2 What is mental health vulnerability?

To understand the nature of mental health vulnerability, we need to consider first the idea of vulnerability itself. This is especially important given the ‘vagueness and malleability’ surrounding uses of vulnerability (Brown et al., Reference Brown, Ecclestone and Emmel2017, p. 498). At its core, vulnerability is a propensity shared equally by all human beings to physical, psychological and developmental harm, rooted in shared human fragility, fallibility and finitude (Bielby, Reference Bielby2008, p. 52; Rogers et al., Reference Rogers, Mackenzie and Dodds2012, pp. 12, 19; Herring, Reference Herring2016, p. 6). This is reflected in the etymology of ‘vulnerable’ in the Latin verb vulnerare, meaning to wound (Bielby, Reference Bielby2008, p. 52; Turner, Reference Turner2006, p. 28). Vulnerability can therefore be understood as pertaining to a range of basic interests universally held amongst human beings – such as in life, food, shelter, physical and psychological health (Gewirth, Reference Gewirth1978, p. 1158; Griffin, Reference Griffin2008, p. 90) – which can be met, denied or undermined by the action or inaction of others, and/or by factors beyond human control (Bielby, Reference Bielby2008, p. 52). It is a ‘universal’ and ‘ontological’ experience of the human condition inherent within and experienced by us all (Bielby, Reference Bielby2008, p. 53; Turner, Reference Turner2006, p. 109; Fineman, Reference Fineman2008, p. 8; Grear, Reference Grear2010, p. 135; Rogers et al., Reference Rogers, Mackenzie and Dodds2012, p. 12; Gilson, Reference Gilson2014, p. 15; Herring, Reference Herring2016, p. 10). I will refer to this subsequently as ‘universal vulnerability’.

Understanding vulnerability as a universal experience of the human condition ‘unites us across all our differences’ (Fineman, Reference Fineman2014, p. 311). This is because it associates it in relevantly similar respects with lives characterised by considerable advantages and independence, such as that of a highly educated, affluent individual in excellent health, as well as with lives where advantages and independence are significantly constrained, such as that of an individual living in poverty with multiple health conditions. Put starkly, both can be killed, injured, starved, abused or oppressed, despite the glaring personal and structural inequalities between them that offer differing levels of resilience (Fineman, Reference Fineman2010, pp. 269–273) to those threats. In this way, recognition of our shared vulnerability focuses on the fundamental similarities rather than the differences between oneself and the situation of others who experience particular adversity through, for example, the experience of poverty, discrimination, violence, abuse or mental distress. This recognition fosters solidarity and an appreciation of what unites humanity rather than divides it (Rogers et al., Reference Rogers, Mackenzie and Dodds2012, pp. 31–32). Yet, while some question an understanding of vulnerability deriving principally from a predisposition to harm (Gilson, Reference Gilson2014, p. 8), it does not follow that the experience of vulnerability is necessarily undesirable or negative (Grear, Reference Grear2010, pp. 129–130; Herring, Reference Herring2013, p. 55; Heaslip, Reference Heaslip, Heaslip and Ryden2013, p. 20; Herring, Reference Herring2016, p. 1). Indeed, given the unavoidable possibility and probability of experiences that threaten these basic interests, the experience of our shared vulnerability is personally and socially transformative, providing a foundation for self-awareness and self-acceptance, interpersonal understanding and moral imagination (Nussbaum, Reference Nussbaum1996, p. 35; Hoffman et al., Reference Hoffman, Lopez, Moats and Bernard2013, p. 8; Beyleveld and Brownsword, Reference Beyleveld and Brownsword2001, pp. 114–117; Bielby, Reference Bielby and Bauhn2016, pp. 176–178; Gilson, Reference Gilson2014, pp. 15–16; Herring, Reference Herring2016, p. 43) thus ‘enabling the development of empathy, compassion, and community’ (Gilson, Reference Gilson2014, p. 8).

As the above example illustrates, some human beings experience elements of this universal vulnerability more acutely, and in some cases more onerously, than others. Fineman observes that ‘[v]ulnerability … is both universal and particular; it is experienced uniquely by each of us … our individual experience of vulnerability varies according to the quality and quantity of resources we can command’ (Fineman, Reference Fineman2010, p. 269). This may lead to a greater likelihood that one's basic interests could be undermined, denied or jeopardised in some way compared to others, amounting to a ‘reduced capacity, power or control to protect [one's] interests relative to other persons’ (Mackenzie and Rogers, Reference Mackenzie and Rogers2013, p. 52, n. 3). We can explain this greater exposure to not having basic interests met in terms of limited resilience, which includes constraints on support and resources, to withstand or protect oneself from these threats (Fineman, Reference Fineman2010, pp. 269–273). On this account, resilience co-exists with vulnerability (ten Have, Reference ten Have2016, pp. 27–28; Lotz, Reference Lotz2016, p. 55), rather than opposes it (Ostrowski, Reference Ostrowski, Ostrowski and Sikorska2014, p. 14) because resilience prevents our universal vulnerability from becoming all-consuming whereas our universal vulnerability highlights the contingency, susceptibility and conditionality of resilience. The contingency of resilience on social, political and legal factors points to a normative and relational understanding of resilience (Höfler, Reference Höfler2014, pp. 36, 45; DeMichelis, Reference DeMichelis, DeMichelis and Ferrari2016, pp. 1–2) that is responsive to social injustice (Lotz, Reference Lotz2016, pp. 57–58). It follows that the common experience of universal vulnerability and the common challenge to our resilience to deal with the shared threat to our basic interests provides the source of the ethical justification for appropriate social, political and legal responses to vulnerability that reflect this solidarity (Fineman, Reference Fineman2010; Rogers et al., Reference Rogers, Mackenzie and Dodds2012, p. 23; Lotz, Reference Lotz2016, pp. 57–58; Bielby, Reference Bielby and Bauhn2016). This distinguishes the meaning of resilience from a neoliberal ‘responsibilised’ resilience (Evans and Reid, Reference Evans and Reid2013; Howell and Voronka, Reference Howell and Voronka2012, pp. 4–5; Lotz, Reference Lotz2016, p. 57) where the individual is expected ‘to take responsibility for the emotional damages that marketisation causes’ (Ecclestone and Brunila, Reference Ecclestone and Brunila2015, p. 494). It also contests analyses that doubt the role that vulnerability can play as a distinct normative concept (Wrigley, Reference Wrigley2015).

