6.1 Introduction
As discussed in Chapter 1, the primary focus of this book is on the potential of neurotechnology to support the rehabilitation of convicted persons by improving risk assessment and risk management – rather than on its potential for diagnosing and treating mental or brain disorders. Still, in some cases, neurorehabilitation might well become conducive or even crucial to the improvement of mental health in forensic populations. Brain stimulation to attenuate aggressive impulses might serve to reduce the mental distress experienced by some persons subject to these impulses. Furthermore, aggression can be a symptom of a recognised mental illness, such as a psychotic disorder, or may be a core feature of a disorder, as in intermittent explosive disorder. Diminishing aggression using neurotechnology could in such cases be relevant to the person’s mental health, which appears to be an interest protected by human rights law. For example, Article 12 of the International Covenant on Economic, Social and Cultural Rights (ICESCR) recognises a “right to the highest attainable standard of physical and mental health”.
The right to health is sometimes referred to in discussions on human rights vis-à-vis emerging neurotechnologies. For example, Bublitz has highlighted the possibility of human rights comprising positive obligations to provide “access to therapeutic neurotechnologies restoring bodily or mental integrity”, which “may often overlap with the right to health (Article 12 ICESCR)”.Footnote 1 Likewise, in a recent report on neurotechnology and human rights, the Advisory Committee of the Human Rights Council considers the implications of Article 12 ICESCR, holding that when “safe, effective, secure and human-rights compliant neurotechnology products do exist, access becomes a key element of the right to health. States should then grant access, without discrimination”.Footnote 2
In this chapter, we explore whether a right to health could produce an argument in favour of offering neurorehabilitation to some populations of convicted persons. Note, that throughout, we assume that health and the right to health, necessarily encompass mental health. Hence, we take the legal and ethical literature relating to health and the right to health to pertain to mental health. This assumption is not a controversial one. Even though mental health is sometimes overlooked as a component of health,Footnote 3 many contemporary attempts to define health encompass both physical and psychological elements.Footnote 4 For example, according to the preamble of the Constitution of the World Health Organisation (WHO): “Health is a state of complete physical, mental and social well-being.” The relevance of mental health is also stressed in the annual reports of the UN Special Rapporteur on the right to the highest attainable standard of health, emphasising that “there is no health without mental health”.Footnote 5 Hence, in what follows, we understand the right to mental health as a specified right inherent in the right to health.
When considering a right to mental health in the criminal justice context, it is important to realise that a high prevalence of mental illness has consistently been reported within prison populations – including psychosis, depression and personality disorders.Footnote 6 As Gable and Gostin write, “[i]n many countries around the world prisons have become the de facto mental health systems”.Footnote 7 Furthermore, factors related to psychiatric co-morbidity are among the risk factors for suicide attempts in prison.Footnote 8 Additionally, a considerable number of those who offend end up not in prison but in forensic psychiatric institutions. Clearly, these people also need to be taken into account to get an accurate picture of the relevance of mental illness to the criminal justice system.
Criminal justice is thus not just a setting relevant to the right to mental health, but rather one of the most important contexts to which the right applies.Footnote 9 Yet, the criminal justice system’s primary aim is not to treat the mental health issues of those who offend but rather to enact justice, typically by punishing those who offend (e.g., through imprisonment) and also by protecting society against the future harm these individuals may cause (e.g., by detaining them in prison or forensic psychiatric institutions). Mental health needs of those who offend are not the priority of criminal justice, or at least not the direct priority.Footnote 10 And this observation gives us reason to assume that the mental health needs of those who offend will not always be met within criminal justice settings and contexts. There is thus a strong need to consider the legal protection of the mental health of these individuals.
This chapter proceeds as follows. Section 6.2 considers the foundation of the right to mental health, both from a legal and a moral perspective. In section 6.3, we discuss different understandings of “mental health” in relation to the right’s scope, followed by an exploration of the right’s implications for the neurorehabilitation of convicted persons in section 6.4. In section 6.5 we draw conclusions.
6.2 Legal and Moral Bases of a Right to Mental Health
6.2.1 Legal Bases
According to Article 12 ICESCR, the state parties to the Covenant “recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health”.Footnote 11 In the General Comment to this provision, the UN Committee on Economic, Social and Cultural Rights (CESCR) clarifies that the right to health is not to be understood as a right to be healthy but rather as a right to the enjoyment of a variety of facilities, goods, services and conditions necessary for the realisation of the highest attainable standard of health.Footnote 12
The right includes both freedoms (such as the right to control one’s own health) and entitlements (such as the right to a system of health protection and equal opportunity to enjoy the highest attainable standard of health).Footnote 13 States are under an obligation to respect the right to health by, inter alia, “refraining from denying or limiting equal access for all persons, including prisoners or detainees (…) to preventive, curative and palliative health service”.Footnote 14 Within their available resources, state parties should provide, without discrimination, available, accessible and acceptable health facilities, goods and services, which are scientifically and medically appropriate and of good quality.Footnote 15
Unlike the rights and freedoms discussed in the preceding chapters (e.g., the right to privacy, freedom of thought, self-determination), the right to health is a socio-economic right, rather than a civil or political right. Although both categories of rights were adopted together within the Universal Declaration of Human Rights (UDHR),Footnote 16 the international community subsequently decided that both categories are legally different and impose different obligations on states.Footnote 17 This ultimately resulted in two separate binding human rights treaties: the International Covenant on Civil and Political Rights (ICCPR) and the International Covenant on Economic, Social and Cultural Rights (ICESCR).
