Domestic legislation and international human rights standards: the case of mental health and incapacity

ABSTRACT

The right to health has been somewhat neglected in discussions about human rights at both national and international levels. States are often reluctant to implement socio-economic rights which they consider to be a resourcing issue, rather than a matter of rights. The right to mental health has received even less attention and is rarely mentioned in national laws and policies, with the focus remaining largely on compulsory care and treatment. The adoption of the United Nations Convention on the Rights of Persons with Disabilities (CRPD) therefore provides new impetus to explore the right to health, and mental health in particular, for people with mental disabilities. By considering the rights to health in Article 25 and to rehabilitation and habilitation in Article 26, together with the right to exercise legal capacity under Article 12 CRPD and the support paradigm inherent in this, it may be possible to achieve realisation of the right to mental health in its broadest sense.

This article explores the links between Article 12, the support paradigm and the right to mental health. It also reflects on the existing legislative and human rights framework within Scotland and explores to what extent the right to mental health is currently being realised. It suggests that fully embracing the rights identified in Articles 12, 25 and 26 CRPD is required to achieve a shift in focus away from inappropriate compulsion and towards providing resources and services to support good mental health which could enable the realisation of the right to mental health at the national level.

KEYWORDS:

• Mental health
• human rights
• right to mental health
• legal capacity

Disclosure statement

No potential conflict of interest was reported by the authors.

Notes on contributors

Jill Stavert is Professor of Law and Director of the Centre for Mental Health and Capacity Law at Edinburgh Napier University, Scotland. Her research and teaching interests are international, European and national human rights and mental health and capacity law and policy.

Rebecca McGregor was a Research Assistant with the Centre for Mental Health and Capacity Law (2014–2017) and currently holds a research post at the Equality and Human Rights Commission office in Scotland.

Notes

1 Elizabeth Mottorshaw and Rachel Murray, ‘National Responses to Human Rights Judgments: The Need for Government Co-ordination and Implementation’, European Human Rights Law Review 6 (2012): 639.

2 Eric Rosenthal and Leonard S. Rubenstein, ‘International Human Rights Advocacy under the “Principles for the Protection of Persons with Mental Illness”’, International Journal of Law and Psychiatry 16 (1993): 288.

3 Such an interpretation mirrors that of the World Health Organization (WHO). See, for example, WHO, Mental Health: Strengthening our Response, Factsheet, updated April 2016, http://www.who.int/mediacentre/factsheets/fs220/en/ (accessed June 10, 2016), where it states ‘Mental health is a state of well-being in which an individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and is able to make a contribution to his or her community’. See also WHO, Constitution and Mental Health Action Plan 2013/2020, para. 08, http://www.who.int/governance/eb/who_constitution_en.pdf and http://apps.who.int/iris/bitstream/10665/89966/1/9789241506021_eng.pdf?ua=1 (accessed June 10, 2016) which sees ‘mental health’ as an integral and essential component of ‘health’.

4 For the purposes of this paper the definition of ‘mental disorder’ found in section 328 of the Mental Health (Care and Treatment)(Scotland) Act 2003 will be adopted in that it includes mental illness, learning disability and personality disorder.

5 SHRC, Getting It Right? Human Rights in Scotland, October 2012, p. 10, http://www.scottishhumanrights.com/application/resources/documents/SNAP/GettingitRightAnOverviewofHumanRightsinScotland2012.pdf (accessed July 4, 2016).

6 Ibid., para. 5.1, page 240.

7 Urfan Khaliq and Robin Churchill, ‘The Protection of Economic and Social Rights: A Particular Challenge?’, in UN Human Rights Treaty Bodies – Law and Legitimacy, ed. Hellen Keller and Geir Ulfstein (Cambridge: Cambridge University Press, 2011), 199–260, 200.

8 Ibid., 200–1.

9 Commission on Human Rights, The Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health – Report of the Special Rapporteur, Paul Hunt, submitted in accordance with Commission resolution 2002/31, 13 February 2003, UN Doc. E/CN.4/2003/58, para. 39.

10 United Nations, Vienna Declaration and Programme of Action, adopted by the World Conference on Human Rights in Vienna 25 June 1993, section I, para. 5, http://www.ohchr.org/EN/ProfessionalInterest/Pages/Vienna.aspx.

11 Convention on the Rights of Persons with Disabilities, adopted 13 December 2006, GA Res 61/106, UN Doc. A/Res/61/106 (entered into force 3 May 2008).

