Mental health and human rights: What have human rights ever done for me?

10 Mar

Human Rights Act 1988 Articles BIHR

Human rights are for everyone and they affect our lives every day, epecially the lives of people managing mental health problems: the more vulnerablle and marginalised a person is, the more important human rights are.

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You’ll often see me banging on on twitter about human rights (often using the hashtag #humanrights). Why have I got such a bee in my bonnet about human rights? Aren’t they just for journalists locked up in foreign jails, prisoners banned from voting or from being sent books, refugees? Aren’t they just about freedom of expression, torture, death row inmates? And why do they even matter if the government scraps the Human Rights Act, as we’ve heard the Conservative party propose recently? These are all important questions.

See Me Scotland human rightsHaving been unlawfully arrested by police; detained under section against my will; repeatedly forcibly medicated; held in seclusion; locked in a room for hours with no access to a toilet, bedding, food or water or even shoes; locked up without my glasses, phone or any means to contact the outside world – I referred to the psychiatric ward as The Land that Human Rights Forgot – and subsequently left, in a fragmented NHS mental health system, without proper care in the community, the let me tell you: I am very much a fan of human rights for mental health folks. And I think they are worth fighting for.

Human rights are for everyone and that includes people with mental health problems

Yes, human rights are for all those different types of people listed above; and yes, they are about all of those important issues, which mainstream human rights organisations talk about regularly. But they’re not about only those issues or about only those people. Human rights are for you, me, people we like, people we hate, people we don’t know. Human rights are for everyone, and they affect our lives every day – especially the lives of people managing mental health problems. The more vulnerablle and marginalised someone is, the more human rights has the scope to help.

There have been some important legal cases decided by courts in the recent past which have forced important changes to be made to the ways people with mental health problems are treated, especially when in crisis; and there is scope in future for human rights laws, guidance and conventions to bring about more improvements to our lives. Human rights laws exist to protect everyone from abuses of power, disrespect and neglect.

Human rights laws, guidance and conventions can help to bring about more improvements to the lives of people with mental health problems

Recently, barrister Adam Wagner, who writes for the UK Human Rights blog, set up a new project, the Human Rights Information Project. It aims to “change the face of human rights” by aiding public understanding of the topic and why it’s important. It must, in my view, try to bring home the fact that human rights are for everyone, and that includes people with mental health problems.

In kicking off the new project, Wagner asked people to nominate their top UK and European human rights legal cases. He’s putting together a top 50 of human rights cases which have had a “profound impact on people in the UK” or which have the potential to do so (#50cases). In response to that call, I spotted this blog by Lucy Series (a researcher at the Centre for Health and Social Care Law at Cardiff Law School), which sets out her top 16 human rights cases on mental health, disability rights and capacity law. Over the course of my pifflings on on twitter, I’ve randomly stumbled across a few other legal cases on the human rights of people managing disabilities, including mental health problems. Scroll down to find the case summaries I put together and sent to Wagner; my aim is for cases on disability rights and human rights for people with mental health problems to make it into the top 50: I want mental health folks to be seen as falling squarely within mainstream human rights concerns, rather than in a specialist niche or only in relation to other pre-existing areas of focus like prisoners or deaths in custody.

I want mental health folks to be seen as falling squarely within mainstream human rights concerns, rather than in a specialist niche

There are many areas in which legal cases brought either in the UK courts under the Human Rights Act 1998 or the European Convention on Human Rights or the Convention on the Rights of Persons with Disabilities have led directly to changes in UK law and policy that impact our daily lives. These include:

  • The Code of Practice cannot just be ignored

Hospitals now know (because of the Munjaz case) that they cannot treat the Mental Health Act Code of Practice as optional; they must always follow what it says, unless they  can show they have good reasons not to do so. Knowing this can help focus the minds of those writing in-house policies; and give patients or advocates the chance to persuade hospitals to stick to the Code – or to know the reasons why they’re not doing so.

  • Mental Health Crisis Care Concordat brought in to set national standards & force services to collaborate

Following MS v UK, the NHS now knows it cannot leave someone in acute mental distress in a police cell for days, since this is degrading treatment that breaches human rights. As a result of this case, in 2014 the government introduced the Mental Health Crisis Care Concordat which sets national standards for crisis care and requires signatories (including local government and key health, police and voluntary services) to work together to develop strategic partnership arrangements and hold each other to account.

