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Abstract
I argue that the right to mental health should be viewed as a universal human right and that the United Nations Convention on the Rights of Persons with Disabilities (CRPD), as an international standard, protects it because it places a positive duty on states to actively promote the mental well-being of its citizens for the purpose of preserving their dignity and allowing them to flourish. I begin by discussing the discrimination that persons with psychiatric disabilities experience, including the systemic barriers and lack of mental health resources which impact the quality of their lives. Because flourishing and dignity are interconnected, protecting the rights of persons with mental illnesses is important because the possession of good mental health provides a firm basis for securing other basic human rights. Consequently, I maintain that the main advantage of a human rights approach for securing the right to mental health is that human rights is the only source of law which is accepted without qualification. I then look at three objections against the CRPD and the idea of the universal right to mental health as a socio-economic entitlement. Finally, I demonstrate how the CRPD can overcome these criticisms and offer suggestions on how states can implement the CRPD into their domestic mental health legislation.
Acknowledgements
Earlier drafts of this article were presented at the York Institute for Health Research's (YIHR) Student Symposium: Health’s Borders at York University in Toronto (28 April 2016), the Topics in Global Justice: Agency, Power, Policy Conference at the Centre for the Study of Global Ethics at the University of Birmingham (26–27 May 2016), and the Canadian Section of the International Association for Philosophy of Law and Social Philosophy (CS-IVR) at the University of Calgary (28 May 2016). I would like to thank all the participants, and conference organisers, for their great feedback and questions. I would also like to thank the anonymous reviewers for their helpful suggestions, used in revising this article. Finally, I would like to thank Michael Giudice for his encouragement and for taking the time to read earlier drafts of this article.
Disclosure statement
No potential conflict of interest was reported by the author.
Notes on contributor
Andrew Molas is a PhD candidate in Philosophy at York University in Toronto. He earned his Honours Bachelor of Arts in English and Philosophy at the University of Toronto, and he earned his Master of Arts in Philosophy at York University in Toronto. His research focuses on the role that empathy plays in our engagement with persons living with mental health issues. More broadly, he works on the ethics of care as a normative theory and its application within interpersonal and professional contexts.
Notes
1. The United Nations, Convention on the Rights of Persons with Disabilities (2006). http://www.un.org/disabilities/convention/conventionfull.shtml
2. Jonathan Kenneth Burns, ‘Mental Health and Inequity: A Human Rights Approach to Inequality, Discrimination, and Mental Disability’, Health and Human Rights 11, no. 2 (2009): 21.
3. Samantha Battams and Julie Henderson, ‘The Physical Health of People With Mental Illness and “The Right to Health”’, Advances in Mental Health 9, no. 2 (2010): 117.
4. T.W. Harding, ‘Human Rights Law in the Field of Mental Health: A Critical Review’, Acta Psychiatrica Scandinavica 101, no. 1 (2000): 26.
5. Lawrence O. Gostin, ‘Human Rights in Mental Health: A Proposal for Five International Standards Based upon the Japanese Experience’, International Journal of Law and Psychiatry 10, no. 1 (1987): 364–5.
6. Eric Rosenthal and Clarence J. Sundram, ‘International Human Rights in Mental Health Legislation’, New York Law School Journal of International and Comparative Law 21, no. 1 (2001–2002): 472.
7. Lance Gable, ‘Mental Disability’, in The Right to Health: Theory and Practice, ed. Gunilla Backman (Lund: Studentlitteratur, 2012), 232.
8. The World Health Organization (WHO), Mental Health Atlas 2014, 34.
9. Burns, ‘Mental Health and Inequity’, 21. See also Harry Minas, ‘The Centre for International Mental Health Approach to Mental Health System Development’, Harvard Review of Psychiatry 20, no. 1 (January–February 2012): 37.
10. Gunilla Backman, ‘Health Systems and the Right to Health’, in The Right to Health: Theory and Practice, ed. Gunilla Backman (Lund: Studentlitteratur, 2012), 125.
