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Title: Human Rights and Mental Health: Negative and Positive Obligations of States


1
Human Rights and Mental Health Negative and
Positive Obligations of States
  • Phil Fennell
  • Cardiff Law School

2
Human Rights and Mental Health
  • Three relationships
  • 1. Mental health policy affects human rights
  • 2. Human rights violations affect mental health
  • 3. Positive promotion of mental health and human
    rights are mutually reinforcing
  • Larry Gostin and Lance Gable 2004 Maryland Law
    Review 20-121 at 27.

3
International Human Rights Instruments
  • United Nations Principles for the Protection of
    Persons with Mental Illness 1991
  • United Nations Convention on the Rights of the
    Child 1991
  • United Nations Convention On The Rights Of
    Persons With Disabilities 2007
  • Persons with disabilities include those who have
    long-term physical, mental, intellectual or
    sensory impairments which in interaction with
    various barriers may hinder their full and
    effective participation in society on an equal
    basis with others.

4
International Human Rights Instruments
  • European Convention on Human Rights
  • Convention for the Protection of Human Rights and
    Dignity of the Human Being with regard to the
    Application of Biology and Medicine Convention
    on Human Rights and Biomedicine Oviedo Convention
    1997
  • Recommendation Rec(2004)10 of the Committee of
    Ministers to member states  concerning the
    protection of the human rights and dignity of
    persons with mental disorder.  

5
European Committee for the Prevention of Torture
  • The Council of Europe has established that
    treatment without consent should be based on law
    and only relate to strictly defined exceptional
    circumstances. The CPT Standards, Chapter Vl,
    para.41, http//www.cpt.coe.int/en/docsstandards.h
    tm.
  • Treatment without consent must therefore be based
    on clear grounds related to the health or safety
    of the patient or to the protection of others.

6
International Human Rights Instruments
  • World Health Organization, WHO Resource Book on
    Mental Health, Human Rights and Legislation Stop
    Exclusion Dare to Care (2005)

7
Article 5 of the European Convention on Human
Rights
  • No-one shall be deprived of his liberty unless
    the deprivation is carried out in accordance with
    a procedure prescribed by law, and the
    deprivation is necessary in a democratic society
    on one of a number of grounds.
  • Article 5(1)(e) specifies as one of the grounds
    unsoundness of mind

8
Article 5(1)(e)
  • States that deprivation of liberty will be lawful
    if necessary for the prevention of the spreading
    of infectious diseases, if the person is of
    unsound mind, an alcoholic, drug addict or
    vagrant provided it is carried carried out in
    accordance with procedures prescribed by law.
  • No need for conviction of criminal offence or
    other wrongdoing therefore the full Article 6
    criminal trial safeguards do not apply

9
Negative and Positive Obligations
  • The state is required to ensure that it does not
    deprive people of their liberty unlawfully or
    arbitrarily (Negative Obligation Winterwerp v
    the Netherlands (1979))
  • The state is required to ensure that private
    parties within its jurisdiction do not deprive
    people of their liberty unlawfully or arbitrarily
    (Positive Obligation Storck v Germany (2005)).

10
The European Court of Human Rights
  • In Herczegfalvy v Austria (1992) The situation
    of vulnerability and powerlessness of persons
    detained in psychiatric institutions requires
    special vigilance on the part of the authorities.

11
The Approach of the European Court of Human Rights
  • The Court has built a framework of rights around
    Article 5(1)(e) for mentally disordered people

12
The Winterwerp criteria
  • The wide power to detain on grounds of
    unsoundness of mind has been subject to limits
    specified in the case of Winterwerp v the
    Netherlands (1979).

13
The Winterwerp criteria
  • There must be objective medical evidence of a
    true mental disorder presented to a competent
    authority
  • The mental disorder must be of a nature or degree
    warranting confinement
  • There must be periodic review of the continued
    need for detention

14
Proportionality
  • To these must be added a fourth principle, that
    detention must be a proportionate response to the
    circumstances. (See Litwa v Poland) This is the
    so-called least restrictive alternative. It is
    reflected in the provision of the 1983 Act
    requiring the ASW making the application for
    detention to state that the treatment which the
    patient needs cannot be provided without
    detention.

