What are human rights?

A right is an entitlement that one may legally or morally claim. The term ‘human rights’ refers specifically to rights that a human being possesses by virtue of the fact that he or she is a human being. Human rights do not need to be earned or granted; they are the birthright of all human beings simply because they are human beings; no other qualification is required (Reference EdmundsonEdmunson 2004). The concepts and values underlying human rights have a long history, but today the term ‘human rights’ is most commonly understood by reference to statements of human rights dating from the 20th century, including, most notably, the Universal Declaration of Human Rights (UDHR) adopted by the United Nations (UN) General Assembly in 1948.

The Universal Declaration of Human Rights

The UDHR comprises 30 articles, preceded by a short preamble which recognises that ‘the inherent dignity and […] the equal and inalienable rights of all members of the human family is the foundation of freedom, justice and peace in the world’ and that ‘it is essential, if man is not to be compelled to have recourse, as a last resort, to rebellion against tyranny and oppression, that human rights should be protected by the rule of law’ (Preamble). Article 1 of the UDHR states that ‘all human beings are born free and equal in dignity and rights’ and article 2 establishes the universal nature of these rights:

This emphasis on universality is both useful and necessary, not least because previous declarations of rights had commonly been interpreted in such a way as to exclude certain groups. The UDHR provides a list of factors that explicitly are not to form the basis of discrimination in relation to rights. Although mental illness is not specifically mentioned in this list, the universal spirit of the UDHR is beyond doubt and its exhortation against discrimination on the basis of ‘other status’ can be reasonably interpreted as including discrimination on the basis of mental illness. In 1991, the UN made this explicit in its Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care, to which I will return later in this article.

Articles 3 to 19 of the UDHR articulate a range of rights fundamentally rooted in the principle of liberty, including ‘the right to life, liberty, and security of person’ (article 3). The explicit articulation of this right, especially in the context of universal rights, is particularly relevant to people with mental illnesses, not least because of their increased risk of involuntary detention. Again, the need to respect the right to liberty, along with the other rights outlined in the UDHR, was strongly re-emphasised in the UN’s 1991 Principles.

Articles 20 to 26 of the UDHR outline rights related to equality and political participation: article 23 provides for the individual’s ‘right to work’; article 25 states that ‘ everyone has the right to a standard of living adequate for the health and well-being of himself and of his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control’; and article 26 provides ‘the right to education’ which ‘shall be free, at least in the elementary and fundamental stages’. Articles 27 and 28 outline social and cultural rights ‘to participate in the cultural life of the community, to enjoy the arts and to share in scientific advancement and its benefits’ within the context of ‘a social and international order in which the rights and freedoms set forth in this Declaration can be fully realized’. Achieving this kind of ‘social and international order’ has proven a complex task but the UDHR, along with various other international documents, has played a key role in establishing international law as a concept with increasing, positive influence on world affairs (Reference RobertsonRobertson 2012).

The European Convention on Human Rights

Despite its many merits and undoubted importance, the UDHR does not have the force of hard law: it is not legally binding, even in ratifying states. By way of contrast, the Convention for the Protection of Human Rights and Fundamental Freedoms (also known as the European Convention on Human Rights or ECHR), adopted by the Council of Europe in 1950, has significantly greater force in law. Like the UDHR, the ECHR aims to protect human rights and fundamental freedoms ‘which are the foundation of justice and peace in the world and are best maintained on the one hand by an effective political democracy and on the other by a common understanding and observance of the Human Rights upon which they depend’ (Preamble).

Also like the UDHR, the EHCR outlines a range of basic individual rights, including rights to life (article 2), liberty, security and a fair trial (articles 5 and 6); respect for private and family life (article 8); freedom of thought, conscience, religion (article 9), expression (article 10), assembly and association (article 11); the right to marry (article 12); and the right to ‘an effective remedy before a national authority notwithstanding that the violation has been committed by persons acting in an official capacity’ (article 13). There are prohibitions on torture (article 3), slavery, forced labour (article 4) and discrimination (article 14).