11. WHO, Mental Health Atlas 2014, 31.
12. Keyes notes that, in 1999, the economic burden which emerged in the United States as a result of mental illness was around $160 billion (and around $40 billion for depression, alone), making it the third most expensive health-related expenditure in the country. See Corey L.M. Keyes, ‘Promoting and Protecting Mental Health as Flourishing – A Complementary Strategy for Improving National Mental Health’, American Psychologist (February–March 2007): 97.
13. WHO, Mental Health Atlas 2011, cited in Backman, ‘Health Systems and the Right to Health’, 125.
14. Battams and Henderson, ‘The Physical Health of People with Mental Illness’, 120.
15. Gable, ‘Mental Disability’, 240.
16. Dinesh Bhugra, Jonathan Campion, Antonio Ventriglio, and Sue Bailey, ‘The Right to Mental Health and Parity’, Indian Journal of Psychiatry 57, no. 2 (April–June 2015): 117.
17. WHO, Mental Health Atlas 2011, cited in Backman, ‘Health Systems and the Right to Health’, 125. Although some progress has been made globally, the Mental Health Atlas 2014 reports that only 51% of WHO member states (99 countries in total) have standalone mental health legislation. Ideally, the goal would be for all countries to have mental health legislation in place and, hopefully, have ratified the CRPD, and the continuous international monitoring of states can make this possible.
18. Harding, ‘Human Rights Law in the Field of Mental Health’, 25, 26, 29.
19. Ibid., 27. Although the focus of Harding's article is the UN Principles for the Protection of Persons with Mental Illness (1991), also known as the ‘MI Principles’, these points are also applicable to the CRPD. However, unlike the MI Principles, which lacked various enforceability mechanisms at the time, the CRPD does possess the status of an international treaty, thereby making it legally enforceable and overall much stronger as an international standard. If anything, the creation of the CRPD demonstrates the evolution of internationally recognised standards for protecting the right to health for the world's population.
20. Lawrence O. Gostin, ‘Beyond Moral Claims: A Human Rights Approach in Mental Health’, Cambridge Quarterly of Healthcare Ethics 10, no. 1 (2001): 265; Lawrence O. Gostin, ‘Human Rights of Persons with Mental Disabilities – The European Convention of Human Rights’, International Journal of Law and Psychiatry 23, no. 2 (2000): 158. On a related note, Sulmasy argues that human rights can either be universal, applicable to everyone, and ‘must always and everywhere be respected, binding individuals never to transgress them’ or they can be local and stipulative meaning that they ‘can be granted by various societies according to their particular means and particular conditions'. See David P. Sulmasy, ‘Dignity, Rights, Health Care, and Human Flourishing’, in Autonomy and Human Rights in Health Care: An International Perspective, ed. David N. Weisstub and Guillermo Diaz Pintos (The Netherlands: Springer, 2008), 26. For the purposes of this article, I maintain that the right to mental health should be viewed as a universal human right, which places obligations on the state to uphold them. I argue that the CRPD can help ensure that states are upholding this universal human right.
21. Gostin, ‘Human Rights of Persons with Mental Disabilities’, 126; Gostin, ‘Beyond Moral Claims’, 264.
22. Gostin, ‘Beyond Moral Claims’, 271. Even though there is some resistance to reform mental health law and policy in developed countries with democratic and constitutional systems of their own, Gostin notes that a human rights approach to mental health is especially important for developing nations because ‘they may provide the only genuine safeguard against abuse of persons with mental disabilities ostensibly based on political, social, or cultural justifications' (ibid., 264).
23. Michael L. Perlin, ‘International Human Rights Law’, in A Prescription for Dignity: Rethinking Criminal Justice and Mental Disability Law (Burlington, VT: Ashgate Publishing Company, 2013), 55.
24. Ibid., 55.
25. Penny Weller, ‘The Right to Health – The Convention on the Rights of Persons with Disabilities’, Alternative Law Journal 35, no. 2 (2010): 66.