The obligations imposed on states by these treaties differ in the following ways. Article 2(1) ICCPR requires state parties “to respect and to ensure to all individuals” all civil and political rights enshrined within the ICCPR. By contrast, Article 2(1) ICESCR “only” requires state parties “to take steps, individually and through international assistance and co-operation, especially economic and technical, to the maximum of its available resources, with a view to achieving progressively the full realization of the rights recognized in the present Covenant”.
Leijten explains that “[w]hereas the ICCPR rights are phrased as individual, subjective rights, ICESCR rights merely require states to take steps towards the fulfilment of socio-economic guarantees, subject to the requirement of progressive realization and in the light of the available resources”.Footnote 18 The “progressive realisation” standard acknowledges that “the full realization of all economic, social and cultural rights will generally not be able to be achieved in a short period of time”.Footnote 19 Still, states should “move as expeditiously and effectively as possible towards that goal”Footnote 20 – to the maximum of their available resources, including financial, natural and scientific resources.Footnote 21 According to Nowak, the difference between these obligations and those deriving from civil and political rights “could not have been more drastic”.Footnote 22 As he explains:
Civil and political rights have to be immediately respected and ensured, and every failure of a state party to respect and ensure them can be qualified as a violation of the respective obligation (…). Economic, social and cultural rights, on the contrary, are considered as mere “programme rights”. For states, it seems to be enough to take a few steps, such as asking for international development assistance, in order to prove that they have complied with their respective obligations.Footnote 23
The European Convention on Human Rights (ECHR) typically refers to civil and political rights and does not guarantee, explicitly, a right to health.Footnote 24 However, the European Court of Human Rights (ECtHR) holds that “[w]hilst the Convention sets forth what are essentially civil and political rights, many of them have implications of a social or economic nature”.Footnote 25 In the ECtHR’s view, there is “no water-tight division” separating socio-economic rights and the rights and freedoms guaranteed within the ECHR.Footnote 26
Overlap between civil or political and socio-economic issues is observable in an expanding number of cases. As Leijten points out, a “vast number of health- and health care-related decisions and judgements can be found in the ECtHR’s case law”Footnote 27 – particularly in relation to Articles 2, 3 and 8 ECHR.Footnote 28 According to the Grand Chamber, member states are under a “positive obligation, by virtue of the relevant provisions of the Convention, notably Articles 2 and 8, to take appropriate measures to protect the life and health of those within their jurisdiction”.Footnote 29 Article 3 ECHR additionally requires that states ensure that the health and well-being of imprisoned persons in particular are adequately secured, inter alia, by providing them with the requisite medical assistance.Footnote 30 Similar reasoning is employed with respect to the ICCPR, where the Human Rights Committee indicates that the right to life (Article 6 ICCPR) and the right to humane treatment (Article 10 ICCPR) could “raise issues” with respect to the protection of health in detention.Footnote 31
In sum, safeguarding people’s physical and mental health has a clear basis in the established framework of human rights – either explicitly, as a socio-economic right, or implicitly, as a positive obligation inherent in civil and political rights.
6.2.2 Moral Bases
Various moral rationales also support protecting a right to mental health, three of which we detail here. A first (Rawlsian-inspired) moral basis for a right to mental health sees the right as important for protecting persons’ moral right to fair equality of opportunity.Footnote 32 Daniels, for instance, contends that enjoying a certain threshold of physical and mental health is essential for persons to have a “normal opportunity range”.Footnote 33 He further argues that our right to health is grounded in our moral claim to healthcare provision which – by “reducing the impact of disease and disability” – “protect[s] the range of opportunities open to us”.Footnote 34
A second moral basis for the right to mental health is provided by Nussbaum, and developed further by Ruger (though these scholars do not use the language of “rights” when discussing their claims).Footnote 35 Nussbaum and Ruger argue that securing the capability of health is necessary for justice – and not just because having a certain level of health is necessary to secure equality of opportunity (as Daniels suggests) but rather because securing health capabilities is intrinsically important for justice. Nussbaum argues that a just state ought to make certain human capabilities including “bodily health” available to its citizens, where capabilities are those “capacities, liberties, and opportunities that have value in any plan of life citizens may (…) choose”.Footnote 36 The protection of mental health is arguably also implicit in Nussbaum’s account. As Fourie points out, Nussbaum’s reference to bodily health plausibly “include[s] the physical and mental health associated with a common-sense understanding of the biological functioning of the body”.Footnote 37 Nussbaum’s reference to emotions and the importance of “not having one’s emotional development blighted by fear and anxiety” could also be interpreted as a reference to mental health.Footnote 38 Building on Nussbaum’s work, Ruger suggests that the state should additionally protect some “complex” health capabilities, such as the “capability to take part in the life of the community”, the “capability to engage in various forms of social interaction” and the “capability to enjoy recreational activities”Footnote 39 – all of which are clearly relevant for, and may be conducive to health and well-being, both physical and mental.Footnote 40
A third moral basis for a right to health is, what might be described as, a rule-consequentialist justification.Footnote 41 The idea here is that we recognise a right to health, not because persons have any individual moral claim to health care provision but because protecting citizens’ health by means of a right to health care brings about the best consequences for society overall. We can readily envisage the many ways in which a legal right to health would be good for society. There are the well-being benefits that may accrue to persons if they themselves enjoy good health; the well-being benefits that may accrue to us when the health of those we care about is protected; and the second-order benefits of protecting health, such as the boost it might provide to economic growth, employment, societal productivity etc.Footnote 42 One good societal consequence in protecting mental health specifically is plausibly that doing so reduces the incidence of violent and/or aggressive outbursts that stem from mental ill-health – and also the mental distress such outbursts often cause, for both victims and perpetrators. As Green points out, there is a “clearcut association between (…) aggressive behaviors and mental and substance abuse disorders” and this represents one “way in which mental illness detracts from the common good”.Footnote 43 A right to mental health might thus be desirable for several reasons, and not only because upholding such a right promises to benefit those suffering from ill-health.