12 Rosemary Kayess and Philip French, ‘Out of Darkness into Light? Introducing the Convention on the Rights of Persons with Disabilities’, Human Rights Law Review 8, no. 1 (2008): 33.

13 Constitution of the WHO, entered into force 7 April 1948, 45th ed., Supplement, October 2006, http://www.who.int/governance/eb/who_constitution_en.pdf.

14 WHO, Mental Health: Strengthening our Response.

15 John Tobin, The Right to Health in International Law (Oxford: Oxford University Press, 2012), 125.

16 Committee on Economic, Social and Cultural Rights, General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12 of the International Covenant on Economic, Social and Cultural Rights), 11 August 2000, UN Doc. E/C.12/2000/4, para. 8.

17 Ibid., para. 8.

18 Ibid., para. 4.

19 Ibid., para. 11.

20 Jennifer Prah Ruger, ‘Toward a Theory of a Right to Health: Capability and Incompletely Theorized Agreements’, Yale Journal of Law and the Humanities 18, no. 3 (2006): 280.

21 Paul Hunt and Judith Mesquita, ‘Mental Disabilities and the Human Right to the Highest Attainable Standard of Health’, Human Rights Quarterly 28 (2006): 333.

22 Lawrence O. Gostin and Lance Gable, ‘The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health’, Maryland Law Review 63 (2004): 44.

23 Kayess and French, ‘Out of Darkness into Light?’, 14–5. See, for example, United Nations General Assembly, Declaration on the Rights of Mentally Retarded Persons, Resolution 2856 (XXVI), 20 December 1971, UN Doc. A/RES/26/2856 and 1991 UN Principles for the Protection of Persons with Mental Illness (the MI Principles).

24 T.W. Harding, ‘Human Rights Law in the Field of Mental Health: A Critical Review’, Acta Psychiatrica Scandinavica 101 (2000): 24; Sascha Mira Callaghan and Christopher Ryan, ‘Is There a Future for Involuntary Treatment in Rights-based Mental Health Law?’, Psychiatry, Psychology and Law 21, no. 5 (2014): 748; Bernadette McSherry, Mental Health and Human Rights: The Role of the Law in Developing a Right to Enjoy the Highest Attainable Standard of Mental Health in Australia, Faculty of Law, Monash University Research Paper No 2009/31, http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1599383## (accessed July 4, 2016).

25 DD  v. Lithuania (2012) ECHR 254; Shtukaturo v. Russia (Art 8) (2008) ECHR 223; Stane v. Bulgaria (Art 8) (2012) ECHR 46; X  v. Finland (Arts 5 and 8) (2012) ECHR 1371; Ivinovic  v. Croatia (Application no. 13006/13, 18 September 2014); Lashin  v. Russia (Art 8) (2013) ECHR 63; Kochero v. & Sergeyo v. Russia (Art 8) (Application no. 16899/13, 29 March 2016).

26 United Nations Human Rights Council, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Dainius Pūras, UN Doc. A/HRC/29/33, 2 April 2015, para. 76–7.

27 Commission on Human Rights, Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, Paul Hunt, 11 February 2005, UN Doc. E/CN.4/2005/51, para. 22 and 43.

28 Peter Bartlett, ‘Implementing a Paradigm Shift: Implementing the Convention on the Rights of Persons with Disabilities in the Context of Mental Disability Law’, in Torture in Healthcare Settings: Reflections on the Special Rapporteur on Torture’s 2013 Thematic Report (Centre for Human Rights and Humanitarian Law, American University Washington College of Law, 2013).

29 Annegret Kampf, ‘Involuntary Treatment Decisions: Using Negotiated Silence to Facilitate Change?’, in Rethinking Rights-Based Mental Health Laws, ed. Bernadette McSherry and Penelope Weller (Oxford: Hart Publishing, 2010), 129–50, 133.

30 CRPD, art. 1.

31 Peter Bartlett, ‘The United Nations Convention on the Rights of Persons with Disabilities and Mental Health Law’, The Modern Law Review 75, no. 5 (2012): 759.

32 CRPD, art. 25(a).

33 CRPD, art. 25(b).

34 CRPD, art. 25(d).

35 United Nations, Promoting the Rights of Persons with Mental and Intellectual Disabilities, Item 5 (c) of the Provisional Agenda. Matters Related to the Implementation of the Convention (Round Table 2) Conference of States Parties to the Convention on the Rights of Persons with Disabilities, Ninth Session New York, 14–16 June 2016, http://www.un.org/disabilities/documents/COP/9/RT2/CRPD_CSP_2016_3-1603538E.pdf (accessed September 1, 2016).