Since the universal vulnerability we all experience exposes everyone to resilience challenges, a greater exposure to resilience challenges tends towards a heightened lived experience of our universal vulnerability (Dunn et al., Reference Dunn, Clare and Holland2008, pp. 245–246; Spiers, Reference Spiers2000, p. 719; Bielby, Reference Bielby and Bauhn2016, p. 178). Because the predisposition we all share to heightened lived experiences of vulnerability lies in our universal vulnerability, it is irrelevant if we individually happen never to experience particular forms of enhanced threat to our basic interests, such as starvation or homelessness – what matters is that we can because it is conceivable we could experience such adversity (Hoffman, Reference Hoffman and Maibom2014, p. 74). And, plainly, during the course of life, we are all highly likely to encounter serious threats to our basic interests in some forms (e.g. a severe illness), however much we may wish otherwise. In other words, while our unique experience of vulnerability is contingent on the resilience to withstand what happens to us during our life, what we are vulnerable to is not contingent, as it is rooted in our universal vulnerability, which is constant (Fineman, Reference Fineman2008, p. 1). The recognition that aspects of universal vulnerability are experienced more acutely or onerously due to limitations on resilience that we all encounter further entrenches a solidaristic understanding of vulnerability (Rogers et al., Reference Rogers, Mackenzie and Dodds2012, pp. 31–32). Yet it also helps us to identify those who are more exposed to constrained resilience, addressing the objection that ‘[i]f everyone is vulnerable, then the concept becomes too nebulous to be meaningful’ (Levine et al., Reference Levine2004, p. 46; see also the similar point made by Wrigley, Reference Wrigley2015, p. 482). With this in mind, the right question to ask is how constraints on one's resilience to cope with universal vulnerability are causing one's lived experience of vulnerability to be more acute or onerous than that of someone else, rather than whether one is vulnerable or not, or how vulnerable one is. This question can be explored vividly in the context of mental health.

Mental health is a core element of our universal vulnerability. It is central to our sense of self and capacity to have purposes that we choose and are of value to us (Bielby, Reference Bielby and Bauhn2016, p. 175). However, for a term that is used widely in public discourse, there is little agreement on what mental health actually means, especially when it is separated from medicalised concepts like ‘disease’ and ‘illness’ (Tengland, Reference Tengland2002, pp. 2–3; Seedhouse, Reference Seedhouse2002, pp. 33–34; Pilgrim, Reference Pilgrim2017, p. 3). When used in a positive sense, mental health can be understood variously as akin to self-esteem, well-being, self-identity, coping, social acceptance and integration, and, somewhat circularly, not experiencing psychological ill-health (Seedhouse, Reference Seedhouse2002, p. 36). Additionally, some have observed that mental (ill)health cannot be understood in isolation from physical (ill)health (Seedhouse, Reference Seedhouse2002, pp. 45–46; Matthews, Reference Matthews, Eastman and Peay1999, p. 55) or from cultural values (MacDonald, Reference MacDonald, Cattan and Tilford2006, p. 15). The existence of a multiplicity of definitions along with the interconnection between mental and physical health have led to scepticism that any plausible definition can be offered at all (Seedhouse, Reference Seedhouse2002, Chapter 3).

Although it is not possible to explore these debates fully here, for present purposes, I will understand mental health as the subjective experience of psychological and emotional well-being that involves ‘individuals’ perceptions and evaluations of their own lives in terms of their affective states and their psychological and social functioning’ (Keyes, Reference Keyes2002, p. 208). This takes into account the experiences of ‘the whole person’ – including their feelings, beliefs, embodiment and social context – rather than merely symptoms (Ladd and Churchill, Reference Ladd and Churchill2012, pp. 22–23, 25; Seedhouse, Reference Seedhouse2002, Chapter 4). The idea of good mental health – which can also be understood as mental health ‘flourishing’ (Keyes, Reference Keyes2002, p. 208) – depends upon self-worth, self-trust and self-acceptance/self-compassion that facilitates personal growth (associated in particular with the humanistic psychology of Carl Rogers) (Tengland, Reference Tengland2002, pp. 41–44; Neff, Reference Neff2003, p. 91) as well as resilience (Joubert and Raeburn, Reference Joubert and Raeburn1998; Tew, Reference Tew2011, pp. 61–62) and hope (Snyder, Reference Snyder2002). Yet it is important to emphasise that experiences of unhappiness, dissatisfaction, sadness, fear and anger are ‘part of a mentally healthy life’, as our engagement with them enables personal growth and positive change (Tew, Reference Tew2011, p. 19). This synergy between mental health and psychological well-being resonates with the World Health Organisation's definition of health, which extends to ‘a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity’ (WHO, 1948) as well as with aspects of the World Health Organisation definition of mental health framed as ‘a state of well-being in which every individual realizes his or her own potential, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to her or his community’ (WHO, 2014). It also shapes definitions of mental health endorsed by the English mental health charity Mind (Warin, Reference Warin2013, p. 4) and the British government's No Health without Mental Health outcomes strategy (HM Government/Department of Health, 2011, p. 87). Most recently, the UK's Mental Health Foundation affirms the subjective-evaluative experience of psychological and emotional well-being, highlighting ‘the ability to feel, express and manage a range of positive and negative emotions’ and ‘the ability to form and maintain good relationships with others’ as components of good mental health (Mental Health Foundation, 2018).