Note that depending on which (or which combination) of moral bases for a right to mental health we favour, we may arrive at different conclusions about the right to mental health’s protective scope. If persons have a moral claim to the capability of health, then the right to health may encompass not just a right to health services but also a right to other goods and conditions (e.g., to certain living and working conditions) necessary to realise health. This seems in line with the CESCR’s observation that the right to health is a right to the enjoyment of a variety of facilities, goods, services and conditions that promote health (though Nussbaum speaks of merely being able to have “good health” as opposed to the CESCR’s reference to the “highest attainable standard of health”).
Alternatively, if we follow Daniels and see the right to health as grounded in persons’ moral claim to fair equality of opportunity, then the right will be to the health-related “care that effectively (…) protects the range of opportunities that would otherwise be open to us”.Footnote 44 Daniels himself thinks that this limits the scope of the right to health to solely those treatments that “effectively promote normal functioning” and which treat medically recognised diseases or disorders,Footnote 45 though, in our view, it is not obvious this is the case.Footnote 46 But working with a “fair equality of opportunity” justification clearly limits the right to health in other ways – for example, it limits the right to a more basic standard of health care than the “highest attainable standard” that Article 12 CESCR suggests. A rule-consequentialist justification, if favoured, also does this. Some kinds of healthcare services likely do not, as a general rule, produce more net welfare when provided – for example, interventions that are extremely costly and benefit few. We turn to consider the scope of the right to mental health in the next section.
6.3 What Is Mental Health? Considering the Scope of a Right to Mental Health
What precisely is covered by the concept of “mental health”? At least on a folk understanding, the “mental” of mental health is typically understood to pertain to the emotional and/or psychological realm – that is, to a person’s thinking, inclinations and feelings, which are often reflected in behaviour or behavioural patterns. That said, a clear-cut distinction between mental and physical health is difficult to draw: often both are connected. Many health conditions involve mental and physical symptoms and can have both mental and physical causes. Consider how a patient with hyperthyroidism may have osteoporosis and cardiac arrythmias as well as anxiety as symptoms.Footnote 47 Consider, too, how mental or psychological factors such as stress may increase a person’s susceptibility to physical illnessFootnote 48 and how genetic factors may increase a person’s likelihood of developing a mental disorder.Footnote 49 In fact, a considerable part of the research on mental health has been biological (brain-oriented) in nature.Footnote 50 When talking about mental health, in this chapter, therefore, we work on the assumption that the reference to “mental” concerns emotional and psychological matters, while acknowledging that there are overlaps, and no clear cut-off point, between mental and physical health.
What, then, is mental health? We consider this question below, first, from a conceptual perspective, followed by the approach in human rights law.
6.3.1 Positive and Negative Conceptions of Mental Health
From a conceptual perspective, two general understandings of “health” can be distinguished.Footnote 51 The first, more restricted understanding, is that health refers to the absence of medically recognised and described illnesses or disorders.Footnote 52 In the realm of mental health, examples of such disorders are major depression, psychosis and personality disorders – which fall within the scope of psychiatry as a medical discipline. The second, broader, understanding conceives of mental health in terms of mental well-being. This well-being-based concept is sometimes referred to as a “positive” conceptualisation of mental health, as opposed to the “negative” understanding of absence of disease.Footnote 53
We consider both positions in more detail below and illustrate their normative relevance when considering neurorehabilitation in view of a right to “mental health”. Our discussion is organised around three hypothetical scenarios, each of which involve brain stimulation that targets the neural correlates of a convicted person’s aggressive outbursts. In these scenarios, the relevance of a mental disorder moves from central to peripheral to absent. In each of them we assume that the convicted person desires to have access to the neurotechnology, is fully informed about it and voluntarily chooses to submit to it. We also assume that the technology is safe and effective.
Scenario 1: “A mental disorder”. Alex has been convicted of a violent crime and has received a diagnosis of intermittent explosive disorder, which is characterised by recurrent behavioural outbursts representing a failure to control aggressive impulses (DSM-5, code 312.34). These outbursts are core features of Alex’s mental disorder. They risk dangerous and harmful behaviour and hamper Alex’s successful rehabilitation. The outbursts can be targeted and attenuated with brain stimulation.
Scenario 2: “Causing distress”. Sophie has been convicted of a violent crime but her aggressive outbursts do not meet the criteria for diagnosis of intermittent explosive disorder, nor for other mental disorders of which aggressive outbursts may be a component. Meanwhile, these aggressive outbursts cause Sophie mental distress and she is considerably troubled by these outbursts and does not wish to have them. These outbursts also risk dangerous and harmful behaviour and hamper Sophie’s rehabilitation. They can be targeted and attenuated with brain stimulation.
