Title: Human Rights and Mental Health: Negative and Positive Obligations of States
1Human Rights and Mental Health Negative and
Positive Obligations of States
- Phil Fennell
- Cardiff Law School
2Human 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.
3International 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.
4International 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.
5European 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.
6International Human Rights Instruments
- World Health Organization, WHO Resource Book on
Mental Health, Human Rights and Legislation Stop
Exclusion Dare to Care (2005) -
7Article 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
8Article 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
9Negative 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)).
10The 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.
11The 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 -
12The 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).
13The 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
14Proportionality
- 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.
15Rights 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.
16Summary 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.
17Article 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.
18Article 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.
19Article 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)
20R(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?
21R(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.
22Article 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.
23Article 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.
24Key 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. -
25X 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.
26Y.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
27Y.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.
28Y.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.
29Y.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.
30Y.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
31Herczegfalvy 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.
32Article 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)
33Pretty 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))
34Pretty 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. -
35Glass 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)
36Glass 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
37Bioethics 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.
38Bioethics 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.
39Relevance 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.
40Storck 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.
41Storck 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).
42Storck 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.
43Storck 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.
44Summary 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)
45New Positive Obligations?
- The right to an assessment
- The right to care in the least restrictive
setting - Mental Health and Disability Rights
46Independent 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.
47Human 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.