Unlike the UDHR, the ECHR established a binding legal mechanism for the enforcement of these rights, the European Court of Human Rights (article 19), which was founded in January 1959. In recent decades, the ECHR was given ‘further effect’ in the UK with the introduction of the Human Rights Act 1998, which incorporates most of the ECHR, and statute is now expected to be compliant with the Human Rights Act 1998 and ECHR. In Ireland, the ECHR was given ‘further effect’ with the European Convention on Human Rights Act 2003, albeit that the 2003 Act is ‘subject to the Constitution’ of Ireland (i.e. if a provision of the 2003 Act conflicts with the Constitution of Ireland, it is the Constitution that takes precedence).

Overall, the six decades since the ECHR was adopted have furnished significant evidence that it has, as intended, provided enhanced protection of human rights (Reference SmithSmith 2007; Reference Rainey, Wicks and OveyRainey 2014) and helped emphasise certain important legal principles, such as the positive obligation of public bodies to take reasonable operational measures to prevent violations of the ECHR (Reference Wadham, Mountfield and EdmundsonWadham 2007). Most especially, the ECHR has had significant impact on the field of human rights in psychiatry.

The European Convention on Human Rights

There is now a substantial body of jurisprudence in relation to mental illness and the ECHR, relating chiefly to involuntary detention owing to mental illness, conditions while detained, and mechanisms for reviews and appeal (Reference Perlin, Kanter and TreuthartPerlin 2006; Reference Bartlett, Lewis and ThoroldBartlett 2007). This reflects the fact that the key provisions of the ECHR in relation to psychiatry concern involuntary detention rather than economic and social rights.

In the first instance, the ECHR states that ‘everyone has the right to liberty and security of person. No one shall be deprived of his liberty save in the following cases and in accordance with a procedure prescribed by law’, including ‘the lawful detention of persons for the prevention of the spreading of infectious diseases, of persons of unsound mind, alcoholics or drug addicts or vagrants’ (article 5(1)). In addition:

These provisions have led to a relatively large number of cases in the European Court of Human Rights clarifying specific matters,Footnote a many of which relate to the nature and conditions of detention (Reference CurticeCurtice 2008; Reference Curtice2009). These cases and concerns contributed significantly to shaping the Mental Capacity Act 2005 and the 2007 amendments to the Mental Health Act 1983 in England and Wales (Reference FennellFennell 2007). The Deprivation of Liberty safeguards under the Mental Capacity Act 2005, for example, stemmed directly from the Bournewood case. Other relevant ECHR rights include article 8(1), which specifies that ‘everyone has the right to respect for his private and family life, his home and his correspondence’. The issue of patients’ ‘correspondence’ in special hospitals, for example, has been examined by the European Court of Human Rights in the context of this right (Reference CurticeCurtice 2009).

One of the most interesting elements of the ECHR, however, is the positive obligation that states appear to be under to protect, as opposed to simply not to violate, ECHR rights. In the UK, the Human Rights Act makes it ‘unlawful for a public authority to act in a way which is incompatible with a Convention right’ (section 6(1)). Although there has been controversy about what precisely constitutes a ‘public authority’, it is now reasonably clear that any entity (governmental or private) involved in the delivery of State services is a ‘public authority’ in respect of those services, including mental health services provided by psychiatrists and others.Footnote b There is a similar (although not identical) provision in Ireland, where the European Convention on Human Rights Act 2003 states that, ‘subject to any statutory provision (other than this Act) or rule of law, every organ of the State shall perform its functions in a manner compatible with the State’s obligations under the Convention provisions’ (section 3). These provisions appear to place substantial and arguably unfulfillable positive obligations on public authorities such as mental health services to protect ECHR rights including, for example, protecting the right to life by preventing suicide (Reference Rahman and WolferstanRahman 2013).

More specifically, the case of Savage Footnote c in 2010 involved the suicide of a detained psychiatric patient and it was alleged that the relevant National Health Service (NHS) trust had failed to protect the patient’s ECHR right to life (article 2(1)). The House of Lords concluded that the NHS trust had a duty to reasonably protect psychiatric patients from taking their own lives, under the Human Rights Act 1998. In 2012, the Supreme Court concluded in another caseFootnote d that the NHS trust concerned had breached its duty of care to a voluntary psychiatric in-patient who died by suicide while on leave home from a psychiatric unit. These cases, which are discussed in more detail in a fascinating paper by Reference Rahman and WolferstanRahman & Wolferstan (2013), demonstrate the very substantial extent of the positive obligation to protect the right to life by preventing suicide that appears to stem from the ECHR and Human Rights Act 1998. It is difficult, if not impossible, to see how this obligation can be fulfilled in day-to-day clinical practice.

UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care

The UDHR and ECHR are general declarations of human rights. The most detailed declaration of rights in the specific context of mental illness is provided by the UN in its Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care (UN 1991). These are summarised in Box 1 and emphasise that all people are entitled to receive the best mental healthcare available, be treated with humanity and respect, and receive mental healthcare based on internationally accepted ethical standards. In addition, mental health facilities shall be appropriately structured and resourced, and an impartial review body shall, in consultation with mental health practitioners, review the cases of involuntary patients.

Many of these principles were re-emphasised in 1996 in the World Health Organization’s (WHO’s) Ten Basic Principles of Mental Health Care Law (WHO Division of Mental Health and Prevention of Substance Abuse 1996) (Box 2), which state that ‘decisions should be made in keeping with the body of law in force in the jurisdiction involved and not on another basis nor on an arbitrary basis’.

Against this background, the WHO published the most detailed systematic set of human rights standards for national mental health legislation assembled to date, in its Resource Book on Mental Health, Human Rights and Legislation (WHO 2005). In this, the WHO sets out a ‘checklist for mental health legislation’ detailing specific human rights standards which, according to the WHO, need to be met in each jurisdiction. These standards are clearly based on previous UN and WHO publications and centre on the provision of mental healthcare that is reasonable, equitable and in accordance with international standards. Mental health legislation in each jurisdiction has a key role in meeting these WHO standards: in England and Wales, civil mental health legislation meets 90 (54.2%) of the 166 relevant standards, while legislation in Ireland meets 80 (48.2%) (Reference KellyKelly 2011). Areas of relatively high compliance include definitions of mental disorder, procedures for involuntary admission and treatment, and clarity regarding offences and penalties. Areas of medium compliance relate to competence, capacity and consent; oversight and review (which exclude long-term voluntary patients); and rules governing special treatments, seclusion and restraint. Areas of low compliance relate to promoting rights, voluntary patients (especially non-protesting, incapacitous patients), protection of vulnerable groups and emergency treatment.

The UN Convention on the Rights of Persons with Disabilities

In 2006, the human rights landscape again changed significantly with the adoption of the Convention on the Rights of Persons with Disabilities (CRPD) by the UN General Assembly (Reference Bartlett, Lewis and ThoroldBartlett 2007). The CRPD commits signatory countries ‘to promote, protect and ensure the full and equal enjoyment of all human rights and fundamental freedoms by all persons with disabilities, and to promote respect for their inherent dignity’ (article 1). It specifies that ‘persons with disabilities include those who have long-term physical, mental, intellectual or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others’ (article 1).

The UK signed the CRPD in 2007 and ratified it in 2009; Ireland also signed it in 2007 but has yet to ratify it. Ratification means that a state indicates its consent to be bound by the CRPD and this is monitored by the Committee on the Rights of Persons with Disabilities.

In the context of psychiatry, it seems clear that the CRPD’s definition of ‘persons with disabilities’ does not include all people with mental disorder, not least because many mental disorders (e.g. adjustment disorder) are not ‘long-term’ (Reference KellyKelly 2014a). The CRPD does not, however, present its definition of ‘persons with disabilities’ as a comprehensive one, but states that the term ‘persons with disabilities’ includes people with long-term impairments; others, presumably, may also fit the definition. As a result, it is likely that some people with mental disorder meet the definition at least some of the time (e.g. an individual with an intellectual disability) whereas others do not (e.g. an individual with adjustment disorder). Moreover, the CRPD states that ‘disability is an evolving concept and [that it] results from the interaction between persons with impairments and attitudinal and environmental barriers that hinders their full and effective participation in society on an equal basis with others’ (Preamble); this unlinks the definition of ‘persons with disabilities’ from any specific diagnoses and moves it into a social context.