A corollary of this account of mental health as subjective-evaluative well-being is that it is psychosocial (or ‘psychobiosocial’ (Kinderman, Reference Kinderman2014, p. 4)) and dimensional. It is psychosocial insofar as it recognises the complex interaction of psychological and social factors that have primary influence on mental health over the biological factors emphasised by traditional psychiatry (Kinderman, Reference Kinderman2014, pp. 24–25, 38; Johnstone, Reference Johnstone2000, p. 35; for a discussion of the ‘biomedical’ model and its dominance, see Davidson et al., Reference Davidson2016, Chapter 1; United Nations General Assembly, 2017, paras 18–20). On this account, ‘mental well-being is fundamentally a psychological and social phenomenon, with medical aspects … not, fundamentally, a medical phenomenon with additional psychological and social elements’ (Kinderman, Reference Kinderman2014, pp. 24–25, 38). By extension, mental health problems ‘are fundamentally social and psychological issues’ (Kinderman, Reference Kinderman2014, p. 38). Psychological influences include ‘past and present relationship difficulties, and sometimes a spiritual crisis of values and beliefs’ (Johnstone, Reference Johnstone2000, p. 35), whereas social influences ‘are the result of social injustices, inequalities and health-demoting policies that need to be challenged and improved’ (MacDonald, Reference MacDonald, Cattan and Tilford2006, p. 17; see also Friedli, Reference Friedli2009). These social influences are especially prominent in highly unequal, neoliberal societies (Wilkinson and Pickett, Reference Wilkinson and Pickett2010, Chapter 5; James, Reference James2008). Most recently, the centrality of psychosocial influences has been recognised in the report by the UN special rapporteur on the right to health (United Nations General Assembly, 2017, paras 13, 19–20). The primacy of psychosocial over biological factors also ‘removes … the categories of “us” and “them”’ that arise from viewing experiences as ‘“normal” and “psychopathological”’, leading to ‘a more sophisticated approach in which all manifestations of mental distress may be understood as part of a continuum of potentially understandable responses to challenging life situations’ (Tew, Reference Tew2011, p. 26). Mental health is dimensional insofar as it involves degrees of the presence or absence of psychological well-being, avoiding ‘a sharp dividing line between mental health and mental illness’, which allows us to ‘recognise that all of us, sometimes, have distressing and unusual experiences in our lives’ (Cromby et al., Reference Cromby, Harper and Reavey2013, p. 4). This reaffirms that everyone always experiences a state of mental health – irrespective of whether this involves well-being or distress – since the ebb and flow of one's mental health are, like one's physical health, inexorable and pervasive elements of the human condition.

It follows that mental health vulnerability involves the psychological and relational resilience needed to withstand the perennial threat to our mental well-being and integrity in the face of life's challenges and adversities. A subjective-evaluative, psychosocial and dimensional approach to mental health is consistent with this, since one's unique experience of mental health vulnerability lies in one's evaluation of one's affective and socio-psychological experiences and is shaped by one's social circumstances and life history (and, to a lesser extent, biology) as well as the psychological and social resources one can draw upon to cope with pervasive challenges to one's mental well-being and integrity. These influences are common to all but their lived experience varies, just as one's mental health can vary. While everyone faces challenges to their psychological resilience, it is typically limited or diminished (though not necessarily absent) in heightened lived experiences of mental health vulnerability. In particular, where adverse social circumstances have a hostile impact on psychological well-being and/or one's psychological resilience is constrained due to, for example, internalised shame, feelings of worthlessness or hopelessness, our mental health distress increases and thus our lived experience of mental health vulnerability is heightened (Tew, Reference Tew2011, Chapter 7; Bielby, Reference Bielby and Bauhn2016, p. 176). At their most pronounced, these deleterious psychosocial influences may – though not necessarily will – render one less able than usual to safeguard one's own interests (Mackenzie and Rogers, Reference Mackenzie and Rogers2013, p. 52, n. 3) and/or expose one to a range of potentially intrusive or disempowering social, medical and legal responses. These range from social harms such as stigmatisation, discrimination, exclusion and exploitation to distressing subjective experiences such as a disrupted or ‘challenged’ sense of self (Dunn et al., Reference Dunn, Clare and Holland2008, pp. 245–246; Spiers, Reference Spiers2000, p. 719; Tew, Reference Tew2011, p. 28) as well as to the possibility of coercive medical treatment under mental health legislation. Within mental health law, therapeutic jurisprudence has already considered the harmful ‘anti-therapeutic’ effect of many coercive approaches to severe mental distress (Winick, Reference Winick1997a, pp. 1162–1163, 1166). But it is precisely because everyone faces challenges to their resilience needed for good mental health to greater or lesser degrees that no one is immune from heightened lived experiences of mental health vulnerability. This is reflected in Johnstone's observation that ‘the roots of mental distress are intimately interwoven into every aspect of our daily lives’ (Reference Johnstone2000, p. 258). By understanding mental health vulnerability as based on universal vulnerability and an account of mental well-being that is subjective-evaluative, psychosocial and dimensional, mental health vulnerability is better equipped to avoid accusations that it is a stigmatising label – rather, it is simply a fact of life.