15
Rights to Information and Review
  • Once a person has been deprived of their liberty,
    they must be notified of the fact of and reasons
    for their detention and of their rights to
    challenge it (Article 5(2)).
  • Most important, they have the right under Article
    5(4) to seek speedy review of the lawfulness of
    their detention before a court or tribunal which
    must have the power of discharge.

16
Summary Article 5
  • The negative obligation requires the state and
    its agents to ensure that it does not deprive
    people of their liberty unlawfully or arbitrarily
    (Winterwerp v the Netherlands (1979))
  • The positive obligation requires states to ensure
    that private parties within its jurisdiction do
    not deprive people of their liberty unlawfully or
    arbitrarily (Storck v Germany (2005)).
  • The positive obligation under Article 5(1) and
    5(4) requires states to ensure that where a
    patient could be discharged if suitable community
    support were made available, there is effective
    review in situations where provision is delayed
    Stanley Johnson v United Kingdom (1997) 27 EHRR
    296.

17
Article 2
  • Duty to pass on risk sensitive information to any
    person or hospital taking over the care of a
    mentally disordered person (Edwards v United
    Kingdom).
  • Duty of care owed to other in-patients.

18
Article 3
  • Prevention of torture or inhuman or degrading
    treatment
  • Treatment must reach minimum level of severity
    occasioning physical injury or recognised
    psychiatric injury.
  • In respect of a person deprived of his liberty,
    recourse to physical force which has not been
    made strictly necessary by his own conduct
    diminishes human dignity and is in principle an
    infringement of the right set forth in Article 3.

19
Article 3
  • Treatment of a mentally ill person may be
    incompatible with the standards imposed by
    Article 3 in the protection of fundamental human
    dignity, even though that person may not be able,
    or capable of, pointing to any specific
    ill-effects. (Keenan v United Kingdom)

20
R(N) v M and others 2003 1 WLR 562
  • Before court could give permission for treatment
    without consent had to be satisfied that the
    proposed treatment was both in the patients best
    interests and medically necessary for the
    purposes of Art 3
  • Had the treatment been convincingly shown to be
    medically necessary?

21
R(N) v M and others 2003 1 WLR 562
  • How certain is it that patient suffering from a
    treatable mental disorder?
  • How serious?
  • How much risk to others?
  • How likely is the treatment to alleviate?
  • What adverse effects are likely?
  • Treatment could not be medically necessary unless
    supported by a responsible body of medical
    opinion.

22
Article 3 and Medical Necessity
  • In Nevmerzhitsky v Ukraine (2003) and Ciorap v
    Moldova (2007) Article 3 prohibition on torture
    breached by forcible feeding which was not a
    medical necessity.

23
Article 8
  • Article 8 held to protect the right of personal
    integrity as part of the right of respect for
    private life in X v. Austria (1979) 18 D.R. 154
    (E.Comm.H.R.) blood test, Peters v. Netherlands
    (1994) 77-A D.R. 75 (E.Comm.H.R.) urine test,
    and X v. Federal Republic of Germany (1984) 7
    E.H.R.R. 152 (E.Comm.H.R.) force feeding of
    prisoner.

24
Key Cases
  • X. and Y. v. the Netherlands, judgment of 26
    March 1985, Series A no. 91, p. 11, 22
  • Herczegfalvy v. Austria, judgment of 24 September
    1992, Series A no. 244, p. 26,  86
  • Pretty v. the United Kingdom, no. 2346/02,  61
    and 63, ECHR 2002-III,
  • Y.F. v. Turkey, no. 24209/94, 22 July 2003,  33
  • Glass v United Kingdom Judgment of 9 March 2004
  • Storck v Germany no 61603/00 16 July 2005 139,
    143, 144, 150.

25
X Y v Netherlands
  • 22.  No dispute as to the applicability of Art 8
    the facts concern a matter of "private life", a
    concept which covers the physical and moral
    integrity of the person, including his or her
    sexual life.
  • 23.  Although the object of A 8 is essentially
    that of protecting the individual against
    arbitrary interference by the public authorities,
    it does not merely compel the State to abstain
    from such interference in addition to this
    primarily negative undertaking, there may be
    positive obligations inherent in an effective
    respect for private or family life These
    obligations may involve the adoption of measures
    designed to secure respect for private life even
    in the sphere of the relations of individuals
    between themselves.

