquest, which examines whether the state did enough to protect a known risk to life.
Does the same legal test apply to mental health care as physical health care?
Yes. There is no separate, lower standard for mental health care. The same breach-of-duty test (Bolam, refined by Bolitho) and the same causation requirement apply — the difference is that the standard is judged against what a reasonably competent psychiatric team would have done, informed by guidance such as NICE NG225 on self-harm.
What is section 117 aftercare, and can failures there found a claim?
Under section 117 of the Mental Health Act 1983, patients detained under certain sections are entitled to free aftercare on discharge, arranged by the NHS and local authority. A failure to arrange or provide that aftercare — where it causes a deterioration or a further crisis — can itself be a basis for a claim.
Can you claim over how someone was treated while detained (sectioned)?
Yes. Detention under the Mental Health Act does not remove the duty of care. Claims can arise from inadequate levels of observation, failure to prevent absconsion, safeguarding failures on the ward, or medication errors — the same clinical negligence principles apply to detained patients as to any other.
Related guides
Sources & further reading
Primary statute, case law and regulator guidance referenced in this article.
- Mental Health Act 1983 (as amended) — UK Legislation
- NICE NG225 — Self-harm: assessment, management and preventing recurrence — NICE
- R (Stennett) v Manchester City Council [2002] UKHL 34 — Case law
- Bolam v Friern Hospital Management Committee [1957] 1 WLR 582 — Case law
- Care Quality Commission — mental health services — CQC