  • The state must provide a system of public healthcare

The State must provide a system of public health care and hospitals. A case from Turkey shows that the European Court of Human Rights has begun to develop a “right to healthcare” under Article 2. This may prove a potential source of legal challenges to cuts to NHS healthcare services, cuts which are falling disproportionately harshly on historically-underfunded mental health services and, in the case of child mental health servivices, could be argued not to provide a ‘system’ at all.

  • Hospitals must care for voluntary patients too

Hospitals must take just as good care of voluntary patients as they do sectioned patients (Rabone). This was an important extension of the duties of hospitals to care for informal patients too.

  • Mental Capacity Act brought into law to protect vulnerable people

Following the Bournewood case, the government brought in the Mental Capacity Act 2005. This gives extra protections to people who are unable to make decisions for themselves and find themselves deprived of their liberty, including people with learning difficulties, and/or mental health conditions and older people in care homes. The Act gives people some right to be listened to and be consulted about various aspects of their human rights.

  • Safeguards against detention of vulnerable people

What amounted to being deprived of your liberty was clarified in the Cheshire West (‘gilded cage’) case, and people now have more procedural safeguards. This has had a significant impact on health and social care services since people who it was previously thought could not have a say now do.

All sorts of aspects of human rights affect people with mental health problems, and not just obvious ones like psychiatric detention and forced treatment in the UK, or people chained or caged overseas. I don’t mean horror stories detailed in the Scientologists’ “Psychiatry: an Industry of Death” museum (don’t be confused by the Citizens’ Commission on Human Rights, which is just another manifestation of Scientology) or current or past uses of psychiatry for political means. I’m thinking about these sorts of issues which, to my mind, provide lots of opportunities for human rights to make a real difference to people’s lives:

  • The right to vote of people with mental health problems
  • Discrimination in employment
  • The impact and implementation of the new United Nations Convention on the Rights of Persons with Disabilities, which has been described as “a paradigm shift in disability rights” (though, unlike the European Convention on Human Rights, it has not yet been implemented into UK law.)For instance:
    • How does the CRPD right to access treatment square with historic underfunding of NHS mental health services or the greater cuts applied in comparison with physical health services? Access to good, timely treatment and support is a key issue for people managing mental health problems.
    • The UK is the first country to be investigated by the UN for systemic violations of the rights of disabled people; when poverty is a major determinant of mental health problems, austerity cuts are falling disproportionately on disabled people, particularly people with mental health problems.
  • Routine use of forced treatment on people with (and without) mental capacity held in psychiatric detention
  • The brand new human rights section at the start of the revised Code of Practice to the Mental Health Act

Mia Vee human rights votinLet’s not take our human rights for granted and lose them by not paying close enough attention, or miss the opportunity for gains that, for instance, using human rights language in negotiations can bring.

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Summaries of some important legal cases on the human rights of people with mental health problems

Rights Info 50 cases

Here’s my (short) list of legal cases which have impacted (or have the potential to do so) on the human rights of people with mental health problems. These are summaries of the ones I’ve randomly stumbled across, so please feel free to add more in the comments underneath. Wagner asked for cases to be listed in order of importance, and for each case to include the name, citation (like a library catalogue reference) and link in a legal database, together with a 50-word summary. I’ve had a go – though fairly swiftly ditched the word limit. First I describe some brief facts of the case, then what the court decided, then it’s significance (in my view).

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1) Hospitals can’t ignore the Mental Health Act Code of Practice but must always follow what it says unless they have good reasons not to do so

R v. Ashworth Hospital Authority (now Mersey Care National Health Service Trust), ex parte Munjaz, House of Lords, [2005] UKHL 58

In 2004, Mr Munjaz, a patient at Ashworth high security psychiatric hospital, was placed in seclusion. Chapter 15 of the Code of Practice to the Mental Health Act 1983 contains provisions on seclusion, from which Ashworth’s policy differed.

The House of Lords found that, although the Code was less than a “binding instruction” to be followed always, it was “much more than mere advice”; instead, it was statutory guidance from which a hospital “should only depart if it has cogent reasons for doing so”. (In this case, the hospital was found to have such reasons.)