26
Y.F v Turkey
  • 33.  Article 8 is clearly applicable to these
    complaints, which concern a matter of private
    life, a concept which covers the physical and
    psychological integrity of a person (see X and Y
    v. the Netherlands, judgment of 26 March 1985,
    Series A no. 91, p.11,  22). It reiterates in
    this connection that a person's body concerns the
    most intimate aspect of private life. Thus, a
    compulsory medical intervention, even if it is of
    minor importance, constitutes an interference
    with this right (see X v. Austria, no. 8278/78,
    Commission decision of 13 December 1979

27
Y.F. v Turkey
  • 34. However, the Court considers that, in the
    circumstances, the applicant's wife could not
    have been expected to resist submitting to such
    an examination in view of her vulnerability at
    the hands of the authorities who exercised
    complete control over her throughout her
    detention.

28
Y.F. v Turkey
  • In accordance with law
  • 42.  The Court notes that the Government have not
    argued that the interference complained of was
    in accordance with the law at the relevant
    time. They referred in their observations to
    regulations and circulars which were issued after
    the date of the disputed examination.
    Furthermore, under Turkish law, any interference
    with a person's physical integrity is prohibited
    except in the event of medical necessity and in
    circumstances defined by law. Moreover, in the
    course of the preliminary investigation, a
    detainee may only be examined at the request of a
    public prosecutor.

29
Y.F. v Turkey
  • 43. The Government failed to demonstrate medical
    necessity or the circumstances defined by law. No
    evidence of request for a medical examination by
    the public prosecutor. While the Court accepts
    the Government's submission that the medical
    examination of detainees by a forensic doctor can
    prove to be a significant safeguard against false
    accusations of sexual molestation or
    ill-treatment, it considers that any interference
    with a person's physical integrity must be
    prescribed by law and requires the consent of
    that person. Otherwise, a person in a vulnerable
    situation, such as a detainee, would be deprived
    of legal guarantees against arbitrary acts.

30
Y.F. v Turkey
  • 43. In the light of the foregoing, the Court
    finds that the interference in issue was not in
    accordance with law.
  • 44.  This finding suffices for the Court to hold
    that there has been a violation of Article 8 of
    the Convention. It is not therefore necessary to
    examine whether the interference in question
    pursued a legitimate aim or was necessary in a
    democratic society in pursuit thereof

31
Herczegfalvy and Article 8
  • As for the allegation of breach of Article 8, the
    Court referred back to its finding on Article 3,
    and placed decisive weight to the lack of
    specific information capable of disproving the
    government's opinion that the hospital
    authorities were entitled to regard the
    applicant's psychiatric illness as rendering him
    entirely incapable of taking decisions for
    himself.

32
Article 8
  • Clear case law from the court establishing that
    the right of personal integrity part of the right
    of respect for private life in Pretty v United
    Kingdom 2002, and Glass v United Kingdom 2004.
  • Glass Hospital a public institution and the acts
    and omissions of the medical staff capable of
    engaging the responsibility of the government
    under the Convention (para 71)

33
Pretty v United Kingdom
  • 61. As the court has had previous occasion to
    remark, the concept of 'private life' is a broad
    term not susceptible to exhaustive definition.
    It covers the physical and psychological
    integrity of a person (X Netherlands (1985) 8
    EHRR 235 at 239 (para 22))

34
Pretty v United Kingdom
  • 68 An interference with the exercise of an art 8
    right will not be compatible with art 8(2) unless
    it is 'in accordance with the law', has an aim or
    aims that is or are legitimate under that
    paragraph and is 'necessary in a democratic
    society' for the aforesaid aim or aims.

35
Glass v United Kingdom
  • Having regard to the circumstances of the case,
    the decision of the authorities to override the
    mothers objection to the proposed treatment in
    the absence of authorisation by a court resulted
    in a breach of Article 8 (para. 83)

36
Glass v UK and the Bioethics Convention
  • Court referred to the Bioethics Convention
  • Article 5 General Rule An intervention in the
    health field may only be carried out after the
    person concerned has given free and informed
    consent
  • The person concerned shall be given appropriate
    information as to the purpose and nature of the
    intervention as well as on its consequences and
    risks

37
Bioethics Convention
  • Article 6(3) Where, according to law, and adult
    does not have capacity to consent to an
    intervention because of a mental disability, a
    disease, or for similar reasons, the intervention
    may only be carried out by authorisation of his
    or her representative or an authority or a person
    or body provided for by law.