36 WHO, Towards a Common Language for Functioning, Disability and Health, WHO/EIP/GPE/CAS/01.3, p. 9.

37 For example, Tobin, Right to Health in International Law, 130; Ruger, ‘Toward a Theory of a Right to Health’, 316.

38 Bernadette McSherry and Kay Wilson, ‘The Concept of Capacity in Australian Mental Health Law Reform: Going in the Wrong Direction?’, International Journal of Law and Psychiatry 40 (2015): 60; Piers Gooding, ‘Supported Decision-Making – A Rights-Based Disability Concept and its Implications for Mental Health Law’, Psychiatry, Psychology and Law 20, no. 3 (2013): 439.

39 Tina Minkowitz, ‘The United Nations Convention on the Rights of Persons with Disabilities and the Right to be Free from Nonconsensual Psychiatric Interventions’, Syracuse Journal of International Law and Commerce 34 (2007): 408.

40 Committee on the Rights of Persons with Disabilities, General Comment No. 1 Article 12: Equal Recognition Before the Law, 19 May 2014, UN Doc. CRPD/C/GC/1 (CRPD General Comment No. 1), para. 13.

41 Ibid., para. 17.

42 Ibid., para. 3, 7, 9, 17 and 26.

43 See Minkowitz, ‘United Nations Convention on the Rights of Persons with Disabilities’; Eilionóir Flynn and Anna Arstein-Kerslake, ‘The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?’, Berkeley Journal of International Law 32 (2014): 134–53, 136–7; Amita Dhanda, ‘Legal Capacity in the Disability Rights Convention: Stranglehold of the Past or Lodestar for the Future?’, Syracuse Journal of International Law and Commerce 34 (Spring, 2007): 429–62, 457.

44 See for example: Eilionóir Flynn and Anna Arstein-Kerslake, (1) ‘The Support Model of Legal Capacity: Fact, Fiction, or Fantasy?’, Berkeley Journal of International Law 32 (2014): 134–53; (2) ‘The General Comment on Article 12 of the Convention on the Rights of Persons with Disabilities: A Roadmap for Equality before the Law’, International Journal of Human Rights (2015): 1–20; and (3) Legislating Personhood: Realising the Right to Support in Exercising Legal Capacity’, International Journal of the Law in Context 10, no. 1 (2014): 98–100; Amita Dhanda, ‘Legal Capacity in the Disability Rights Convention’; Katrine Del Villar, ‘Should Supported Decision-Making Replace Substituted Decision-Making? The Convention on the Rights of Persons with Disabilities and Coercive Treatment under Queensland’s Mental Health Act 2000’, Laws 4 (2015): 173–200; Piers Gooding, ‘Navigating the “Flashing Amber Lights” of the Right to Legal Capacity in the United Nations Convention on the Rights of Persons with Disabilities: Responding to Major Concerns’, Human Rights Law Review 15 (2015): 45–71; Peter Bartlett, ‘A Mental Disorder of a Kind or Degree Warranting Confinement: Examining Justifications for Psychiatric Detention’, The International Journal of Human Rights 16, no. 6 (2012): 834 discusses ‘impairment at the core of the mental disability’.

45 Bartlett, ‘A Mental Disorder of a Kind or Degree Warranting Confinement’, 834.

46 Rosenthal and Rubenstein, ‘International Human Rights Advocacy’, 261.

47 SHRC, Getting it Right? Human Rights in Scotland, 11–2.

48 Ibid.

49 Ryan Goodman and Derek Jinks, ‘Measuring the Effects of Human Rights Treaties’, European Journal of International Law 14, no. 1 (2003): 173.

50 Scotland Act 1998, sections 35 and 58.

51 McSherry, Mental Health and Human Rights.

52 Eunna Lee and Ditte Johanne Horndrup, ‘The Right to Health: An Interview with Professor Paul Hunt’, Essex Human Rights Review 2, no. 1 (2005): 57.

53 Scottish Government, New Directions – Report on the Review of the Mental Health (Scotland) Act 1984, January 2001, SE/2001/56; Scottish Law Commission, Report on Incapable Adults, September 1995, (Scot Law Com No 151), Cm 2962.

54 2003 Act, section 1(4).

55 2000 Act, section 1(3).

56 Jennifer Fischer, ‘A Comparative Look at the Right to Refuse Treatment for Involuntarily Hospitalised Persons with Mental Illness’, Hastings International and Comparative Law Review 89 (Winter, 2006): 175.

57 2003 Act, sections 1(3)(a), (b) and (f); 2000 Act, sections 1(2) and 1(4)(a)–(d).