3 Why mental health vulnerability matters to legal theory

In Dependent Rational Animals, MacIntyre observes that ‘[f]rom Plato to Moore and since there are usually, with some rare exceptions, only passing references to human vulnerability and affliction and to the connections between them and our dependence on others’ (Reference MacIntyre1999, p. 1). A likely explanation for this across much contemporary legal and political philosophy is the enduring influence of the rational, independent person of liberal individualism and classical social contract theory (Hoffmaster, Reference Hoffmaster2006, p. 42).Footnote ² Such focus marginalises or negates vulnerability – an idea captured by Dodds, who observes that ‘human vulnerability and dependency have come to be viewed as evidence of a failing to attain or retain autonomous agency, rather than as conditions for agency and autonomy among humans’ (Dodds, Reference Dodds2007, p. 501). An explicit acknowledgement of vulnerability, beyond the recognition that co-operation with others in society is necessary in order to maximise one's interests and security, thus creates a tension with ideas of autonomy and self-sufficiency on which such theories depend (Hoffmaster, Reference Hoffmaster2006, p. 42). Yet, as we have seen, the facts of human vulnerability are pervasive and inescapable. Fineman expresses the point in a way that resonates powerfully with the impetus behind this paper:

Fineman's question rightly directs our attention to debating the implications that universal vulnerability has for legal and political theory, repudiating the unrealistic and overly abstracted view of human beings that fails to emphasise the mutual reliance to which our basic, shared needs give rise (Fineman, Reference Fineman2008, p. 12; Dodds, Reference Dodds2007). As part of accepting these ‘[b]odily needs’ and potential for ‘internal disintegration’ (Fineman, Reference Fineman2008, p. 12) as central features of a theory of universal vulnerability, it is important that they extend explicitly to encompass those of mental health and well-being to fully account for these central features of the human condition and to avoid a problematic Cartesian mind/body distinction (see further Grear, Reference Grear2010, p. 117). In this way, theorising universal vulnerability becomes as inclusive as possible in its scope.

This inclusivity is also evident in MacIntyre's work. MacIntyre (Reference MacIntyre1999, Chapter 7) highlights the significance of vulnerability in our development and flourishing agents as well as the relevance of constrained resilience in determining the obligations we owe to others:

Such webs of support on which we all must rely as part of mitigating constrained resilience help us avoid or minimise the impact of experiences that impair or disrupt our well-being, autonomy and identity or bring about other forms of suffering and disadvantage. In mental health vulnerability (which I take MacIntyre's reference to ‘psychological disorder’ (ibid.) to be partly addressing), these webs of support can be understood as more specific instantiations of those that universal human vulnerability requires. They can be intimate and informal, as in the case of family and friends, as well as professional and formalised, such as access to counselling, psychotherapy or psychiatric care. In this regard, MacIntyre's observations chime with Goodin's arguments in an earlier (and similarly important) work that the wide reach of the ‘special responsibilities’ we have, which are broader than those to family and friends, finds its origin in the vulnerability of others to how we act and choose (Goodin, Reference Goodin1985, pp. 11–12). But, given the universality of mental health vulnerability, these webs of support cannot be limited to experiences of mental health suffering – as discussed above, it is precisely because good mental health is precarious that it requires mutual support to elicit and sustain it.

Consequently, specific instantiations of support for mental health vulnerability encompass a range of practices. To sustain good mental health and prevent mental health suffering, mental health promotion is required (Tudor, Reference Tudor1995; Cattan and Tilford, Reference Cattan and Tilford2006; Pilgrim, Reference Pilgrim2017, pp. 50–53), including public mental health frameworks providing access to preventive measures (Brown et al., Reference Brown, Learmonth and Mackereth2015, p. 13; Pilgrim, Reference Pilgrim2017, p. 49; United Nations General Assembly, 2017, para. 91(a)). In greater levels of mental health distress, it involves ‘multidisciplinary teams’ (Kinderman, Reference Kinderman2014, p. 28) of psychologists, psychiatrists and social care professionals as well as carers sustaining, affirming and empowering individuals who are suffering to facilitate recovery (ibid.). This could also involve peer-led forms of support (United Nations General Assembly, 2017, para. 83). But, in keeping with the insights of the psychosocial approach, mental health cannot and should not be seen in isolation from deeper structural influences. To this end, a theory of mental health vulnerability must incorporate recognition of diverse social influences that serve to militate against good mental health, such as (but not limited to) inequality (Allen et al., Reference Allen2014; Brown et al., Reference Brown, Learmonth and Mackereth2015, pp. 52–55; Friedli, Reference Friedli2009; Wilkinson and Pickett, Reference Wilkinson and Pickett2010, Chapter 5), unemployment (Paul and Moser, Reference Paul and Moser2009), ‘high demands, low control’ employment conditions (Marmot, Reference Marmot2016, Chapter 6), early-life trauma such as child abuse or neglect (Plumb, Reference Plumb and Tew2005), educational under-attainment (Brown et al., Reference Brown, Learmonth and Mackereth2015, pp. 44–45), economic crises (WHO, 2011), loneliness and social isolation (Brown et al., Reference Brown, Learmonth and Mackereth2015, pp. 72–74; Monbiot, Reference Monbiot2016) and living conditions (Brown et al., Reference Brown, Learmonth and Mackereth2015, pp. 42–44). The evidence that supports these social determinants of mental health underpins how mental health vulnerability and one's resilience to it are inextricably influenced by social harms and social values. And, since mental health vulnerability is universal despite it being experienced in ways that are particular to the individual (Fineman, Reference Fineman2010, p. 269), no one is invulnerable to these challenges to our mental health resilience, as one could conceivably suffer as others do (Hoffman, Reference Hoffman and Maibom2014, p. 74), even if one has never experienced, or will never experience, certain of these factors. The interaction of social determinants of mental health with individual psychological factors in the psychosocial model avoids ‘the individualisation and psychologisation of social problems’ (Brown et al., Reference Brown, Ecclestone and Emmel2017, p. 505) whilst fostering an appreciation that the level of psychological resilience, and thus the experience of mental health vulnerability, is likely to differ between individuals who experience very similar social challenges. In doing so, it addresses concerns that understanding universal vulnerability should avoid generalisations that are oblivious to context or circumstance (e.g. Dunn et al., Reference Dunn, Clare and Holland2008; Luna, Reference Luna2009).

