From avoidance to acceptance: Mental health and the role of human rights in Europe.

Jill Stavert, Lecturer in law at Napier University, reviews the treatment of mental health as a social and political issue and identified challenges still to be met.

- as featured in SCOLAG, Legal Journal. We thank the author and publishers for their permission to reproduce this article.

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SCOLAG Legal Journal, June 2007, Issue 356, pages 119 - 125
 
Jill Stavert, Lecturer in law at Napier University, [1] Mental health, [2]   often shrouded in stigma and discrimination, was long neglected as an area worthy of promotion and protection through human rights.
 
However, attitudes are gradually changing with mental health issues on the ascendancy. Indeed, mental health is not something which can be ignored. The European Union Green Paper entitled Improving the mental health of the population: Towards a strategy on mental health for the European Union for example states that more than 27% adult Europeans are likely to suffer from at least one form of mental illness during any one year [3] and that by 2020 depression is expected to be the highest ranking cause of disease in the developed world. [4]
 
There has been a growing recognition that persons who suffer from mental ill health must be protected from discrimination and abuse where they come into contact with the criminal justice system and otherwise. The World Health Organization and the European Union in the aforementioned Green Paper both, for example, recently emphasised the importance of protecting the rights of those suffering from mental ill-health and the importance of ensuring and maintaining social inclusion for this vulnerable group of persons. In December 2006, at last, the United Nations adopted its Convention on the Protection and Promotion of the Rights and Dignity of Persons with the Disabilities. Amongst other things, this treaty specifically relates to those suffering from mental or intellectual impairment [5] and has been a welcome development.  Moreover, importantly given the focus of this article, the Council of Europe has sought, through the European Convention on Human Rights (ECHR) and European Social Charter (ESC), to achieve this to some extent. The European Court of Human Rights has, in particular over the last twenty five years developed a body of case law that affirms that the ECHR does indeed contain rights and standards relevant to mental health.
 
Additionally, as mental health matters are increasingly finding their way onto national, European and international agendas, the term "mental health", though sometimes difficult to define with precision, has been taken to include not only mental ill health but also the maintenance of good mental health in general. [6]
 
Associated with the realisation that those suffering from mental health problems possess rights which are worthy of protection, is also the notion of social inclusion. Currently predominant "Western" clinical opinion holds that, insofar as it is possible, and not contraindicated by the need to protect the individual or public, the vast majority of those suffering from mental ill health and disability should be treated and supported in the community. Indeed, we are today arguably moving past even the development of ECHR (civil) rights associated with mental health into a "new legalism". [7] In other words, such legalism linking traditional rights of due judicial process to an entitlement to the least restrictive, but adequate, manner of treatment. [8]
 
This trend can, for example, be clearly seen in the UK. Over the last century there has been a shift from a mainly institutional approach to an emphasis  on "care in the community", together with the recognition that people suffering from mental health problems form a vulnerable group worthy of protection under the law. This gradual, and more liberal, approach can be discerned from the Percy Commission Report in 1957, [9] through the Mental Health Act 1959 and Mental Health (Scotland) Act 1960, the Mental Health Act 1983 and the Mental Health (Scotland) Act 1984 to, finally, the Mental Health (Care and Treatment) (Scotland) Act 2003 and the Mental Health Bill currently being considered by the UK Parliament.
 
In Western liberal democracies at least, protection of vulnerable members of society is generally seen as being best achieved through the assignment of rights, human rights, such rights being incorporated into the law and enforceable through the courts. Given the historical emphasis on civil and political rights in Northern Europe it is unsurprising that civil rights associated with mental illness, namely those relating to detention and conditions of treatment, were the first to be recognised by the European Court of Human Rights and also within the UK. Subsequently, and rather less swiftly, has emerged an appreciation of those civil, social and economic rights necessary to ensure adequate treatment and support outside the confines of institutions.  That being said,  whilst the development of human rights associated with mental health has naturally been very welcome, it nevertheless has not yet appeared to go far enough. In order to illustrate this assertion, it is necessary to look at some key European Court judgments in which those rights have indeed been recognised and consider the adequacy of their transposition at national level.
 