58 2000 Act, section 1(5).

59 SHRC, Getting it Right? Human Rights in Scotland, 69 and 102–103; Mental Welfare Commission for Scotland, Visit and Monitoring Report – Intensive Psychiatric Care in Scotland 2015, March 2016, http://www.mwcscot.org.uk/media/315618/intensive_psychiatric_case_in_scotland_report_final.pdf (accessed August 23, 2016).

60 SHRC, Getting it Right? Human Rights in Scotland, 69.

61 Ibid., 102–3.

62 This was noted in the Scottish Government’s response to the Mental Health Bill Stage 1 Report; see ‘Mental Health (Scotland) Bill: Scottish Government Response to Stage 1 Report’, March 2015, 14–5, http://www.scottish.parliament.uk/S4_HealthandSportCommittee/SGDocs/Scottish_Government_response_-_Mental_Health_(Scotland)_Bill_-_Stage_1.pdf (accessed July 4, 2016).

63 Mental Welfare Commission for Scotland, ‘MSPs Briefing – Mental Health (Scotland) Bill Stage 1 Debate, 12 March 2015’, March 2015, http://www.mwcscot.org.uk/about-us/latest-news/msps-briefing-on-mental-health-(scotland)-bill/ (accessed July 4, 2016).

64 Committee on the Rights of Persons with Disabilities, General Comment No. 1 Article 12, para. 17.

65 CRPD General Comment No 1 , para. 29 (i).

66 2000 Act, sections 15 and 16.

67 Scottish Government, Adults with Incapacity (Scotland) Act 2000 Code of Practice for Continuing and Welfare Attorneys (Edinburgh: Scottish Government, March 2011), para. 2.18.

68 Jill Stavert, ‘The Exercise of Legal Capacity, Supported Decision-Making and Scotland’s Mental Health and Incapacity Legislation’, Laws 4 (2015): 305.

69 2003 Act, section 275(1).

70 Jacquie Reilly and Jacqueline M. Atkinson, ‘The Content of Mental Health Advance Directives: Advance Statements in Scotland’, International Journal of Law and Psychiatry 33 (2010): 119.

71 2003 Act, section 276.

72 Scottish Government, Limited Review of the Mental Health (Care and Treatment) (Scotland) Act 2003: Report (Edinburgh: Scottish Government, 2009), 8.

73 Fiona Morrissey, ‘Advance Directives in Mental Health Care: Hearing the Voice of the Mentally Ill’, Medico-Legal Journal of Ireland 16, no. 1 (2010): 23.

74 2003 Act, section 276A.

75 2003 Act, section 276B.

76 2003 Act, section 276C.

77 The Essex Autonomy Project, Three Jurisdictions Report, Towards Compliance with CRPD Art.12 in Capacity/Incapacity Legislation across the UK, June 2016, http://autonomy.essex.ac.uk/eap-three-jurisdictions-report (accessed August 23, 2016).

78 Ibid., Recommendation 1, 1.

79 To this end, it is worth noting that the Sheriffdom of Lothian and Borders in any event now requires this in practice. See Sheriffdom of Lothian and Borders Practice Note No. 1 of 2016: Applications under the Adults with Incapacity (Scotland) Act 2000, paras (g) and (k), https://www.scotcourts.gov.uk/rules-and-practice/practice-notes/sheriff-court-practice-notes-(civil) (accessed March 8, 2017).

80 McSherry, Mental Health and Human Rights.

81 Lee and Horndrup, ‘Interview with Professor Paul Hunt’, 57.

82 SHRC, Getting it Right? Human Rights in Scotland, 12.

83 Mental Welfare Commission and SHRC, Human Rights in Mental Health Care in Scotland: A Report on Progress Towards Meeting Commitment 5 of the Mental Health Strategy for Scotland: 2012–2015, September 2015, http://www.mwcscot.org.uk/media/240757/human_rights_in_mental_health_care_in_scotland.pdf

84 McSherry and Wilson, ‘Concept of Capacity in Australian Mental Health Law Reform’, 67.

85 Scottish Government, A Fairer Scotland for Disabled People – Our Delivery Plan to 2021 for the United Nations Convention on the Rights of Persons with Disabilities, December 2016, http://www.gov.scot/Resource/0051/00510948.pdf

86 Ibid., 14.

87 Ibid.

88 Ibid., 39.

89 See, in particular, CRPD, art. 4(3).

90 Scottish Government, ‘Mental Health Funding’, news release, 12 January 2016, http://news.scotland.gov.uk/News/Mental-health-funding-2139.aspx (accessed August 23, 2016).