Scenario 3: “Hindering social contribution”. Lou has been convicted of a violent crime but their aggressive outbursts again do not meet the criteria for diagnosis of a mental disorder. These outbursts do not cause Lou mental distress in and of themselves. They do, however, hinder Lou’s maintenance of a job and various social relationships and this is something Lou regrets. These outbursts directly hamper Lou’s rehabilitation and can be targeted and attenuated with brain stimulation.
To what extent does the use of brain stimulation in these scenarios contribute to the person’s mental health? The answer to this question depends on whether we are working with a positive or negative conceptualisation of mental health, as alluded to earlier in this section.
Consider first the “negative” understanding of mental health – as the absence of medically recognised mental disorders, leading us to the question: What is a mental disorder and when is it either present or absent? Many definitions of mental illness have been proposed and criticised, and precisely what a mental disorder consists in remains an area of intense scholarly debate.Footnote 54 The DSM-5 defines a mental disorder as
a syndrome characterized by clinically significant disturbance in an individual’s cognition, emotion regulation, or behavior that reflects a dysfunction in the psychological, biological, or developmental processes underlying mental functioning. Mental disorders are usually associated with significant distress or disability in social, occupational or other important activities. An expectable or culturally approved response to a common stressor or loss, such as the death of a loved one, is not a mental disorder. Socially deviant behavior (e.g., political, religious, or sexual) and conflicts that are primarily between the individual and society are not mental disorders unless the deviance or conflict results from a dysfunction in the individual, as described above.Footnote 55
Interestingly, this general definition, though conceptually informative, does not play a direct role in mental healthcare diagnoses. Rather, diagnoses are made by healthcare professionals assessing whether a given patient meets the criteria for a specific disorder, such as depression, psychosis or bipolar disorder. These diagnostic criteria are intended to promote consistency across, and standardise, mental healthcare diagnoses. There is, however, always the possibility of differences in interpretation when consulting the criteria for a given disorder. Criteria sometimes change such that the boundaries of a given mental disorder can shift from time to time.Footnote 56 There are also different diagnostic classification systems – such as the DSM and International Statistical Classification of Diseases and Related Health Problems (ICD)Footnote 57 – with disparate (though considerably overlapping) criteria for specific disorders. In saying, then, that the negative understanding equates mental health to the absence of a specific diagnosable mental disorder, this understanding acknowledges that the boundaries of mental health can, and will, change over time, as the diagnostic criteria are constantly evolving. Our assumption for present purposes is that this negative understanding implies that a person has mental health when they do not meet the criteria for a specific disorder detailed in the current edition of the relevant diagnostic classification systems.
What does this negative understanding of mental health imply for the three scenarios described above? It implies, firstly, that Alex’s receipt of brain stimulation in the first scenario contributes to his mental health. Alex meets the criteria for diagnosis of intermittent explosive disorder; the brain stimulation targets a core symptom or feature of this disorder; and, as we stipulated, the brain stimulation in this case can be expected to be effective.
The negative understanding of mental health implies, secondly, that the described brain stimulation does not advance mental health in Scenarios 2 (involving Sophie) and 3 (involving Lou). Both Sophie and Lou do not, after all, and as per our stipulation, meet the criteria for diagnosis of a mental disorder.
Consider next the “positive” conceptualisation of mental health, and let us look to the understanding advanced by the WHO, conceiving of mental health as
a state of well-being in which the individual realises his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community.Footnote 58
On this understanding, mental health is “more than the absence of mental illness”.Footnote 59 Rather, it is understood broadly. Recall how the WHO’s preamble to their Constitution describes health more generally as “a state of complete physical, mental and social well-being”.Footnote 60 As Wren-Lewis and Alexandrova emphasise, in the eyes of the WHO, for a person to realise mental health “it is not enough to be free of depression, anxiety, or schizophrenia, or any other diagnosable psychiatric condition; one also needs to be well enough to thrive and flourish in one’s community”.Footnote 61 Mental health is thus intimately connected to how a person functions and flourishes within their own community; and as such, the WHO understanding of mental health has affinities with Ruger’s earlier-mentioned “complex health capabilities”.Footnote 62
On this positive understanding of mental health, targeting aggressive outbursts with brain stimulation is plausibly conducive to mental health in all three of the above scenarios of Alex, Sophie and Lou. Taking them in reverse order, targeting Lou’s aggressive outbursts via brain stimulation may make it easier for Lou to hold down a job and to cultivate and maintain meaningful social relationships. These effects would clearly also allow Lou to make a greater contribution to their community, as per the WHO understanding of mental health above.Footnote 63 In the case of Sophie, brain stimulation that reduces her aggressive outbursts will relieve Sophie’s considerable mental distress. And attenuating the very thing that challenges Sophie’s peace of mind would bring her closer to “a state of complete physical, mental and social well-being,” as the WHO describes, thus contributing to her mental health on this understanding. As far as the brain stimulation also facilitates Sophie’s functioning and flourishing in the community, it would fall under the WHO’s conceptualisation of health as “a state of well-being in which the individual (…) can work productively and fruitfully, and is able to make a contribution to his or her community”.Footnote 64
Looking lastly to the case of Alex, his aggressive outbursts, we stipulated, are a symptom of a recognised mental disorder – specifically, intermittent explosive disorder. Treating or managing this disorder via safe and effective brain stimulation clearly brings Alex closer to that “state of complete physical, mental and social well-being,” the WHO describes. Thus, on this positive conceptualisation of health, the brain stimulation would be conducive to Alex’s mental health.
