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Not ‘us’ and ‘them’: towards a normative legal theory of mental health vulnerability

  • Phil Bielby (a1)

Abstract

In this paper, I develop the basis of a normative legal theory of mental health vulnerability. In Section 2, I conceptualise mental health vulnerability by integrating a universal understanding of vulnerability with a subjective-evaluative, psychosocial and dimensional account of mental health. In Section 3, I move on to consider the significance of mental health vulnerability for legal theory through an encounter with perspectives on vulnerability offered by MacIntyre, Fineman and Del Mar. This offers an insight into the normative foundations of mental health vulnerability. In Section 4, I outline a normative framework for mental health vulnerability that involves a synergy of rights and care. This extends Engster's idea of ‘a right to care’ to mental health and highlights the role of care and rights in mitigating power imbalances and inequality in relation to mental health. In concluding, I suggest future directions for research on mental health vulnerability.

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References

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Allen, J et al. (2014) Social determinants of mental health. International Review of Psychiatry 26, 392407.
Barry, B (2005) Why Social Justice Matters. Cambridge: Polity Press.
Bartlett, P and Sandland, R (2014) Mental Health Law: Policy and Practice. Oxford: Oxford University Press.
Bentall, RP (2010) Doctoring the Mind: Why Psychiatric Treatments Fail. London: Penguin.
Beyleveld, D and Brownsword, R (2001) Human Dignity in Bioethics and Biolaw. Oxford: Oxford University Press.
Bielby, P (2008) Competence and Vulnerability in Biomedical Research. Dordrecht: Springer.
Bielby, P (2016) Justifying mental health rights from a Gewirthian perspective. In Bauhn, P (ed.), Gewirthian Perspectives on Human Rights. London: Routledge, pp. 174190.
Biggs, H and Jones, C (2014) Legally vulnerable: what is vulnerability and who is vulnerable? In Freeman, M, Hawkes, S and Bennett, B (eds), Law and Global Health (Current Legal Issues, Vol. 16). Oxford: Oxford University Press, pp. 133148.
Bloom, P (2016) Against Empathy: The Case for Rational Compassion. London: Bodley Head.
Bolton, D (2008) What Is Mental Disorder? An Essay in Philosophy, Science, and Values. Oxford: Oxford University Press.
Brown, JS, Learmonth, AM and Mackereth, CJ (2015) Promoting Public Mental Health and Well-Being: Principles into Practice. London: Jessica Kingsley.
Brown, K (2011) ‘Vulnerability’: handle with care. Ethics and Social Welfare 5, 313321.
Brown, K, Ecclestone, K and Emmel, N (2017) The many faces of vulnerability. Social Policy and Society 16: 497510.
Campbell, T (1988) Justice. Basingstoke: Macmillan.
Carr, S (2005) ‘The sickness label infected everything we said’: lesbian and gay perspectives on mental distress. In Tew, J (ed.), Social Perspectives in Mental Health. London: Jessica Kingsley Publishers, pp. 168183.
Cattan, M and Tilford, S (eds) (2006) Mental Health Promotion: A Lifespan Approach. Maidenhead: Open University Press.
Clark, DM (2012) The English Improving Access to Psychological Therapies (IAPT) program: history and progress. In McHugh, RK and Barlow, DH (eds), Dissemination and Implementation of Evidence-Based Psychological Interventions. New York: Oxford University Press, pp. 6177.
Clough, B (2015) ‘People like that’: realising the social model in mental capacity jurisprudence. Medical Law Review 23, 5380.
Clough, B (2017) Disability and vulnerability: challenging the capacity/incapacity binary. Social Policy and Society 16, 469481.
Collins, J (2014) The contours of vulnerability. In Wallbank, J and Herring, J (eds), Vulnerabilities, Care and Family Law. Abingdon: Routledge.
Cromby, J, Harper, D and Reavey, P (2013) Psychology, Mental Health and Distress. Basingstoke: Palgrave.
Davidson, G et al. (2016) Models of Mental Health. London: Palgrave.