The concept of dignity

In terms of day-to-day clinical practice, it is clear that observance of the values outlined in the UDHR, ECHR and CRPD requires a dynamic balance between support and autonomy, and that this balance may vary over time, especially (but not exclusively) among persons with mental disorder (Reference Minkowitz, McSherry and WellerMinkowitz 2010). To help operationalise these concepts in clinical practice, it is useful to note that the concept of dignity is central to all rights and there is arguably no human right that is not connected with dignity (Reference FeldmanFeldman 2002; Reference OsiatynskiOsiatynski 2009). This emphasis on dignity is consistent with the emphasis that the preambles of the UDHR and CRPD both place on the ‘inherent dignity’ of all persons, and provides a good principle to guide the promotion of human rights in psychiatric practice (Reference KellyKelly 2014c). Dignity was also a key theme running through the Mid Staffordshire NHS Foundation Trust Public Inquiry (2013) and featured in its final recommendations

But what exactly is dignity? And how can the concept of dignity be used to promote rights in mental health settings, especially when the person in question may lack insight into their situation and temporarily lack the capability to exercise their own rights or promote their own dignity in certain important respects? For example, an individual with schizophrenia who is untreated, homeless and shouting at passers-by on the street is, by most objective standards, in an undignified position, but may not perceive this indignity subjectively, owing to the effects of illness. An individual without schizophrenia in a similar position is more likely to perceive their situation differently, experience subjective indignity and take remedial action. How can approaches based on human rights and dignity assist in this situation?

As a starting point, it is useful to recognise that dignity has both subjective and objective dimensions, and there is a dynamic interplay between the two (Reference Beyleveld and BrownswordBeyleveld 2001; Reference FeldmanFeldman 2002). A pragmatic approach to operationalising these concepts in clinical settings is provided by Reference Seedhouse and GallagherSeedhouse & Gallagher (2002), who propose that a person has dignity when they are in a situation in which their capabilities can be applied. In other words, there are two key elements in establishing dignity: capabilities and circumstances. On this basis, if a mental health worker seeks to support a patient’s dignity, they can usefully improve the patient’s capabilities, the patient’s circumstances or, ideally, both. There are four key domains in which this can occur: day-to-day clinical practice, mental health service management, broader social engagement and international activism.

Human rights in clinical practice

The key way in which psychiatrists can promote human rights in clinical settings is by providing high-quality, evidence-based mental healthcare that reduces patients’ symptoms, increases capabilities, enhances dignity and thus promotes rights. There is strong evidence that medications commonly used in psychiatry are as effective as those used in general medicine (Reference Leucht, Hierl and KisslingLeucht 2012) and there are growing, convincing evidence bases for various psychological therapies (Reference Gabbard, Beck and HolmesGabbard 2007). Using these therapies wisely, judiciously and as indicated makes a strong contribution to enhancing individual agency and promoting rights.

That is not to say that routine clinical practice is necessarily sufficient in itself to promote rights, but rather that providing care that is evidence-based and effective is probably the most important contribution psychiatrists routinely make to increasing dignity and enjoyment of rights, and it is a vital contribution. Familiarity with national mental health legislation is a key element of this, and there are excellent guides available for the Mental Capacity Act 2005 (Reference Brindle, Branton and StansfieldBrindle 2013) and Mental Health Act 1983 (Reference ZigmondZigmond 2014), for example, to assist with this work. Multidisciplinary team-work is also critical, recognising that recovery depends on diverse inputs that address social needs as well as psychological and medical ones (Reference Gabbard and KayGabbard 2001). All of these measures in and of themselves help protect patients’ rights in important and enduring ways.

Human rights and service management

Psychiatrists are commonly involved in shaping specific aspects of the management of mental health services and these are key determinants of the circumstances in which patients experience and construct their recoveries. These circumstances also play an important role in the promotion or undermining of dignity, and Reference Shotton and SeedhouseShotton & Seedhouse (1998) directly link loss of dignity to the extent to which circumstances prevent exercise of capabilities. In this context they articulate various levels of loss of dignity, including trivial loss (when dignity is easily restored), serious loss (when substantial effort is required to restore dignity) and devastating loss (when it is impossible to regain dignity without help). An awareness of these possibilities can usefully inform involvement in service planning and delivery.