Note that the WHO’s definition of mental health has been criticised for being too demanding and unhelpful for the scientific measurement of health.Footnote 65 Smith describes it as “a ludicrous definition that would leave most of us unhealthy most of the time”.Footnote 66 Wren-Lewis and Alexandrova voice similar concerns regarding the WHO’s definition of mental health: “it is incredibly demanding: it describes a life in which individuals realize their full potential, as well as work productively and contribute to their community. Not many people meet such high standards”.Footnote 67
Wren-Lewis and Alexandrova propose conceptualising mental health in an alternative way, as having the capacities “to feel, think, and act in ways that enable us to value and engage in life”.Footnote 68 This conceptualisation centres on “valuing” and “engaging” in life, instead of focusing on “well-being”. Still, the emphasis on cognitive, emotional and behavioural functioning – and the lack of reference to mental disorders specifically – may mean that Wren-Lewis and Alexandrova are also understanding mental health broadly, as a form of mental well-being. Moreover, if mental health consists in having the cognitive, emotional and behavioural capacities for valuing and engaging in life, then attenuating the aggressive outbursts of the above protagonists via brain stimulation appears conducive to their mental health on Wren-Lewis and Alexandrova’s understanding too. Lou’s aggressive outbursts are, after all, impeding their ability to engage with others socially and to hold down a job – two things that are likely important (though by no means the only) routes by which a person can engage with, and derive value from, life. The fact that Sophie’s aggressive outbursts cause her to experience mental distress suggests that these actions do not allow her to derive value from and to engage in life in the manner that she wishes. And given that Alex’s diagnosis of intermittent explosive disorder implies either that Alex is experiencing marked distress or has problems with occupational or interpersonal functioning, then Alex’s ability to value and engage in life is plausibly undermined too, prior to brain stimulation.
Other examples of positive definitions could be given,Footnote 69 but we hope these suffice as an illustration of what such positive conceptualisations would generally entail. All in all, it appears that the scope of a right tomental health can be interpreted in at least two different ways: (1) as a right to treatment for (diagnosed) mental disorders, and (2) as a right to the protection and promotion of mental well-being or human flourishing, with an emphasis on social functioning.
6.3.2 Mental Health in Human Rights Law
Which understanding of mental health can be found in human rights law? Seemingly, a positive understanding, but not necessarily as broad an understanding as that which is advanced by the WHO.
At the international level, and referring to “the right to mental health and well-being”,Footnote 70 the Special Rapporteur on the right to the highest attainable standard of physical and mental health indicates that Article 12 ICESCR protects “mental well-being”Footnote 71 – something that is clearly broader than the mere absence of medically recognised mental disorders. The Rapporteur also acknowledges – as we did above – that “[t]erminology in the sphere of mental health is a contested terrain”, and that there is a need to accept “different terms according to how people define their own experiences of mental health”.Footnote 72 This might be interpreted as indicating that the Rapporteur considers mental health to be broader than the diagnostic categories of psychiatric medicine, including, perhaps, persons’ own experience of and perspectives on their mental health – though the Rapporteur’s statement here is open to other interpretations. The Special Rapporteur’s annual report of 2015, meanwhile, explicitly connects mental health with mental (or more precisely, emotional and social) well-being:
The modern understanding of mental health includes good emotional and social well-being, healthy non-violent relations between individuals and groups, with mutual trust of, tolerance of and respect for the dignity of every person.Footnote 73
We thus have good reason to believe that a positive understanding of mental health operates at the international level. It is also noteworthy that “non-violent relations” are mentioned here, suggesting relevance for the rehabilitation of those who have committed violent offences. Still, we cannot yet conclude that international human rights law works with as broad an understanding as that found within the WHO’s definition of mental health – that is, to include “complete” mental well-being – notwithstanding that Article 12 ICESCR speaks of “the highest attainable standard of health”. The highest attainable standard of health, after all, may still not consist in complete mental well-being.
As discussed, the ECHR does not guarantee a right to (mental) health as such. Rather, positive obligations to protect and foster people’s mental health are implicit in the civil and political rights guaranteed by the Convention, such as the right to life and the right to bodily and mental integrity. In the criminal justice context, alleged violations of human rights relating to mental health often consist in convicted persons claiming to have received insufficient psychological or psychiatric treatment for a diagnosed mental disorder, like in prison.Footnote 74 For example, in a number of cases concerning the prohibition of ill-treatment, the ECtHR held that regarding “the treatment of prisoners with mental-health problems (…) Article 3 of the Convention requires States to ensure that the health and well-being of prisoners are adequately secured by, among other things, providing them with the requisite medical assistance”.Footnote 75 There is thus reason to assume that the protection of mental health under the ECHR includes, or at least closely relates to, the protection of well-being.
Case law pertaining to the right to liberty pursuant to Article 5 ECHR seems to go a step further, by subsuming a person’s “dangerousness” under the umbrella of mental health:
Any detention of mentally ill persons must have a therapeutic purpose, aimed specifically, and in so far as possible, at curing or alleviating their mental-health condition, including, where appropriate, bringing about a reduction in or control over their dangerousness.Footnote 76
This quote clearly suggests that, according to the ECtHR, reducing a person’s dangerousness can be seen as (an element of) improving their mental health.