38
Bioethics Convention
  • Article 7 Subject to protective conditions
    prescribed by law, including supervisory, control
    and appeal procedures, a person who has mental
    disorder of a serious nature may be subjected,
    without his or her consent, to an intervention
    aimed at treating his or her disorder only where,
    without such treatment, serious harm is likely to
    result to his or her health.

39
Relevance of capacity
  • Council of Europe Rec (2004) 10, Article 12.
  • UN Mental Illness Principles 1991 no treatment
    shall be given to a patient without his or her
    informed consent except as provided by paras 6,
    7, 8, 13 and 15
  • Para 6(b) that the patient lacks capacity or if
    domestic legislation so provides, that having
    regard to the patients own safety or the safety
    or others, the patient unreasonably withholds
    consent.

40
Storck v Germany
  • 139 She had refused to take medication, but it
    had been administered to her by force. She had
    been crammed with psychotropics and neuroleptics,
    and attached to beds, chairs and radiators. Had
    been treated as a mentally insane person for many
    years and the treatment had permanently ruined
    her health, and indeed her life. Both detention
    and infringement of her physical integrity
    imputable to the State. Alleged violation of
    positive obligation to protect against
    interferences with her right to respect for
    private life.


41
Storck v Germany
  • 143.  In so far as the applicant argued that she
    had been medically treated against her will while
    detained, the Court reiterates 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
    individuals will (see Herczegfalvy v. Austria,
    judgment of 24 September 1992, Series A no. 244,
    p. 26,  86).


42
Storck v Germany
  • 144 Given medical treatment against her will. It
    further notes that the findings of at least one
    expert (see paragraph 23 above) indicated that
    the medicines the applicant had received in the
    clinic had been contraindicated and had caused
    serious damage to her health. However, the Court
    does not need to determine whether the
    applicants treatment was lege artis, as,
    irrespective of this, it was carried out against
    her will and therefore already constituted an
    interference with her right to respect for her
    private life.


43
Storck v Germany
  • 150.  The Court considers that on account of its
    obligation to secure to its citizens their right
    to physical and moral integrity, the State
    remained under a duty to exercise supervision and
    control over private psychiatric institutions.


44
Summary of Article 8 rights
  • Obligation of state under Article 8 to desist
    from interferences with physical and
    psychological integrity
  • Herczegfalvy v Austria (1992), Y.F. v Turkey
    (2003),
  • Obligation of state to protect against
    interferences with physical and psychological
    integrity
  • X Y v Netherlands (1985), Storck v Germany
    (2005)

45
New Positive Obligations?
  • The right to an assessment
  • The right to care in the least restrictive
    setting
  • Mental Health and Disability Rights

46
Independent Living and Social Inclusion
  • UN Convention on Rights of Persons with
    Disabilities
  • Article 19 Living independently and being
    included in the community
  • States Parties to the present Convention
    recognize the equal right of all persons with
    disabilities to live in the community, with
    choices equal to others, and shall take effective
    and appropriate measures to facilitate full
    enjoyment by persons with disabilities of this
    right and their full inclusion and participation
    in the community, including by ensuring that
  • (a) Persons with disabilities have the
    opportunity to choose their place of residence
    and where and with whom they live on an equal
    basis with others and are not obliged to live in
    a particular living arrangement
  • (b) Persons with disabilities have access to a
    range of in-home, residential and other community
    support services, including personal assistance
    necessary to support living and inclusion in the
    community, and to prevent isolation or
    segregation from the community
  • (c) Community services and facilities for the
    general population are available on an equal
    basis to persons with disabilities and are
    responsive to their needs.

47
Human Rights and Mental Health
  • Need to be aware of positive and negative rights.
  • Need to be aware of the impact of the Bioethics
    Convention and the Council of Europe Mental
    Illness Recommendation
  • Need to ensure that international and domestic
    Disability Discrimination Legislation is fully
    applied to people with mental health problems as
    well as those with physical disabilities the
    Social inclusion agenda.
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