Within legal theory itself, Del Mar and Fineman have, separately, sought to address the relevance and significance of vulnerability. Del Mar argues for a ‘relational jurisprudence’ (Reference Del Mar2012, p. 64) that, similar to MacIntyre, recognises human interdependence (ibid., p. 74) whereby vulnerability can be employed ‘as a device to study law's role in the quality of relations, thereby enabling both understanding and criticism of law’ (ibid., p. 73). Del Mar characterises vulnerability as ‘a factual-evaluative complex’ (ibid., p. 63), observing that ‘to characterise someone as vulnerable is to take an evaluative stance, i.e. to think that someone who is in danger of harm or suffering is worthy of being protected against such a danger being actualised’ (ibid.), where such worthiness is seen in terms of the particular context that gives rise to this susceptibility (ibid.). Since the factual dimension simply provides a concrete point of reference for the experiential context of vulnerability, evaluation appears to function as the more significant dimension. This normative approach, which Del Mar claims to obviate a rigid fact-value distinction (ibid.), is foregrounded elsewhere in the very basis of Fineman's ‘vulnerability thesis’, which is a moral argument ‘for a more responsive state and a more egalitarian society’ (Reference Fineman2008, p. 1) and is echoed in theoretically orientated substantive legal scholarship, such as by Collins, who suggests in the context of family law ‘that identifying vulnerability requires an evaluative judgment’ (Reference Collins, Wallbank and Herring2014, p. 29), and by Stychin in the context of tort law, who observes that vulnerability can enlarge ‘our legal imagination in terms of how we approach the fundamental ethical question of our responsibilities towards others in law’ (Reference Stychin2012, p. 351).

As part of the critical potential of vulnerability, Del Mar goes on to suggest:

Mental health would seem to be precisely one such aspect of vulnerability that justifies the focus of legal theory. Indeed, Del Mar gestures towards it when he refers to ‘harms or forms of suffering that are psychological’ (ibid., p. 74) as an increasingly frequent use of vulnerability (citing Turner, Reference Turner2006, p. 28, who offers a similar view), claiming ‘we must overcome the theoretical bias to associate vulnerability with purely physical terms’ (Del Mar, Reference Del Mar2012, p. 74). Del Mar's claim about law causing or inflaming vulnerability (ibid., p. 65) echoes other views on the potential problematic impact of legal frameworks and reasoning in mental health, capacity and adult social care (e.g. Dunn et al., Reference Dunn, Clare and Holland2008; Clough, Reference Clough2015), as well as the central claim behind therapeutic jurisprudence that legal phenomena ‘impose consequences on the mental health and emotional wellbeing of those affected’ (Winick, Reference Winick, Brooks-Gordon and Freeman2006, p. 32). Yet, what is perhaps most relevant within Del Mar's argument for a theory of mental health vulnerability is the observation that ‘the law manages vulnerability, rather than simply protects it’ (Reference Del Mar2012, p. 76). This suggests a deeper and more nuanced engagement with vulnerability than conventional jurisprudential understandings of vulnerability offer (Hart, Reference Hart1961/2012, pp. 194–195) or which neoliberal understandings of resilience allow (‘in which vulnerable subjects must train to be adaptable’ (Schott, Reference Schott2013, p. 211)) and does not suppose an unattainable quest towards eliminating vulnerability (Gilson, Reference Gilson2014, p. 16). Instead, it offers a more ‘proactive’ (Del Mar, Reference Del Mar2012, p. 75) basis for the relationship between law and vulnerability, paralleling Fineman's ‘responsive state’ argument (Fineman, Reference Fineman2010, pp. 255–256, 260, 273–275). For example, opportunities for this proactivity exist in the legislative requirement enshrined in the Health and Social Care Act 2012, section 1(1)(a–b) in England and Wales to promote a health service that has the explicit aim of ‘secur[ing] improvement … in the … mental health of the people of England’ (s. 1(1)(a), emphasis added) as well as ‘the prevention, diagnosis and treatment of … mental illness’ (s. 1(1)(b), emphasis added). As such, approaches to managing mental health vulnerability in law can be understood as extending to mental health promotion and preventive measures that are applicable to all citizens (such as those indicated in the report by the UN special rapporteur on the right to health (United Nations General Assembly, 2017) and by the Mental Health Task Force in England (2016) rather than being overwhelmingly focused on conventional ‘reactive’ legal frameworks regulating the use of civil detention powers and psychiatric treatments for people with severe mental health problems, such as the Mental Health Act 1983.

Fineman's seminal contribution also encompasses the idea of law's management of vulnerability (Reference Fineman2008, p. 1), though by focusing upon the relationship between universal vulnerability – specifically, the vulnerable citizen or ‘subject’ – and substantive (in)equality in order to construct a justification of how and why the state should respond (ibid.; Fineman, Reference Fineman2010). Although questions relevant to mental health vulnerability are not addressed directly, Fineman's distinction between vulnerability and dependency is particularly relevant for developing a theory of mental health vulnerability, as the constrained resilience of heightened lived experiences of mental health vulnerability can often involve forms of dependence that persist over time – for example, on psychotherapeutic, psychopharmacological or community mental health-care support and provision. This may lead one to question whether mental health vulnerability can be distinguished from dependency.