In a recent case, the ECtHR likewise considered that for the detention of a “person of unsound mind” to be lawful, it must take account of whether an “individualised treatment plan was put in place”.Footnote 77 This should include attending to specific needs of the person’s mental health, and should be “aimed specifically, in so far as possible, at curing or alleviating his condition, including, where appropriate, bringing about a reduction in or control over the level of danger posed, with a view to preparing him for possible future reintegration into society.”Footnote 78
These considerations seem to support a broader understanding of mental health than the absence of diagnosed mental disorders, which could include treatment for reducing a person’s dangerousness too. This reduction is directly linked to the goal of reintegration into society. Still, from the available ECtHR case law, it is not obvious that the right to mental health is a right to those freedoms and entitlements that enable the state of “complete” well-being described by the WHO. There is, nonetheless, reason to believe that human rights law – both international and European – supports a positive obligation to safeguard mental well-being to at least some extent; and that European human rights law also includes a positive obligation, for reasons of mental health, to bring about a reduction in persons’ dangerousness.Footnote 79 This suggests that all three scenarios above (concerning Alex, Sophie and Lou) might invoke concerns about mental health from a human rights perspective, given that the protagonists’ well-being and dangerousness are at issue in each.
6.4 A State Duty to Provide Neurorehabilitation?
In the remainder of this chapter, we assume a positive conceptualisation of mental health akin to that found in human rights law, including the protection of well-being and the reduction of dangerousness. Let us also assume that at least some neurointerventions will contribute to a convicted person’s mental health on this positive conceptualisation. Given these assumptions, when might the right to mental health successfully be invoked by a convicted person to support their being provided with safe and effective neurorehabilitation?
There are perhaps two kinds of situations where the right to mental health could successfully be invoked, at least in theory. The first is when access to affordable, accepted and generally available neurointerventions is necessary for preserving and/or restoring a reasonable standard of mental health. The second is when access to affordable, accepted and generally available neurointerventions makes preserving a reasonable standard of mental health substantially easier than an approach that eschews neurorehabilitation.
Four things to note about our reference to “affordable”, “accepted”, “generally available” and “reasonable standard”. First, for there to be any chance of someone successfully invoking the right to mental health to make a claim to receive neurorehabilitation, it must be the case that neurorehabilitation is not too costly. Recall our earlier highlighting of how the right to health of Article 12 ICESCR, including mental health, is subject to a progressive realisation standard such that the precise healthcare provision required of states depends at least in part on their available resources. Consider, too, that all “positive” rights – that is, rights that require state provision of goods, services etc. – will necessarily be limited by resource considerations, at least to some extent. Regarding the ECHR, Leijten observes that the ECtHR leaves room for making choices, in view of the available recourses, regarding which and to whom care is provided, as long as an adequate standard of care is generally met. When an omission in providing certain health care is not in conflict with domestic procedural rules or requirements, “a complaint about expensive or unauthorized medication seems unlikely to be successful.”Footnote 80 Neurorehabilitation will thus have to be reasonably affordable if an argument for its provision from the right to mental health is to get off the ground. Whether or not it will be is an empirical matter, and the answer is yet unclear. On the one hand, neurotechnological interventions are currently expensive.Footnote 81 However, they may in the future turn out to be more cost-effective than some alternatives – perhaps when compared to the cost of delivering long-term (unsuccessful) psychotherapies within a prison or other detention setting.Footnote 82
Secondly, the reference to “accepted” denotes “scientifically accepted” or “scientifically proven” interventions. It seems clear that the ECtHR and the CESCR have little appetite for an interpretation of the right to health that includes a right to access “experimental” treatments. The ECtHR ruled in the case of Hristozov and Others/Bulgaria that there was no violation of Articles 2, 3 and 8 ECHR in refusing to allow the applicants access to an unauthorised experimental cancer treatment – even though conventional treatments for cancer had been exhausted.Footnote 83 Elsewhere, the ECtHR rejected an applicant’s claim to access an unproven, experimental therapy for degenerative cerebral illness, declaring the application inadmissible under Articles 8 and 14, at least in part because “the therapeutic value of the [therapy in question] had, to date, not yet been proven scientifically”.Footnote 84 Similar patterns can be observed at the international level, where Article 12 ICESCR implies that health facilities, goods and services must be “scientifically and medically appropriate and of good quality”.Footnote 85
The third thing to note is our reference to “generally available” interventions. It seems that success in invoking the right to mental health to support access to neurorehabilitation can only occur when the relevant neurointerventions are also available to the wider populace and when their provision does not conflict with a given jurisdiction’s domestic law. Jurisprudence related to the right to health seems to illustrate this. Consider how the ECtHR found a breach of Article 3 ECHR when a given applicant was not provided with reproductive diagnostic services – and hence deprived of the opportunity to make a decision to have a legal abortion (should the results have satisfied the conditions for permissible abortion) – when the “services which she had requested were at all times available and that she was entitled as a matter if domestic law to avail herself of them”.Footnote 86 Consider, alternatively, how the ECtHR denied a breach of Article 3 ECHR in a different case: when the requested treatment – in this case medicinal cannabis – was not legally permitted in the relevant jurisdiction.Footnote 87
The relevance of existing domestic practices for successful invocation of the right to health is also evident in the EU Charter of Fundamental Rights’ (CFR) reference to “the right to benefit from medical treatment under the conditions established by national laws and practices” (Article 35 CFR). It is further evident in the ECtHR’s observation about incarcerated persons specifically: that they are entitled to health treatment, “at a level comparable to that which the State authorities have committed themselves to provide to the population as a whole”.Footnote 88 Moving to the international context, the CESCR’s reference to the necessity of “health facilities, goods and services [being] accessible to everyone without discrimination, within the jurisdiction of the State party”, in its discussion of Article 12 ICESCR, suggests a similar line of reasoning.Footnote 89 Indeed, the CESCR specifically references “vulnerable or marginalised sections of the population”,Footnote 90 which plausibly includes those who are incarcerated.Footnote 91 The CESCR indicates that vulnerable or marginalised groups should not be deprived of access to health services that are enjoyed by other sections of the population, emphasising that access is “especially” important in situations of vulnerability.Footnote 92 For access to neurorehabilitation to come under the remit of the right to mental health, then, it seems that the relevant technology – such as tDCS, TMS or DBS – must be legally available and more generally accessible, within a given jurisdiction. At present, TMS and DBS are FDA-approved and available in health care for the treatment of different mental disorders.Footnote 93
Note, fourthly, that our reference to “reasonable standard” is included so as to take the “progressive realisation” caveat on the right to health into account. Invoking the right to mental health to support a claim to neurorehabilitation is unlikely to be successful unless the affected applicant’s mental health is judged to be lower than a minimally adequate standard, notwithstanding that Article 12 ICESCR stresses health optimisation. In practice, if the applicant’s mental health is deemed minimally adequate (even if still not excellent), the fact that the right is subject to progressive realisation may preclude the possibility of a rights claim successfully being invoked.