26. Battams and Henderson, ‘The Physical Health of People with Mental Illness’, 119, emphasis added.
27. Lawrence O. Gostin, Global Health Law (London: Cambridge University Press, 2014), 391, 251.
28. Samantha Battams and Julie Henderson, ‘The Right to Health, International Human Rights Legislation and Mental Health Policy and Care Practices for People with Psychiatric Disability’, Psychiatry, Psychology and Law 19, no. 3 (2012): 315.
29. Burns, ‘Mental Health and Inequity’, 21; Weller, ‘The Right to Health’, 67.
30. Bernadette McSherry, ‘Mental Health Laws: Where To From Here?’, Monash University Law Review 40, no. 1 (2014): 197; Lisa Forman and Sivan Bomze, ‘International Human Rights Law and the Right to Health: An Overview of Legal Standards and Accountability Mechanisms’, in The Right to Health: Theory and Practice, ed. Gunilla Backman (Lund: Studentlitteratur, 2012), 41.
31. Battams and Henderson, ‘The Physical Health of People with Mental Illness’, 120; Battams and Henderson, ‘The Right to Health’, 315.
32. McSherry, ‘Mental Health Laws’, 193.
33. Ibid., 177; Perlin, ‘International Human Rights Law’, 54.
34. McSherry, ‘Mental Health Laws’, 195.
35. Ibid., 180, 182.
36. McSherry notes that only states that have ratified the CRPD are legally bound to uphold the provisions outlined in it, and even if a state does adopt the articles set out in the CRPD that state must still implement those articles into its domestic mental health legislation in order for them to have any kind of impact and improve the lives of persons with psychiatric disabilities (ibid., 179). It is interesting that the United States is one of the few countries that have not ratified the CRPD. See Perlin, ‘International Human Rights Law’, 60; Gostin, Global Health Law, 250. Part of the reason why is because of the fear that it would damage American sovereignty by ratifying this international convention (https://piercenahigyan.com/2015/05/21/why-the-u-s-refuses-to-ratify-the-u-n-disabilities-treaty/).
37. Gostin, ‘Human Rights in Mental Health’, 357.
38. John Tobin, The Right to Health in International Law (New York: Oxford University Press, 2012), 69; Battams and Henderson, ‘The Right to Health’, 319.
39. Lawrence O. Gostin, ‘At Law: International Human Rights Law and Mental Disability’, The Hastings Center Report 34, no. 2 (March–April 2004): 12.
40. Tobin, The Right to Health in International Law, 60–1. However, as Tobin points out, proponents of a libertarian system would not necessarily reject the idea of a ‘right to health’ entirely. Rather than viewing the right to health as a positive duty placed on a state – which results in an active involvement in the lives of its citizens and their health – under a libertarian system, the right to health could be understood more as a preventative measure put forth by the state. That is to say, rather than actively providing resources to help treat persons with psychiatric disabilities, the only positive duty a state would have is ‘an obligation to provide protection against threats to the health of an individual that were beyond his or her capacity to control’ (ibid., 61). However, given the social model of disability, I believe that the state's obligation would have to extend to help eliminate the systemic barriers which discriminate against those with mental health issues.
41. Ibid., 61.
42. Backman, ‘Health Systems and the Right to Health’, 124.
43. Rosenthal and Sundram, ‘International Human Rights in Mental Health Legislation’, 483.
44. Forman and Bomze, ‘International Human Rights Law and the Right to Health', 55; Piers Gooding and Eilionóir Flynn, ‘Querying the Call to Introduce Mental Capacity Testing to Mental Health Law: Does the Doctrine of Necessity Provide an Alternative?’, Laws 4, no. 1 (June 2015): 263; Gostin, Global Health Law, 257.
45. Forman and Bomze, ‘International Human Rights Law and the Right to Health’, 54.
46. Battams and Henderson, ‘The Right to Health’, 124; Forman and Bomze, ‘International Human Rights Law and the Right to Health’, 49; Backman, ‘Health Systems and the Right to Health’, 129.