Fineman's distinction between vulnerability and dependency turns upon the difference between universality and constancy: on this account, vulnerability is universal and constant, whereas dependency is universal but not constant (Reference Fineman2008, p. 9, n. 25). Rather, dependency occurs in an intermittent and unpredictable way and is ‘largely developmental in nature’ (ibid.). Mental health vulnerability may still be seen as distinct from dependency for three reasons. First, the dimensional element of mental health in which psychological well-being is present or absent by degrees means that dependency will not always take the same form, be required to the same extent or even be needed in certain forms at all. By contrast, mental health vulnerability is a constant feature of our universal vulnerability, irrespective of whether our mental health happens to be good, average or poor at any time. Second, the psychosocial element of mental health vulnerability draws attention to the social determinants of mental health that require sustained collective political and legal action to address rather than dependency on mental health care. As Kinderman puts it, ‘[i]f we are to protect people's mental health, we need wider social or even political change’ (Reference Kinderman2014, p. 39). Since the universality of our common vulnerability provides the moral impetus for political and legal action required to address mental health vulnerability, this suggests a progressive normative direction for Del Mar and Fineman's idea of law's role in vulnerability management, echoing Fineman's claim that ‘analyses centered around vulnerability are more politically potent than those based on dependency’ (Reference Fineman2008, p. 12). Third, the subjective-evaluative nature of mental well-being is necessarily a first-person experience in which we apprehend our own identity and its positive and negative changes over time. While others are needed to create and maintain the resilience to engage in this process, their involvement cannot be explained wholly in terms of dependence but instead by facilitating ‘positive interactions between the personal and the social’ (Tew, Reference Tew2011, p. 20). When combined with law's role in vulnerability management, a constructive social context opens the possibility of giving all citizens – including but not limited to people who use mental health services – influence in terms of how their subjective-evaluative experience of mental health can be used to improve law and policy (e.g. United Nations General Assembly, 2017, para. 42).

What emerges from the above discussion is a clear normative dimension to universal vulnerability in general and to mental health vulnerability in particular. Mental health vulnerability builds upon MacIntyre's emphasis on webs of support in helping people live through heightened experiences of vulnerability (Reference MacIntyre1999, p. 73) to encompass mutual support to nurture and sustain good mental health. Mental health vulnerability also harnesses Del Mar's account of the critical potential of vulnerability for law (Reference Del Mar2012, p. 73) and Fineman's use of universal vulnerability in the pursuit of equality (Reference Fineman2008, pp. 8–9, 17–22) alongside the idea of ‘proactive’ vulnerability management (Del Mar, Reference Del Mar2012, p. 75) by a ‘responsive state’ (Fineman, Reference Fineman2010, pp. 255–256, 260, 273–275) to focus particular attention on the role of law in advancing social justice in mental health. This is manifested in relation to ensuring widespread availability of mental health promotion measures, timely access to meaningful and high-quality health and social care services, and the wider collective efforts needed to address the social determinants of mental health. These collective efforts include non-discrimination and de-stigmatisation policies (Bielby, Reference Bielby and Bauhn2016, pp. 179–180; Brown et al., Reference Brown, Learmonth and Mackereth2015, p. 13), policies to reduce social and economic inequalities and related social injustice (Barry, Reference Barry2005, Part V; Mental Health Task Force, 2016, pp. 15–20) as well as to efforts to maximise citizens’ participation in the development of law and policy relating to mental health.

In this way, a universal, normative theory of mental health vulnerability is capable of justifying appropriate legal and political responses to support the mental health of all citizens. It is also equipped to facilitate a critical evaluation of – rather than a mere explanation for – proposed legal and policy initiatives in mental health (e.g. Mental Health Task Force, 2016) and the use of the state's legal powers in relation to people with severe mental health problems. In this sense, it supports the creation of resilience-conferring institutions through law (Fineman, Reference Fineman2010, p. 272) and resonates with law's crucial function in delivering social justice more generally (Campbell, Reference Campbell1988, p. 18) – a function that is frequently downplayed due to inadequate explanations of the relationship between social and legal justice and ‘highly misleading’ attempts to distinguish them (ibid., pp. 10, 18). Indeed, such a normative approach is significant in its own right to justify claims about the desirable aims and values of law (West, Reference West2011). For these reasons alone, mental health vulnerability matters considerably to legal theory. With this in mind, we can now turn attention towards the need for justifiable ‘normative framing’ in relation to vulnerability discourse (Brown et al., Reference Brown, Ecclestone and Emmel2017, p. 502). This process grounds the ‘progressive’ meaning of vulnerability (ibid.) in substantive moral and political theory to justify the values that a desirable theory of mental health vulnerability should embody. In order to do this, in the final section, I turn to two mutually reinforcing normative features of mental health vulnerability – rights and care.