Development of a "human rights for mental health" ethos in Strasbourg
 
European Court of Human Rights decisions have affirmed and clarified that the detention and treatment, and guardianship, of those suffering from mental health difficulties are areas in which human rights are applicable. Most notably these include the rights set out in Articles 3[10] , 5[11] and 8. [12] It also includes Article 6 where procedural aspects of review of clinical or judicial decisions are concerned.
 
a. Gone but no longer forgotten: Article 5 and detention
 
Under Article 5(1), the right to liberty may indeed be denied, "in accordance with a procedure prescribed by law", in the case of "persons of unsound mind". [13] However, the Court has made it clear that the manner in which such denial is determined and extent of the denial is restricted. The first time we see the Court formally acknowledging that the Convention contains rights that may apply to those suffering from mental ill health is Winterwerp v Netherlands [14] in­ which it set out some minimum conditions relating to the detention of those suffering from "unsound mind".
  
In this case, the applicant was committed to, and detained in, a psychiatric hospital. He complained that he had not been given the opportunity to have his detention reviewed or given relevant information about his detention. The Court held that, amongst other things, Article 5(1) and (4) [15] had been violated. Importantly, it specified that, in order for such detention to be lawful under the Convention, the patient must be 'reliably shown' by 'objective medical experts' to be of 'unsound mind'. [16] The disorder must also be of a nature to justify detention and must persist throughout the period of detention. [17] Moreover, and crucially, the perimeters of mental illness should not be so broad as to include behaviour that simply does not conform to societal norms. [18]
 
On the face of it, these requirements are fairly broad and therefore allow state parties a certain amount of discretion. However, the Court went on to refine and expand on this in subsequent cases. It determined, for example, that a mentally disordered person should not be detained in prison without treatment because no hospital bed is available. To do so would constitute a breach of Article 5. In Aerts v Belgium [19] the applicant was charged with a criminal offence and the court assessed him to be mentally ill. However, despite being detained on therapeutic, not criminal, grounds, he was placed in a psychiatric wing of a prison. He complained to the Court of the inappropriateness of this and it concurred with him holding that the detention was indeed a violation of Article 5(1)(e). 
 
That a psychiatric patient must be released in timely fashion upon recovery, even where it is reasonable to stage release in the patient's or community's interests, was affirmed by the Court in Johnson v UK. [20] Here, the applicant was detained in Rampton Hospital under the Mental Health Act 1983 for an indefinite period following a conviction of actual bodily harm and diagnosis of mental illness. When it was eventually determined that he was no longer ill and requiring treatment a staged, conditional, discharge to a suitable hostel with supervision was proposed. There were, however, considerable delays in finding suitable accommodation. After several reviews by the Mental Health Review Tribunal, the applicant was given an absolute discharge in January 1993 but he had had to wait since June 1989 (when it was initially determined that he should be conditionally discharged) for this. The Court held that Article 5(1) had been breached owing to the delay in releasing him from detention and a lack of adequate safeguards to ensure this delay did not take place. This case can be distinguished from the more recent one of Kolanis v UK [21] where the Court found there to be no violation of Article 5(1) on the basis that although the applicant could be cared for in the community she was still suffering from schizophrenia and required supervision. A violation of Article 5(4) was, however, found owing to delays in reviewing her continued detention.
 
Additionally, as with other forms of detention, the Court has held that there must be reasonably early and frequent reviews of a decision to detain a person suffering from mental ill health. This is obviously vital where detention is for an indefinite period as can often be the case with psychiatric patients. In E v Norway, [22] for example, where the applicant was convicted of several offences, diagnosed as being mentally ill and detained in a secure institution for an indefinite period, the Court held that the duration of the proceedings to review such detention was too long. They had lasted eight weeks.
 
The Court has also ruled that detention, justified on the common law ground of medical necessity, of an individual lacking the capacity to give valid consent violates Article 5.  In HL v United Kingdom [23] (the "Bournewood case") an autistic man, who lacked capacity to consent, was admitted informally to a hospital and treated under the doctrine of necessity because it was alleged by medical professionals to be in his best interests. When his carers sought his discharge this was refused on the basis that the clinical team considered it to be in his best interests to remain. The Court held there had been a violation of Article 5(1) and (4). The admission to hospital, under the common law of necessity, for treatment of a mental disorder of a person lacking capacity did not, it considered, contain the procedural safeguards required under Article 5. A highly relevant factor here was that the health professionals treating him had exercised complete and effective control over his treatment and he was not free to go. It was accepted by the Court that adequate information existed to justify his initial detention and continued confinement at the hospital. However, the deprivation of liberty was unlawful because there were no procedural safeguards to protect him against arbitrary deprivation of liberty. The possibility that he could later, through judicial review or habeas corpus, review the detention was insufficient to satisfy the requirements of Article 5(4) given that they did not allow for incorrect diagnoses and judgments.[24]
 