Dean, L and Phillips, M (2016) Attitudes to Mental Health Problems and Mental Wellbeing: Findings from the 2015 British Social Attitudes Survey. London: Public Health England/British Social Attitudes. Available at http://www.bsa.natcen.ac.uk/latest-report/british-social-attitudes-33/mental-health.aspx (accessed 8 May 2018).
Del Mar, M (2012) Relational jurisprudence: vulnerability between fact and value. Recht en Methode in onderzoek en onderwijs 2, 6381. Available at http://www.bjutijdschriften.nl/tijdschrift/lawandmethod/2012/2/ReM_2212-2508_2012_002_002_005 (accessed 8 May 2018).
DeMichelis, C (2016) Relational resilience: an interdisciplinary perspective. In DeMichelis, C and Ferrari, M (eds), Child and Adolescent Resilience within Medical Contexts: Integrating Research and Practice. Switzerland: Springer, pp. 110.
Dodds, S (2007) Depending on care: recognition of vulnerability and the social contribution of care provision. Bioethics 21, 500510.
Dunn, MC, Clare, ICH and Holland, AJ (2008) To empower or to protect? Constructing the ‘vulnerable adult’ in English law and public policy. Legal Studies 28, 234253.
Ecclestone, K and Brunila, K (2015) Governing emotionally vulnerable subjects and ‘therapisation’ of social justice. Pedagogy, Culture and Society 23, 485506.
Engster, D (2007) The Heart of Justice: Care Ethics and Political Theory. Oxford: Oxford University Press.
Evans, B and Reid, J (2013) Dangerously exposed: the life and death of the resilient subject. Resilience 1, 8398.
Ferns, P (2005) Finding a way forward: a black perspective on social approaches to mental health. In Tew, J (ed.), Social Perspectives in Mental Health. London: Jessica Kingsley Publishers, pp. 129150.
Fineman, MA (2008) The vulnerable subject: anchoring equality in the human condition. Yale Journal of Law and Feminism 20, 123.
Fineman, MA (2010) The vulnerable subject and the responsive state. Emory Law Journal 60, 251275.
Fineman, MA (2014) Vulnerability, resilience, and LGBT youth. Temple Political and Civil Rights Law Review 23, 307329.
Fineman, MA and Grear, A (eds) (2013) Vulnerability: Reflections on a New Ethical Foundation for Law and Politics. Aldershot: Ashgate.
Friedli, L (2009) Mental Health, Resilience and Inequalities. Copenhagen: World Health Organization Regional Office for Europe.
Gewirth, A (1978) The basis and content of human rights. Georgia Law Review 13, 1143–70.
Gilson, EC (2014) The Ethics of Vulnerability: A Feminist Analysis of Social Life and Practice. New York: Routledge.
Goldie, I et al. (2016) Mental Health and Prevention: Taking Local Action for Better Mental Health. London: Mental Health Foundation. Available at https://www.mentalhealth.org.uk/publications/mental-health-and-prevention-taking-local-action-better-mental-health (accessed 8 May 2018).
Goodin, RE (1985) Protecting the Vulnerable: A Re-analysis of Our Social Responsibilities. Chicago: University of Chicago Press.
Grear, A (2010) Redirecting Human Rights: Facing the Challenge of Corporate Legal Humanity. Basingstoke: Palgrave Macmillan.
Griffin, J (2008). On Human Rights. Oxford: Oxford University Press.
Hart, HLA (1961/2012) The Concept of Law, 3rd edn. Oxford: Oxford University Press.
Hart, HLA (1968/2008) Punishment and Responsibility: Essays in the Philosophy of Law, 2nd edn. Oxford: Oxford University Press.
Hart, HLA and Honoré, T (1985) Causation in the Law, 2nd edn. Oxford: Oxford University Press.
Heaslip, V (2013) Understanding vulnerability. In Heaslip, V and Ryden, J (eds), Understanding Vulnerability: A Nursing and Healthcare Approach. Chichester: Wiley, pp. 627.
Held, V (2006) The Ethics of Care, Personal, Political, and Global. New York: Oxford University Press.