Returning now to the two kinds of situations where (we think) the right to mental health might support a claim to neurorehabilitation, the first is where affordable, accepted and available neurorehabilitation is necessary for realising a reasonable standard of mental health. Clearly, human rights treaties do not provide for a right to all and every treatment option in cases of poor mental health. Within the context of Article 5(1) ECHR, the ECtHR “affords the authorities a certain latitude with regard both to the form and the content of the therapeutic care or of the medical programme” to be adopted, and hence does not guarantee access to any particular treatment.Footnote 94 But when neurorehabilitation is the only remaining option for realising mental health – let’s say alternative measures have been exhausted and either mental disorder, poor emotional or social well-being, or a risk of dangerousness remains – then a case for access to neurorehabilitation could reasonably be mounted. Denying a person the only remaining treatment that might alleviate their mental distress intuitively seems to be cruel and inhumane. The ECtHR has elsewhere judged that the denial of specific and necessary health care violates Article 3 ECHR on some occasions – for example, denying an incarcerated person dentures when they lack teeth,Footnote 95 denying pain-relief for chronic back painFootnote 96 or denying a detainee glasses when their eyesight is defective.Footnote 97 Furthermore, in Murray/the Netherlands, the Court found a violation of Article 3 ECHR because the absence of psychiatric treatment hampered the person’s real opportunity to rehabilitate and, one day, to regain his freedom.Footnote 98
The CESCR likewise emphasises the importance of providing people with “essential” treatment,Footnote 99 which surely includes essential treatment for managing mental health, and which may in the future at least sometimes include neurorehabilitation. This observation provides legislators with a moral reason for interpreting the relevant human rights provisions as extending to neurorehabilitation in at least some instances.
What, then, about our second situation? The situation where incorporating neurorehabilitation will make preserving mental health substantially easier for a given person. Here we suggest it may also sometimes be possible to successfully appeal to the right to mental health. Making it such that those who are incarcerated must struggle with their mental health issues – as against having access to more efficacious therapeutic assistance – also appears inhumane, and thus may raise an issue under Article 3 ECHR. Recently, the ECtHR judged that a detainee was treated inhumanely, in violation of Article 3 ECHR, when he was denied opioid-substitution therapy to manage his long-term drug addictionFootnote 100 – a therapy often considered to make recovery from addiction more effective and easier.Footnote 101 Similar reasoning could be invoked with respect to relevant neurotechnologies in the future, as and when their use helps to make it easier to realise a reasonable standard of mental health.
Also pertinent to this second situation is the right to participate in and enjoy the benefits of scientific progress and its applications, pursuant to Article 15(1) ICESCR.Footnote 102 The General Comment to this right emphasises a link with the right to health. Among other things, state parties “have a duty to make available and accessible to all persons, without discrimination, especially to the most vulnerable, all the best available applications of scientific progress necessary to enjoy the highest attainable standard of health”.Footnote 103 It thus appears that, even when neurorehabilitation is not strictly necessary for ameliorating poor mental health, there may be reason to claim that denying persons (more effective) neurorehabilitation means denying them access to these “best available applications”.