4 The normative features of mental health vulnerability: rights and care

Despite their alleged tensions (Brown, Reference Brown2011, p. 316; Herring, Reference Herring2016, p. 1), vulnerability and rights are related conceptually insofar as the former can ground the latter. Turner, one of the few writers who have directly addressed this relationship, takes up this idea, affirming powerfully that ‘human and social rights are juridical expressions of social solidarity, whose foundations rest in the common experience of vulnerability and precariousness’ (Reference Turner2006, pp. 26–27). This resonates strongly with the account of universal vulnerability introduced earlier, as it points to our shared experience of the fragility of human embodiment (Turner, Reference Turner2006, pp. 26–27; Grear, Reference Grear2010, pp. 113, 130–136) as well as the vulnerability of our agency (Beyleveld and Brownsword, Reference Beyleveld and Brownsword2001, pp. 114–117; Bielby, Reference Bielby and Bauhn2016) as the justifying ground for holding rights. Insofar as ‘[t]heories of moral rights are inherently theories about what the basic content of … legal rules should be’ (Steiner, Reference Steiner and Copp2007, p. 460, emphasis in original), it is important that we consider how universal vulnerability may deepen our understanding of moral rights as they apply to the context of mental health. This is due to the status of mental health as a fundamental interest common to all human beings (Bielby, Reference Bielby and Bauhn2016, pp. 175–176) and in order to harness their empowering and protective legal and political benefits for individuals experiencing any level of mental health – good, average or poor (ibid.).

Similarly, vulnerability is also a concern that lies at the heart of care ethics (Herring, Reference Herring2013, pp. 50–53, 55–56). This is perhaps unsurprising given that caring can be defined as ‘everything we do directly to help individuals to meet their vital biological needs, develop or maintain their basic capabilities, and avoid or alleviate unnecessary or unwanted pain and suffering, so that they can survive, develop, and function in society’ (Engster, Reference Engster2007, pp. 28–29, emphasis in original), which comprehensively acknowledges the ways in which we are all vulnerable. Yet much thinking in care ethics is reticent about harnessing rights in support of care (Engster, Reference Engster2007, p. 53). This is a consequence of the moral primacy of relationships and interdependence, particularity and attention to context in care ethics above supposedly more abstract principles such as justice and rights (Held, Reference Held2006, pp. 9–13; Engster, Reference Engster2007, p. 2; Herring, Reference Herring2013, pp. 46–47). But, far from being ‘antagonistic’ with rights (Held, Reference Held2006, p. 140), rights and care in the context of mental health vulnerability are mutually supportive, rather than mutually opposed, for the two reasons I set out below. In bringing together rights and care, the normative foundations of mental health vulnerability are less exposed to the criticism that rights tend towards unhelpful abstraction and inattentiveness to context (Held, Reference Held2006, p. 140) and, by emphasising the particular, less inclined to overlook the subjective-evaluative experience of mental health vulnerability. In pursuing this aim, to echo Grear, we can bridge universal ethical and legal human rights norms and particular lived experiences (Reference Grear2010, p. 167).

The first ground in which rights and care can be brought together as normative features of mental health vulnerability draws upon Engster's account of having a rationally justified obligation to care founded on the moral right to be cared for (Reference Engster2007, Chapter 1, esp. pp. 45–53). The advantage of this is that it has greater epistemological force to justify the moral imperative of caring to those who may be otherwise doubtful of its moral significance (Engster, Reference Engster2007, p. 37). By the same token, those who believe that the moral motivation to care derives from empathy rather than obligation (Engster, Reference Engster2007, p. 36) may be reluctant to accept such a justification. But the ‘spotlight’ that empathy shines can be limited to those who are close to us (Bloom, Reference Bloom2016, p. 34) – indeed, as Kultgren points out, ‘[c]are is too important to be left to the vicissitudes of family affiliation and friendship’ (Reference Kultgren1995, p. 30). In the context of mental health vulnerability, despite noticeable improvements in recent years, ignorance, bigotry and stigma still all too often taint attitudes towards mental health, especially mental health distress (Dean and Phillips, Reference Dean and Phillips2016), highlighting an ongoing dearth of empathic and compassionate attitudes that can influence negative outcomes for those experiencing mental health problems (Goldie et al., Reference Goldie2016, pp. 29–31). This lack of compassion is most starkly reflected in the levels of discrimination against, and the continuing social exclusion of, people with severe mental health problems in law and in society (Randall et al., Reference Randall, Dudley, Silove and Gale2012). Here, ‘a right to care’ (Engster, Reference Engster2007, p. 53) becomes especially urgent. Since this draws upon a rationalist rather than an intuitive moral epistemology, its explanatory power to persuade us why care should be a feature our moral relationships beyond those closest to us is enlarged (Engster, Reference Engster2007, p. 37), remedying ‘parochial applications of our sympathy and compassion’ (ibid.). This furthers the solidaristic understanding of vulnerability outlined earlier (Rogers et al., Reference Rogers, Mackenzie and Dodds2012, pp. 31–32) through highlighting the fundamental connection that exists between us all in terms of our mental health.

Although Engster's ‘right to care’ theory demonstrates one important connection between rights and care, he locates the origin of our moral duties to care in the nature of dependency as opposed to vulnerability (Reference Engster2007, p. 40). But, as explained in the previous section, dependence lacks the constancy of vulnerability, even though both are universal (Fineman, Reference Fineman2008, p. 9, n. 25). Vulnerability has a broader reach as the justificatory ground for a right to care in mental health contexts for three reasons. First, the dimensional element of mental health means that a right to care arises both in cases of low of levels of dependency, such as in counselling or psychotherapy for transient and less severe mental distress, as well as in high levels of dependency, such as in psychiatric treatment for severe and enduring mental health distress. Second, a right to care also arises in relation to the psychosocial element of mental health. It does so in terms of vulnerability management strategies that do not involve dependency on mental health care, such as those that aim to address the social determinants of poor mental health or minimise the prevalence of social harms such as stigma and discrimination. Third, a right to care supports the development of psychological and relational resilience by enabling individuals to understand and cope with their own subjective-evaluative lived experiences of mental health and well-being. Rather than involving dependency as such, it is instead concerned with ‘the internalisation and re-enactment of positive experiences of empowerment, affirmation, achievement and connection’ in ‘co-operative’ social environments (Tew, Reference Tew2011, p. 62, emphasis in original). These reasons highlight how a right to care can be justified more extensively by the universal nature of mental health vulnerability rather than the contingent nature of dependence. Accordingly, the basis of the ‘further argument … necessary in order to show why vulnerability should generate an obligation to care’ (Engster, Reference Engster2007, p. 40) can be shown to exist in relation to mental health.