b. Compulsory treatment and the interplay between Articles 5, 8 and 3
 
Whilst the Court has, on occasion, held that it has amounted to "inhuman or degrading treatment or punishment", [25] it has not yet gone so far as to hold that the treatment of detained persons suffering from mental illness has amounted to torture and thus a breach of Article 3 in this respect. In addition, Article 8(1) may give the right to respect for private and family life, home and correspondence, but Article 8(2) does permit the limitation of this right on grounds of, amongst other things, protection of health. That being said, there is a vital interplay between the rights specified in these two Articles and in Article 5. Nowhere is this arguably more evident than in cases where the question of compulsory treatment on grounds medical necessity has arisen. [26] Medical necessity alone has been considered by the Court to be insufficient to justify detention owing to the relevance of the rights in Article 8. [27] Here, it stated that:- "The Court recalls that even a minor interference with the physical integrity of an individual must be regarded as an interference with the right to respect for private life under Article 8, if it is carried out against the individual's will ..." [28]
This is especially acute where cruel and inhuman treatment may also potentially be an issue even in the light of Article 8(2) exception. Indeed, in Bensaid v UK [29] the Court, whilst holding that there had been no violation of Article 8(1) and that not every act which adversely affects moral or physical integrity will amount to a breach of Article 8, [30] nevertheless affirmed that "Mental health must also be regarded as a crucial part of private life associated with the aspect of moral integrity." [31] Moreover, the Court in Herczegfalvy v Austria [32] accepted that, as a general rule, therapeutic necessity cannot be regarded as a breach of Article 3 and that it is for medical professionals:-
"to decide, on the basis of the recognised rules of medical science, on the therapeutic methods to be used, if necessary by force, to preserve the physical and mental health of patients who are entirely incapable of deciding for themselves and for whom they are therefore responsible ..." [33]
 
and that        
 
"The established principles of medicine are admittedly in principle decisive in such cases; as a general rule, a measure which is a therapeutic necessity cannot be regarded as inhuman or degrading." [34]
 
However, it made it equally clear that the requirements of Article 3 were not to be entirely overridden by medical necessity and that "The Court must nevertheless satisfy itself that the medical necessity has been convincingly shown to exist." [35]   That being said, whilst those involved in the care and treatment of persons suffering from mental ill health may have genuine regard to the provisions of Article 3, prevailing medical opinion is not uniform over time or, necessarily, at any one time between states. Fifty years ago neurosurgery for mental disorder was used much more indiscriminately in the UK than it is today and across Europe  electro-convulsive therapy (ECT) nowadays appears to, in general, be used rarely and only then with consent and in its "modified" form (in other words, under anaesthetic with muscle relaxants).  But, this is not always the case. Evidence has also been found of the occasional use of "unmodified" ECT in Romania and Bulgaria [36] and ECT equipment in other countries may be outmoded or inadequate. [37] Moreover, the authorities in some states make use of cage and net beds as a method of restraint and containment.[38]
Notwithstanding this, we should take some comfort at least from the fact that the Court is prepared to acknowledge that civil human rights standards are applicable in the field of mental health. Of course, for these standards to be truly effective, however, they need to be incorporated or transposed into national laws.
 
The development of a pragmatic "human rights for mental health" ethos in the UK?
 
a. Rights and reality: Policy and precedent
 
As mentioned, there has been a shift in the UK in clinical opinion, supported by governmental policy, away from mainly institutional care of those suffering from mental ill health to a focussing on a community-situated approach. Alongside this has been recognition that the area of mental health is no longer one which should be bypassed in terms of human rights and protection of these rights by law. This has been affirmed by case law and, of course, reinforced through the enactment of the Human Rights 1998.  Of course, it would be true to say that such protection is far from complete and the community-based approach has faced many difficulties, not least through a lack of resources. There is also the thorny issue of balancing the rights and well-being of those suffering from mental ill health with public safety.
 
Indeed, the need for this balancing act was evident when the UK Government was forced to concede that its community care policy had certain failings[39] and its resultant White Paper Reforming the Mental Health Act in 2000 [40] ultimately paved the way for the controversial Mental Health Bill currently being considered by the UK Parliament.[41] Similarly, in Scotland, this has been reflected in the Scottish Executive Policy Statement Renewing Mental Health Law in 2001,[42] and Mental Health (Care and Treatment) (Scotland) Act 2003,[43] in response to the Millan Committee Report[44] on reform.
 