47. Rosenthal and Sundram, ‘International Human Rights in Mental Health Legislation’, 495; Gostin argues that one of the reasons why the right to mental health lacks practical significance is because its definition it too vague, and as a result, ‘it is too difficult to ascertain what is expected of a State to fulfill its obligation to protect the right’ (Gostin, ‘Beyond Moral Claims: A Human Rights Approach in Mental Health’, 271). His proposed definition – which echoes the idea of progressive realisation – is that it is the duty of the state ‘within the limits of its available resources, to ensure the conditions necessary for the mental health of individuals and populations' (ibid., 271).
48. Tobin, The Right to Health in International Law, 69.
49. Gostin, ‘Beyond Moral Claims’, 271–2.
50. Tobin, The Right to Health in International Law, 69.
51. Anand Grover, ‘Foreword’, in The Right to Health: Theory and Practice, ed. Gunilla Backman (Lund: Studentlitteratur, 2012), 12; Rosenthal and Sundram, ‘International Human Rights in Mental Health Legislation’, 495.
52. Rosenthal and Sundram, ‘International Human Rights in Mental Health Legislation’, 535.
53. Forman and Bomze, ‘International Human Rights Law and the Right to Health’, 64; Gooding and Flynn, ‘Querying the Call to Introduce Mental Capacity Testing to Mental Health Law’, 263. As Backman argues, without the right to health in place, health systems ‘run the risk of being impersonal, top-down, and dominated by experts' but when the right to health is recognised and implemented in a state's health system ‘the well-being of the individual, communities, and populations is placed at the centre’ and that is the best way to respect the dignity of persons with mental illnesses (Backman, ‘Health Systems and the Right to Health’, 122).
54. Battams and Henderson, ‘The Physical Health of People with Mental Illness’, 120.
55. Sulmasy, ‘Dignity, Rights, Health Care, and Human Flourishing’, 25; Kleinig and Evans, ‘Human Flourishing, Human Dignity, and Human Rights’, 559–60; Perlin, ‘International Human Rights Law’, 99–100.
56. Sulmasy, ‘Dignity, Rights, Health Care, and Human Flourishing’, 27.
57. Kleinig and Evans, ‘Human Flourishing, Human Dignity, and Human Rights’, 558, 563.
58. Ibid., 563.
59. Sulmasy, ‘Dignity, Rights, Health Care, and Human Flourishing’, 34.
60. Ibid., 34; Kleinig and Evans, ‘Human Flourishing, Human Dignity, and Human Rights’, 544.
61. Gostin, ‘Beyond Moral Claims’, 270.
62. Tobin argues that the libertarian conception of the right to health is quite limited because, under a libertarian theory of justice, the right to health ‘would exclude an obligation to prevent or provide medical care for natural lottery conditions' as well (Tobin, The Right to Health in International Law, 62).
63. Keyes, ‘Promoting and Protecting Mental Health as Flourishing’, 97–8. In fact, Keyes argues that, in terms of flourishing, mentally healthy adults ‘functioned superior to all others in terms of the fewest workdays missed … lowest level of health limitations of activities of daily living, the fewest chronic physical diseases and conditions, the lowest health care utilization, and the highest levels of psychosocial functioning’ (100). From an economic perspective, then, given the multiple benefits that mentally healthy individuals seem to possess, it is in a state's best interests to want to ensure that its population remains healthy. But from a moral perspective, if we want to treat persons with psychiatric disabilities with dignity, we must also help promote their flourishing and that requires us to secure the right to mental health.
64. Gostin, ‘Human Rights in Mental Health’, 356.
65. Keyes, ‘Promoting and Protecting Mental Health as Flourishing’, 95.
66. Gostin, ‘Beyond Moral Claims’, 271–2; Gostin, ‘Human Rights in Mental Health’, 357.
67. Shekhar Saxena and Yutaro Setoya, ‘World Health Organization's Comprehensive Mental Health Action Plan 2013–2020’, (Editorial) Psychiatry and Clinical Neurosciences 68, no. 1 (2014): 585.