The Code has historically been poorly adhered to by hospitals and healthcare staff (it was certainly my experience as an inpatient that staff had a poor understanding of the law or any regard for the Code), and the case was an important reiteration of its weight. The ruling will take on increased significance in April 2015, when the revised Code will come into force: th

e new Code will bring human rights to the fore, since it opens with a new section on the human rights of patients. Watch this space!

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2) The NHS can’t leave someone in acute mental distress in a police cell for days, since this is degrading treatment that breaches human rights

M.S. v. the United Kingdom, European Court of Human Rights, May 2012, Application no. 24527/08

In 2004, police detained MS under s136 Mental Health Act 1983 and took him to police cells as a “place of safety” for assessment. At the outset, a number of specialists assessed MS as being in urgent need of psychiatric treatment for severe mental illness. Nevertheless, for 4 days, whilst waiting for a bed in a mental health unit to be organised, he continued to be held in a police cell, monitored by CCTV. Without treatment, he quickly descended into an “abject condition” and was manifestly suffering acutely.

The Court held that MS had suffered degrading treatment, in violation of his rights under Article 3 of the Convention. (The description of MS’s suffering contained in the judgment is truly horrifying.)

This ruling p

laced the onus on the UK government to ensure provision and coordination of services for dealing with urgent mental health cases. Being unprepared was no justification for breaching best medical practice and the maximum time limit set by law. The case also recognised, in contravention to what government lawyers had argued, that mental suffering was suffering and that it was insufficient for his physical safety and (just barely) physical needs alone to be catered for.

Following this case, in 2014 the government introduced the Mental Health Crisis Care Concordat. It sets national standards for crisis care and requires signatories – including local government and key health, police and voluntary services – to work together to develop strategic partnership arrangements and hold each other to account. Another case of Watch this space!

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3) The State must provide a system of public health care and hospitals

Asiye Genç v Turkey, European Court of Human Rights, January 2015, Application No 24109/07

In 2004, a newborn baby died in an ambulance after being refused treatment for urgent breathing difficulties at three hospitals in the region; each hospital had said it had no suitable or available neonatal facilities and had turned the ambulance away. Truly heartbreaking.

The Court found that the Article 2 ECHR right to life had been violated, and that the State has a positive obligation to provide a system of public health care and hospitals.

The case shows the Court has begun to develop a “right to healthcare” under Article 2. This may prove a potential source of legal challenges to cuts to NHS healthcare services, cuts which are falling particularly harshly on historically-underfunded mental health services. The duty is to provide a healthcare system which is well-equipped, well-run, accessible and of good quality – not something which can always be said of mental health services in the UK.

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4) Hospitals must take just as good care of voluntary patients as they do sectioned patients

Rabone and another v Pennine Care NHS Foundation Trust, Supreme Court, [2012] UKSC 2, [2012] MHLO 6

In 2005, Melanie Rabone, a psychiatric inpatient assessed to be at real and immediate risk of suicide, took her life the day after the Trust negligently allowed her to go home on leave.

Rabone had been admitted a week earlier after a serious suicide attempt. She was undergoing treatment for a severe depressive episode with psychotic symptoms and was a voluntary or “informal” patient (not formally detained under the Mental Health Act 1983). Her records noted that, if she attempted to leave, she should be stopped and assessed for detention under the Act. Nevertheless, she was granted home leave and took her life the next day.

The Supreme Court found that the Trust owed a positive operational duty under Article 2 ECHR (right to life) to take preventative measures to safeguard the life of a patient at risk of suicide irrespective of whether she was an informal or detained patient.

The judgment recognised that voluntary psychiatric inpatients are owed the same practical and legal protections as sectioned patients; and shows the vital role the Convention can play in protecting the human rights of society’s most vulnerable people.

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Human rights laws and conventions
Some twitter musings on human rights for mental health folks:

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2 Responses to “Mental health and human rights: What have human rights ever done for me?”

  1. littl3misskat 8 November 2015 at 5:06 pm #

    Dont believe seemescotland comment. The lady in charge did a lecture at the end I asked her to name any one human right. She did not know one. There are none that mental health patients in scotland have once they are sectioned. Also not one thing that is good for your mental health is allowed. Even my priest was banned from visiting me. So where is the social life so necessary for mental health in us all. Locked up. No fresh air. Can anyone think of something good for your mental health that a sectioned person is not denied ? It’s not just human rights that we are denied. And it’s all for money. Taxpayers money. We pay for our own abuse.

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