Herring, J (2013) Caring and the Law. Oxford: Hart Publishing.
Herring, J (2016) Vulnerable Adults and the Law. Oxford: Oxford University Press.
Hillyard, P (2002) Invoking indignation: reflections on future directions of socio-legal studies. Journal of Law and Society 29, 645656.
HM Government/Department of Health (2011) No Health without Mental Health: A Cross-government Mental Health Outcomes Strategy for People of All Ages. London: HM Government. Available at https://www.gov.uk/government/publications/no-health-without-mental-health-a-cross-government-outcomes-strategy (accessed 8 May 2018).
Hoffman, L, Lopez, AJ and Moats, M (2013) Humanistic psychology and self-acceptance. In Bernard, ME (ed.), The Strength of Self-Acceptance: Theory, Practice and Research. New York: Springer, pp. 317.
Hoffman, ML (2014) Empathy, justice, and social change. In Maibom, HL (ed.), Empathy and Morality. Oxford: Oxford University Press, pp. 7196.
Hoffmaster, B (2006) What does vulnerability mean? Hastings Center Report 36, 3845.
Höfler, M (2014) Strengthening psychological resilience in humanitarian practice: resource-centred and risk-centred approaches. Resilience 2, 3246.
Howell, A and Voronka, J (2012) Introduction: the politics of resilience and recovery in mental health care. Studies in Social Justice 6, 17.
James, O (2008) The Selfish Capitalist: Origins of Affluenza. London: Vermilion.
Johnstone, L (2000) Users and Abusers of Psychiatry: A Critical Look at Psychiatric Practice, 2nd edn. London: Routledge.
Joubert, N and Raeburn, J (1998) Mental health promotion: people, power and passion. International Journal of Mental Health Promotion 1, 1522.
Keyes, CLM (2002) The mental health continuum: from languishing to flourishing in life. Journal of Health and Social Behavior 43, 207222.
Kinderman, P (2014) A Prescription for Psychiatry: Why We Need a Whole New Approach to Mental Health and Wellbeing. Basingstoke: Palgrave.
Kottow, MH (2004) Vulnerability: what kind of principle is it? Medicine, Health Care and Philosophy 7, 281287.
Kultgren, J (1995) Autonomy and Intervention: Parentalism in the Caring Life. New York: Oxford University Press.
Kutchins, H and Kirk, SA (1999) Making Us Crazy: DSM – the Psychiatric Bible and the Creation of Mental Disorders (with an Introduction by Dorothy Rowe). London: Constable.
Ladd, PD and Churchill, A (2012) Person-centered Diagnosis and Treatment in Mental Health. London: Jessica Kingsley Publishers.
Levine, C et al. (2004) The limitations of ‘vulnerability’ as a protection for human research participants. American Journal of Bioethics 4, 4449.
Lewis, O (2010) The expressive, educational and proactive roles of human rights: an analysis of the United Nations Convention on the Rights of Persons with Disabilities. In McSherry, B and Weller, P (eds), Rethinking Rights-based Mental Health Laws. Oxford: Hart Publishing, pp. 97128.
Lotz, M (2016) Vulnerability and resilience: a critical nexus. Theoretical Medicine and Bioethics 37, 4559.
Luna, F (2009) Elucidating the concept of vulnerability: layers not labels. International Journal of Feminist Approaches to Bioethics 2, 121129.
MacDonald, G (2006) What is mental health? In Cattan, M and Tilford, S (eds), Mental Health Promotion: A Lifespan Approach. Maidenhead: Open University Press, pp. 832.
MacIntyre, A (1999) Dependent Rational Animals: Why Human Beings Need the Virtues. London: Duckworth.
Mackenzie, C and Rogers, W (2013) Autonomy, vulnerability and capacity: a philosophical appraisal of the Mental Capacity Act. International Journal of Law in Context 9, 3752.
Marmot, M (2016) The Health Gap: The Challenge of an Unequal World. London: Bloomsbury.
Matthews, E (1999) Mental and physical illness: an unsustainable separation? In Eastman, N and Peay, J (eds), Law Without Enforcement: Integrating Mental Health and Justice. Oxford: Hart Publishing, pp. 4758.