The UK courts have also had to contend with a number of legally ambiguous situations involving the rights of individual mental ill health sufferers' rights: public safety and compulsory treatment.
 
i.   Public safety vs  individual rights
 
In relation to public safety, the need to balance the State's duty, on the one hand, to protect citizens' lives under Article 2 of the ECHR and, on the other, uphold the individual's right to liberty under Article 5 has had to be addressed. Previously - and this is still the case with the Mental Health Act 1983 until the new Bill is enacted - those suffering from an untreatable mental disorder were, upon a strict interpretation of the both English and the Scottish Acts, entitled to be discharged from secure hospitals. When this occurred in Scotland, following a ruling permitting the discharge of Noel Ruddle, a psychopath who still presented a danger to the public, from Carstairs Hospital, the public outcry resulted in the Scottish Parliament passing the Mental Health (Public Safety and Appeals) (Scotland) Act 1999[45] to prevent this occurring in the future. When section 1 of this Act was challenged as being incompatible with Article 5 of the ECHR in A v Scottish Ministers[46] the Inner House of the Court of Session, adopting an approach of viewing the reasonableness of the restriction of an individual's rights, rather than first considering the individual's rights, held that, here, the public interest outweighed that of the individual's right to liberty.
 
ii. Article 3 and compulsory treatment: Damned if you do, damned if you don't
 
Since the enactment of the Human Rights Act 1998 UK case law has also highlighted the dilemma surrounding compulsory treatment. On the one hand, exceptionally, non-consensual treatment of psychiatric patients may be permitted although the intervention of the courts will be necessary here, particularly where there are differing opinions on diagnosis. In R (on the application of Wilkinson) v RMO, Broadmoor Hospital Authority,[47] , in refusing  treatment for psychotic symptoms, the applicant argued that the ECHR only allowed non-consensual treatment of incapacitated patients where it is necessary to protect others from serious harm or to ensure the patient's safety. The Court disagreed with this argument but it did agree that where there was differing psychiatric opinion then judicial review is appropriate.
Moreover, Article 3 ECHR may be relevant where a patient is treated without their consent and obiter remarks were made that there was a strong case for not treating patients who refused consent. This created something of a quandary because, equally, failure to treat a treatable and serious mental disorder a patient may arguably potentially result in a breach of Article 3![48]   However, subsequently in R (on the application of N) v M,[49] which also involved the refusal of anti-psychotic treatment, the court held that non-consensual treatment could take place where it could be convincingly illustrated that the patient was suffering from a treatable illness and that the proposed medical treatment was necessary.
 
The UK courts have thus apparently, though ever mindful of the provisions of the Human Rights Act, taken a pragmatic approach when interpreting cases involving the civil rights of persons with mental health difficulties. This pragmatism is also evident in the Mental Health (Care and Treatment) (Scotland) Act 2003.
 
b.      The Mental Heath (Care and Treatment) (Scotland) Act 2003
 
This article does not seek to provide an in-depth description or analysis of the 2003 Act[50] but, from an ECHR perspective, a few of its provisions are worthy of note. It is additional testimony that, no doubt also heedful of the ECHR and the restrictions on its legislative competence under the Scotland Act 1998, the gradually expanding jurisprudence of the European Court of Human Rights in this area is having an effect at national level.
 
Firstly, the creation, under the Act, of the Mental Health Tribunal for Scotland[51] with the aim of providing, amongst other things, an independent and impartial service for decision making in relation to compulsory care and treatment. Again, importantly, the creation[52] of a right of access to independent advocacy exists for every person with a mental order and a commensurate duty also being placed on local authorities and the NHS to provide this service.[53]
 
Controversially, non-consensual neurosurgery for mental disorder is permitted under certain circumstances (subject to the approval of each individual case by the Court of Session).[54]   Additionally, a Compulsory Treatment Order[55] (CTO) may be made under the Act by the Mental Health Tribunal to compulsorily treat a patient although it must be specifically tailored to that particular patient's needs. CTOs must, however, be subject to an approved care plan and, whilst clinicians may initiate changes to that plan, the ultimate authority for this lies with the Tribunals which provides additional protection for vulnerable patients against over-zealous medical intervention.
Moreover, reinforcing the community care approach for those suffering from mental ill health, the 2003 Act provides for the application of care and treatment outside hospital. For instance, CTOs allow for the requirement that patients will attend out-patient treatment or for social services assistance.[56] However, also reflecting the need to be mindful of public safety, it also allows for measures to ensure CTOs are complied with. The responsible medical officer can, for example, arrange for the patient to be taken into custody if they do not comply.[57]   Provisions also exist to allow, amongst other things, emergency powers of treatment, entry and removal (from a public place to a place of safety) where necessary under sections.[58] However, short term detention (of up to 28 days and extendable by three days) certificates[59] may be appealed, by the patient or their named representative to the Tribunal.[60]    
 
The Act thus, as have the courts, evidently endeavoured to respond to Strasbourg direction in terms of civil rights as well as juggling the individual rights/public safety dilemma that "care in the community" presents. But, just how complete can we say that European standards and direction are when it comes to the recognition and protection of those human rights which are relevant to mental health?
 