The second ground on which rights and care can be brought together as a normative feature of mental health vulnerability fuses rights and care as a means to mitigate the imbalances of power in mental health and to reduce inequalities in the social determinants of mental health. These power imbalances are present across many aspects of mental health, such as in psychiatric classification and psychiatric dominance in mental health (Kutchins and Kirk, Reference Kutchins and Kirk1999; Bentall, Reference Bentall2010; Rapley et al., Reference Rapley, Moncrieff, Dillon, Rapley, Moncrieff and Dillon2011, pp. 1–5), to experiences of labelling, stigma, discrimination and the marginalisation of service user narratives (Johnstone, Reference Johnstone2000; Sayce, Reference Sayce2016) along with the differential impact of mental health policy and practice on gender, race, sexuality and socio-economic background (Tew, Reference Tew and Tew2005; Ferns, Reference Ferns and Tew2005; Williams, Reference Williams and Tew2005; Carr, Reference Carr and Tew2005; Morgan et al., Reference Morgan2016, Chapters 5, 6). As we saw in Section 3, inequalities in relation to the social determinants of mental health arise in terms of obstacles that undermine good mental health or prevent mental health thriving. Taken together, their influence has been acknowledged recently in the report by the UN special rapporteur on the right to health, which notes that ‘[t]he crisis in mental health should be managed not as a crisis of individual conditions, but as a crisis of social obstacles which hinders individual rights. Mental health policies should address the “power imbalance” rather than “chemical imbalance”’ (United Nations General Assembly, 2017, para. 86). This approach reinforces the psychosocial understanding of mental health introduced in Section 2.

Again, universal vulnerability offers a promising starting point in terms of bestowing rights to combat power imbalances and inequality. Turner argues that ‘the language of human rights is ultimately the only plausible language for expressing the needs of people with impairment and disability’ (Reference Turner2006, p. 90), since ‘such rights are based on … an idea of human vulnerability that we all share … as human beings’ (ibid., p. 109). This universality is all the more important in the account of mental health vulnerability proposed here, since it does not track psychiatric diagnosis or mental disability alone, but extends beyond this as a subjective-evaluative, psychosocial and dimensional experience of the human condition. It therefore supports the idea that mental health rights include, but just as importantly reach beyond, those conventionally associated with compulsory mental health treatment, mental disability and adult social care (Bielby, Reference Bielby and Bauhn2016, p. 179). But, for mental health rights to embody the qualities of attentiveness, responsiveness and respect associated with care (Engster, Reference Engster2007, p. 30; see further Tew, Reference Tew2011, p. 14), we need to focus on the specific context in which the duties associated with mental health rights are fulfilled. This better accounts for the normative significance of these rights as an ethical response to the unique lived experience of mental health vulnerability.

As a consequence of the psychosocial influences on mental health identified in Section 2, mental health rights should include rights to access mental health promotion and prevention strategies (Bielby, Reference Bielby and Bauhn2016, pp. 179–180) that are available to all citizens. Care is central to the success of these rights. For example, public health psychotherapeutic initiatives such as the IAPT programme in England (Clark, Reference Clark, McHugh and Barlow2012) require attentive concern for the unique lived experience of each individual's mental health distress in the client–therapist relationship. This involves a more particularistic understanding of what fulfilling rights amounts to than simple talk of a duty owed to an abstract rights holder allows. Additionally, aspects of care are visible in international legal human rights provisions relevant to mental health. For example, Article 16, paragraph 4 of the UN CRPD pertaining to protective measures to support the recovery of people with disabilities who are subjected to violence and abuse includes a requirement to consider ‘gender- and age-specific needs’ (United Nations General Assembly, 2006), as well as references to ‘the health, welfare, self-respect, dignity and autonomy of the person’ (ibid.), which, by definition, must be receptive to the particular circumstances of the individual to support their recovery. While the CRPD breaks new ground in how it recognises psychosocial disability rights (Lewis, Reference Lewis, McSherry and Weller2010, p. 98), the broader implications of a care- and rights-based approach to universal mental health vulnerability are all the more politically and legally far-reaching. As Kinderman argues, for a society to foster ‘genuine mental health and well-being we need to protect and promote universal human rights’ (Reference Kinderman2014, pp. 191–192), which means we need to view the scope of mental health prevention strategies broadly to address deep-rooted structural issues such as inequalities in life chances and parenting quality, opportunities for meaningful secure employment and efforts to improve housing and the environment (ibid.; Mental Health Task Force, 2016, pp. 15–20). This highlights a very clear way in which current liberal legal systems would need to change radically to properly accommodate the values of care (Herring, Reference Herring2013, p. 5) in mental health vulnerability. And, of course, such radical changes would require considerable political will in moving beyond socially and economically entrenched neoliberal values that have prevailed across much of the world for the last forty years (Schrecker and Bambra, Reference Schrecker and Bambra2015, Chapter 6). Although the practical implications of this cannot be explored here, we can acknowledge that the relational approach that care brings to rights allows a richer understanding and justification of strategies to address overlapping psychosocial influences on mental health vulnerability. While a focus on rights that negates or downplays care misrepresents what respecting rights involves (see further Bielby, Reference Bielby and Bauhn2016, pp. 181–185), by contrast, a fusion of rights and care can allow rights to ‘be used in progressive ways to protect and promote values of community and mutuality’ (Herring, Reference Herring2016, p. 15).