Mental Health Foundation (2018) What is good mental health? Available at https://www.mentalhealth.org.uk/your-mental-health/about-mental-health/what-good-mental-health (accessed 8 May 2018).
Mental Health Task Force (2016) The Five Year Forward View for Mental Health: A Report from the Independent Mental Health Taskforce to the NHS in England. London: Mental Health Task Force. Available at https://www.england.nhs.uk/wp-content/uploads/2016/02/Mental-Health-Taskforce-FYFV-final.pdf (accessed 8 May 2018).
Monbiot, G (2016) There is such a thing as society. www.monbiot.com. Available at: http://www.monbiot.com/2016/10/12/there-is-such-a-thing-as-society/ (accessed 8 May 2018).
Moore, MS (1984) Law and Psychiatry: Rethinking the Relationship. Cambridge: Cambridge University Press.
Morgan, A et al. (2016) Values and Ethics in Mental Health: An Exploration for Practice. London: Palgrave.
Neal, M (2012) ‘Not gods but animals’: human dignity and vulnerable subjecthood. Liverpool Law Review 33, 177200.
Neff, K (2003) Self-compassion: an alternative conceptualization of a healthy attitude toward oneself. Self and Identity 2, 85101.
Nussbaum, N (1996) Compassion: the basic social emotion. Social Philosophy and Policy 13, 2758.
Ostrowski, TM (2014) Resilience in the light of research and theoretical reflection. In Ostrowski, TM and Sikorska, I (eds), Health and Resilience. Krakow: Jagiellonian University Press, pp. 1322.
Paul, KI and Moser, K (2009) Unemployment impairs mental health: meta-analyses. Journal of Vocational Behavior 74, 264282.
Philippopoulos-Mihalopoulos, A and Webb, TE (2015) Vulnerable bodies, vulnerable systems. International Journal of Law in Context 11, 444461.
Pilgrim, D (2017) Key Concepts in Mental Health, 4th edn. London: Sage.
Plumb, S (2005) The social/trauma model: mapping the mental health consequences of childhood sexual abuse and similar experiences. In Tew, J (ed.), Social Perspectives in Mental Health: Developing Social Models to Understand and Work with Mental Distress. London: Jessica Kingsley, pp. 112128.
Ramsay, P (2012) The Insecurity State: Vulnerable Autonomy and the Right to Security in the Criminal Law. Oxford: Oxford University Press.
Randall, J et al. (2012) ‘Stigma and discrimination: critical human rights issues for mental health. In Dudley, M, Silove, D and Gale, F (eds), Mental Health and Human Rights: Vision, Praxis, and Courage. Oxford: Oxford University Press, pp. 113124.
Rapley, M, Moncrieff, J and Dillon, J (2011) Carving nature at its joints? DSM and the medicalization of everyday life. In Rapley, M, Moncrieff, J and Dillon, J (eds), De- medicalizing Misery: Psychiatry, Psychology and the Human Condition. London: Palgrave, pp. 19.
Rogers, W, Mackenzie, C and Dodds, S (2012) Why bioethics needs a concept of vulnerability. International Journal of Feminist Approaches to Bioethics 5, 1138.
Satz, AB (2008) Disability, vulnerability and the limits of antidiscrimination. Washington Law Review 83, 513568.
Sayce, L (2016) From Psychiatric Patient to Citizen Revisited. London: Palgrave.
Schott, RM (2013) Resilience, normativity and vulnerability. Resilience 1, 210218.
Schrecker, T and Bambra, C (2015) How Politics Makes Us Sick: Neoliberal Epidemics. Basingstoke: Palgrave.
Seedhouse, D (2002) Total Health Promotion: Mental Health, Rational Fields and the Quest for Autonomy. Chichester: Wiley.
Snyder, CR (2002) Hope theory: rainbows in the mind. Psychological Inquiry 13, 249275.
Spiers, J (2000) New perspectives on vulnerability using emic and etic approaches. Journal of Advanced Nursing 31, 715721.