Still an incomplete picture?
 
Despite advances in terms of the protection of the ECHR rights of those suffering from mental ill health, it must be acknowledged that these are only civil rights. This therefore only presents half the picture.
 
For community-based care and treatment, economic and social rights (for example, the right to work, adequate accommodation and healthcare) also need to be fully promoted and respected to ensure full integration into the community. Unfortunately, state promotion of these rights has tended to lag behind that of civil and political rights. Social and economic rights, despite the realisation in recent years that these should be given equal weight to civil and political rights,[61] are arguably not given the same priority as civil rights.
 
The Council of Europe has also been slower in pursuing this category of rights, particularly in relation to persons with disabilities. Article 15 of the European Social Charter does set out the social right to independence, social integration and participation in community life of those with disabilities (including mental and intellectual disabilities)[62] .
However, notwithstanding the fact that the notion that mental health and rights has been gathering momentum, the rights in Article 15 remain non-"core" rights. Clearly, there are practical and economic reasons for this. Being predominantly negative in character, civil rights generally do not require positive action on the part of the state but rather non-interference and can thus be implemented immediately and more readily. Implementation of economic and social rights, on the other hand, does require that positive steps be taken by the state, generally progressively and often including the allocation of substantial amounts of resources. Yet, insufficient funding is allocated to mental health expenditure.[63]
Even where a particular country's laws and constitutional structure ostensibly provide the means to seek respect for and protection of the rights of those with mental disabilities, the implementation of these is an entirely different matter.[64]   Council of Europe standards and national laws can thus only go so far and are inevitably subject to political influences and resources. Only those states that possess, and are prepared to allocate, the resources and relevant information will ensure that the implementation of these standards is other than illusory.[65] According to the EU Green Paper, the UK spends in the region of 12% of its total health expenditure on mental health and Luxembourg slightly under 14%, but Slovakia only 2% and the Czech Republic 3%, and France 5%.[66]
 
Whether the EU Charter on Fundamental Rights, if and when it becomes legally binding, with its equal emphasis on first and second generation rights, and which makes reference to responsibilities as well as rights, will bring about improved rights protection across the board on the basis that it is more appealing to those countries with Islamic and Marxist and socialist ideological backgrounds, remains to be seen.[67] It is, however, debateable.
 
For one thing, it is unwise to assume that the former Eastern Bloc countries have a common political, social and cultural tradition and possess similar economical situations.[68]   Western European states have also traditionally been reticent in practice about implementing a more "holistic" approach to human rights.[69] Moreover, the debate continues as to whether accession to the EU will bring about more widespread human rights observance in general within Member States.  The rulings in Carpenter, Schmidberger and Omega Spielhallen[70] are informative but the importance which the European Court of Justice will ultimately ascribe to fundamental rights is at present not completely clear.[71]
Some pessimism certainly exists on the issue of whether accession to the EU will result in better human rights respect and protection for those persons with mental disabilities in central and eastern European countries. Oliver Lewis, for example, writes that "Human rights are not the key priority for the largely economic European Union, despite its mantra of respecting the principles of liberty, democracy, respect for human rights and the rule of law".[72] On the other hand, possibly the fact that there is ostensibly greater reciprocity in terms of membership of the EU may assist with implementation.
 
Finally, one must acknowledge that although international or regional standards may exist and even if these are transposed into national law, the law itself has its limitations in terms of human rights protection and implementation. For example, not every aspect of institutional or community care may be covered (note the ambiguity connected with non-consensual treatment of voluntary patients, absence of laws implementing  rights connected with social inclusion of those suffering form mental illness). Moreover, rights and the laws designed to protect them are, of course, largely reactive; the individuals who seek to bring claims will have already suffered an alleged violation of their rights and be seeking redress. Human rights laws may therefore, arguably, not always be the most appropriate means by which to ensure that the best interests of those suffering from mental ill health are properly catered for. Indeed, although clearly there to protect such persons from abuse of clinical discretion, the long-standing debate continues that these laws may equally hinder proper clinical and professional discretion.[73]
Thus, whilst the law and, possibly, political and cultural attitudes throughout Europe may have increasingly been more receptive to the range of human rights necessary to protect the interest of those afflicted with mental ill health, whether there will be greater synergy remains to be seen.
 
Endnotes