91 Information Services Division Scotland, Scottish Health Service Costs, 2015 as cited in SAMH, Mental Health Strategy Response, 2016, https://www.samh.org.uk/media/471919/mental_health_strategy_submission_from_samh_september2016.pdf.

92 Ibid.

93 Scottish Government, SPICe Briefing – Mental Health in Scotland, May 2014, 4, http://www.parliament.scot/ResearchBriefingsAndFactsheets/S4/SB_14-36.pdf.

94 SHRC, Getting it Right? Human Rights in Scotland, 99.

95 Scottish Government, SPICe Briefing – Mental Health in Scotland, 12–13.

96 SHRC, Getting it Right? Human Rights in Scotland, 15.

97 There is now an Independent Living Fund for Scotland.

98 Committee on Economic, Social and Cultural Rights, Concluding Observations on the Sixth Periodic Report of the United Kingdom and Northern Ireland, E/C.12/GBR/CO/6, para. 18.

99 Ibid., para. 19. See also, regarding the impact of social security cuts on people with disabilities in the UK, Committee on the Rights of Persons with Disabilities, Inquiry Concerning the United Kingdom of Great Britain and Northern Ireland Carried out by the Committee under Article 6 of the Optional Protocol to the Convention, CRPD/C/15/R.2/Rev.1, 6 October 2016.

100 Committee on Economic, Social and Cultural Rights, Concluding Observations, para. 17–19.

101 SHRC, Getting it Right? Human Rights in Scotland, 12.

102 In the UK’s CRPD State report the role of the focal points was described as follows:

ODI and the devolved government focal points help government policy departments that are responsible for the delivery of Convention rights in their policy areas, to ensure that they are aware of the obligations of the Convention, and consider them as they develop new legislation, policies and programmes. (Committee on the Rights of Persons with Disabilities, Initial Reports of States Parties Due in 2011, United Kingdom of Great Britain and Northern Ireland (24 November 2011), 3 July 2013, UN Doc. CRPD/C/GBR/1, para. 349)

103 CRPD, art. 33(2).

104 UK Independent Mechanism, Monitoring the Implementation of the UN Convention on the Rights of Persons with Disabilities – The UK Independent Mechanism List of Issues Interim Report, December 2014, p. 26, https://www.equalityhumanrights.com/sites/default/files/monitoring_the_implementation_of_the_uncrpd2.pdf (accessed August 23, 2016).

105 Ibid.

106 Ibid.

107 Joint Committee on Human Rights, Implementation of the Right of Disabled People to Independent Living, HL Paper 257, February 2012, p. 36, http://www.publications.parliament.uk/pa/jt201012/jtselect/jtrights/257/257.pdf (accessed August 23, 2016).

108 Scottish Government, Consultation on The Scottish Law Commission Report on Adults with Incapacity (Edinburgh: Scottish Government, 2015), https://consult.scotland.gov.uk/integration-partnerships/report-on-adults-with-incapacity (accessed August 23, 2016).

109 Scottish Government, Mental Health in Scotland – A 10 Year Vision (Edinburgh: Scottish Government, 2016), https://consult.scotland.gov.uk/mental-health-unit/mental-health-in-scotland-a-10-year-vision/user_uploads/440179_mental_p2.pdf (accessed September 1, 2016).

110 Scottish Association for Mental Health, Talking It Out – Psychological Therapies in Scotland, https://www.samh.org.uk/media/465573/talkingitout.pdf (accessed August 23, 2016).

111 The UK, for example, has been criticised by the UN Committee on Economic, Social and Cultural Rights for regarding socio-economic rights as mere values and not incorporating them, so that they are legally enforceable, into domestic laws. See Committee on Economic, Social and Cultural Rights, Consideration of Reports Submitted by States Parties Under Articles 16 and 17 of the Covenant, Concluding Observations (United Kingdom of Great Britain and Northern Ireland), 22 May 2009, UN Doc. E/C.12/GBR/CO/5, para. 13.

112 Eilionóir Flynn, in Disabled Justice: Access to Justice and the UN Convention on the Rights of Persons with Disabilities (Ashgate, 2015), strongly reinforces the fact that equal and non-discriminatory access to the justice system is integral to the achievement of equal rights for persons with disabilities.

113 CRPD, Art 4(3).

114 WHO, Mental Health Action Plan 2013/2020, 2013, Geneva; see, for example, para. 51, 57 and 62.

115 SHRC, Getting it Right? Human Rights in Scotland, 32.