Stanghellini, G and Rosfort, R (2013) Emotions and Personhood: Exploring Fragility – Making Sense of Vulnerability. Oxford: Oxford University Press.
Steiner, H (2007) Moral rights. In Copp, D (ed.), The Oxford Handbook of Ethical Theory. New York: Oxford University Press, pp. 459479.
Stychin, C (2012) The vulnerable subject of negligence law. International Journal of Law in Context 8, 337353.
ten Have, H (2016) Vulnerability: Challenging Bioethics. Abingdon: Routledge.
Tengland, P-A (2002) Mental Health: A Philosophical Analysis. Dordrecht: Springer.
Tew, J (2005) Social approaches to madness and distress: user perspectives and user knowledges. In Tew, J (ed.), Social Perspectives in Mental Health. London: Jessica Kingsley Publishers, pp. 3252.
Tew, J (2011) Social Approaches to Mental Distress. Basingstoke: Palgrave.
Tudor, K (1995) Mental Health Promotion: Paradigms and Practice. London: Routledge.
Turner, BS (2006) Vulnerability and Human Rights. University Park, PA: Pennsylvania University Press.
United Nations General Assembly (2006) Convention on the Rights of Persons with Disabilities and Optional Protocol. New York: United Nations. Available at http://www.un.org/disabilities/documents/convention/convoptprot-e.pdf (accessed 8 May 2018).
United Nations General Assembly (2017) Report of the Special Rapporteur on the Right of Everyone to the Enjoyment of the Highest Attainable Standard of Physical and Mental Health, A/HRC/35/21. New York: United Nations. Available at http://ap.ohchr.org/documents/dpage_e.aspx?si=A/HRC/35/21 (accessed 8 May 2018).
Warin, C (2013) How to Improve and Maintain Your Mental Wellbeing. London: Mind. Available at https://www.mind.org.uk/media/46940/how_to_improve_and_maintain_your_mental_wellbeing_2013.pdf (accessed 8 May 2018).
West, R (2011) Normative Jurisprudence: An Introduction. Cambridge: Cambridge University Press.
Wexler, DB and Winick, BJ (eds) (1996) Law in a Therapeutic Key: Developments in Therapeutic Jurisprudence. Durham, NC: Carolina Academic Press.
Wilkinson, R and Pickett, K (2010) The Spirit Level: Why Equality Is Better for Everyone. London: Penguin.
Williams, J (2005) Women's mental health: taking inequality into account. In Tew, J (ed.), Social Perspectives in Mental Health. London: Jessica Kingsley Publishers, pp. 151167.
Winick, BJ (1997a) Coercion and mental health treatment. Denver University Law Review 74, 11451168.
Winick, BJ (1997b) The jurisprudence of therapeutic jurisprudence. Psychology, Public Policy and Law 3, 184206.
Winick, BJ (1997c) The Right to Refuse Mental Health Treatment. Washington: American Psychological Association.
Winick, BJ (2006) Therapeutic jurisprudence: enhancing the relationship between law and psychology. In Brooks-Gordon, B and Freeman, M (eds), Law and Psychology: Current Legal Issues Volume 9. Oxford: Oxford University Press, pp. 3048.
World Health Organization (WHO) (1948) Constitution of the World Health Organization (as Adopted by the International Health Conference, New York, 19–22 June, 1946; 45th Edition, Supplement, October 2006). Available at www.who.int/governance/eb/who_constitution_en.pdf (accessed 8 May 2018).
World Health Organization (WHO) (2011) Impact of Economic Crises on Mental Health. Copenhagen: WHO Regional Office for Europe. Available at http://www.euro.who.int/en/health-topics/noncommunicable-diseases/mental-health/publications/2011/impact-of-economic-crises-on-mental-health (accessed 8 May 2018).
World Health Organization (WHO) (2014) Mental health: a state of well being. Available at http://www.who.int/features/factfiles/mental_health/en/ (accessed 8 May 2018).
Wrigley, A (2015) An eliminativist approach to vulnerability. Bioethics 29, 478487.

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