As a final comment on this second situation, affording persons access to neurorehabilitation that might ease their realisation of mental health, seems especially likely to lend itself to rights claims when persons’ liberty is restricted. Existing jurisprudence and associated literature pay particular attention to the mental health needs of those who have been detained. As Riedel observes, since the year 2000, the CESCR regularly addresses problems of prison conditions, including access to external specialist treatments, special healthcare provision for persons with disabilities and mental health issues among incarcerated persons.Footnote 104 In 2018, the Special Rapporteur on the right to the highest attainable standard of health devoted the entire annual report to the right to health vis-à-vis the deprivation of liberty. There, it was noted that “actual and de facto deprivation of liberty” itself has negative effects on mental health,Footnote 105 and consequently, that extra care needs to be taken to ensure adequate access to mental health services, goods and facilities in closed settings.Footnote 106
In the European context, the ECtHR, too, devotes particular attention to the mental health situation of incarcerated persons, who “are in a vulnerable position and the authorities are under a duty to protect”.Footnote 107 The ECtHR recognises that “detainees with mental disorders are more vulnerable than ordinary detainees, and that certain requirements of prison life pose a greater risk that their health will suffer, exacerbating the risk that they suffer from a feeling of inferiority, and are necessarily a source of stress and anxiety”.Footnote 108 This calls for increased vigilance in assessing whether the detention of mentally ill persons complies with Article 3 ECHR. In that regard, the Grand Chamber finds it insufficient for such detainees to be merely examined and diagnosed. Rather, “it is essential that proper treatment for the problem diagnosed and suitable medical supervision should also be provided”.Footnote 109
The fact that the particularly exigent challenges to mental health within closed settings is recognised may thus make the case for affording incarcerated persons access to neurorehabilitation easier to make.Footnote 110 And perhaps, for some populations of incarcerated persons – that is, those sentenced to preventive detention – the case may be even stronger. Consider how, at the European level, when reviewing the lawfulness of detention under Article 5(1) ECHR, the ECtHR attaches “increasing weight to the need to provide appropriate treatment to persons who have been deprived of their liberty for the purpose of relieving their illness or reducing their dangerousness”.Footnote 111 The ECtHR has noted that an individualised and specialised programme should be adopted, taking account of the specific details of the incarcerated persons’ mental health with a view to preparing them for possible future reintegration into society.Footnote 112 Preventive detention may become unlawful according to Article 5(1) sub e ECHR, when a person
is detained due to the risk that he or she may reoffend, but at the same time is deprived of the measures – such as appropriate therapy – that are necessary in order to demonstrate that he or she is no longer dangerous.Footnote 113
Article 5 ECHR thus could provide an additional route by which mental health-improving neurorehabilitation could be demanded by some subpopulations of incarcerated persons, alongside Article 3 ECHR.
Having said all this, the prospects for an applicant to successfully invoke the right to mental health (or associated health-related rights) to support a claim to neurorehabilitation are slim for the near future. One big obstacle is that many jurisdictions have not accepted the individual complaints procedure of the Optional Protocol to the ICESCR and do not have a legally established right to health within their domestic law. International treaties on their own have weak enforcement mechanisms. The health provisions of domestic law are also judged to be important and are afforded deference within these very treaties. Recall the EU Charter of Fundamental Rights’ qualification that the right to benefit from medical treatment is a right “under the conditions established by national laws and practices” (Article 35 CFR). Recall too how the ECtHR has sometimes judged that refusal of a specific treatment does not violate the right to health when the treatment in question is banned in the relevant jurisdiction.Footnote 114
And even if the prospects for successful invocation are somewhat stronger in the case of incarcerated persons who experience poor mental health, success will still be difficult. Notwithstanding their emphasis on non-discrimination with respect to health treatment, the ECtHR has also emphasised that this “comparable” treatment does “not mean that every detainee must be guaranteed the same level of medical treatment that is available in the best health establishments outside prison facilities”.Footnote 115 The ECtHR acknowledges and accepts that the resources of medical facilities within the penitentiary system are, in principle, limited compared to those of civil clinics.Footnote 116 Furthermore, the ECtHR stresses that “Article 3 cannot be interpreted as requiring a prisoner’s every wish and preference regarding medical treatment to be accommodated (…) the practical demands of legitimate detention may impose restrictions a prisoner will have to accept.”Footnote 117 Against this background, it seems difficult even for incarcerated persons to successfully invoke Article 3 ECHR to demand the provision of a specific neurotechnology that should contribute to their mental health. This, of course, may change in the further future, as and when neurorehabilitation becomes more affordable and more generally available.
The right to mental health may also contribute to the shaping of general policies within which context other rights, such as the right to self-determination and rehabilitation (supra Chapter 5 resp. infra Chapter 7), might provide a more forceful argument in favour of making certain neurointerventions available to some populations of convicted persons.Footnote 118
6.5 Concluding Remarks
The right to mental health has a solid basis in human rights law and can be supported by different moral justifications. Meanwhile, the right’s scope depends, at least in part, on how we understand “mental health” in this context. Both the ICESCR and the ECHR appear to have a broader understanding of mental health than the mere absence of a recognised mental disorder. How much broader remains unclear. Still, it is plausible that, under Article 12 ICESCR, mental health includes “good emotional and social well-being”. In addition, the case law of the ECtHR indicates a link between mental health, well-being and medical treatment for reducing a person’s dangerousness. Neurotechnology has the potential to contribute to mental health so defined. And the possibilities and potential of neurotechnology vis-à-vis mental health may be particularly important in the case of incarcerated persons, given that the prevailing human rights perspective is that the mental health of those who are incarcerated should receive special attention.
Given this solid basis for a right to mental health, it seems that the right could theoretically be invoked to support the provision by the state of neurorehabilitation in certain circumstances. We distinguished between two kinds of situations. The first is when access to safe, affordable, accepted and generally available neurointerventions are necessary for preserving and/or restoring a reasonable standard of mental health – that is, when alternative measures on their own are, or would be, insufficient. The second is when access to safe, affordable, accepted and generally available neurointerventions would make preserving a reasonable standard of mental health substantially easier than an approach that eschews neurorehabilitation.
Nevertheless, successful appeal to the right to mental health (together with the right to science) in order to be provided with a specific neurointervention seems practically unlikely in the near future for various reasons – in particular because of the leeway typically allowed for by socio-economic rights. Meanwhile, the right to mental health (and associated health-related rights) could contribute to establishing general policies that would support making certain neurointerventions available at a population level as well as to some subpopulations of convicted persons.
Open access