More specifically, creating appropriate circumstances to support dignity involves developing an awareness of the importance of respect, weighing the balance between independence and dependence, and promoting the individual’s own priorities and interests, in the context of staff practices, clinical environments, healthcare resources and various other aspects of organising care (Reference Gallagher and SeedhouseGallagher 2002). For psychiatrists, it is important that involvement in service management promotes improved circumstances for patients by developing mental health facilities of an adequate standard; implementing staffing practices that recognise patient concerns as well as staff requirements; and ensuring patient involvement in service development.

Human rights and social engagement

Mental illness and recovery are experienced in specific social contexts and these circumstances invariably play important roles in recovery and reintegration following episodes of mental disorder. Poor people are likely to develop mental disorders at earlier ages and have longer durations of untreated illness, and anyone with a mental disorder is at greater risk of underemployment and homelessness, and more likely to be arrested in similar circumstances than someone without such a disorder (Reference KellyKelly 2005, Reference Kelly2006). These adverse societal factors, combined with the stigma of mental illness, constitute a form of ‘structural violence’ that amplifies the effects of mental disorders in the lives of sufferers and their families, and effectively excludes many from full participation in civic and social life.

Against this background, there is a clear role for psychiatry in social advocacy for the mentally ill. The CRPD is of great assistance in this regard, owing to its welcome articulation of the rights of persons with disabilities in the broader social context, rather than just in the context of healthcare. The CRPD is thus a powerful tool with which to advocate for better, more equitable treatment of people with mental disorder not just in healthcare settings, but also in terms of social care, as well as broader acceptance and genuine integration in society. A growing awareness of the importance of public mental health is another welcome recognition of the importance of contextual factors in recovery from mental disorder and maintaining mental wellness (Reference EatonEaton 2012). There are clear, compelling roles for psychiatrists in these areas, especially in relation to social advocacy for our patients.

Human rights and international activism

Global health inequality is easily the greatest single bioethical issue of our times, and this is as true in mental health as it is in other areas of medicine. The WHO (2014) points out that although 14% of the global burden of disease is attributable to mental, neurological and substance use disorders, most of the people affected (up to 75% in many low-income countries) do not have access to the treatment they need. This is a truly global problem, and while the human rights issues that face persons with mental disorder in high-income countries (commonly relating to involuntary admission and treatment) certainly merit attention and remedy, the greatest human rights issue at global level is lack of access to care, rather than protection from it.

In this context, issues of discrimination, exclusion from care, denial of agency and lack of social security are key factors in determining the kinds of lives that persons with mental disorder actually lead (Reference KellyKelly 2005; Reference Callard, Sartorius and Arboleda-FlórezCallard 2012). An international perspective is essential if psychiatrists are to appreciate the nature and extent of these challenges, and seek possible solutions. In the area of mental health law, for example, there are interesting and contrasting developments in various jurisdictions: in Ireland, it was recently proposed that ‘dignity’ should become the overarching principle of mental health legislation (Reference KellyKelly 2014c), whereas in Northern Ireland, the draft Mental Capacity Bill 2014 suggests merging mental health and capacity legislation into a single act, thus increasing compliance with the CRPD but also, intriguingly, retaining ‘best interests’ as the overarching principle, in apparent violation of the CRPD. These diverse approaches merit study.

There are equally interesting developments elsewhere around the world, and Reference Callard, Sartorius and Arboleda-FlórezCallard and colleagues (2012) provide valuable examples of initiatives and practices in countries such as New Zealand, India and Indonesia. An awareness of this global dimension to human rights in mental health can both stimulate global activism at transnational level and enhance advocacy and protection of rights at local or national level. The resources in Box 3 indicate ways to get involved.

An awareness of the global context of human rights in mental health also highlights that, while protecting the right to liberty is a crucial first step, there are many other rights too, most of which are substantially shaped by social, economic and political realities. All of these issues require solutions based not just in the clinic, but in the arenas of political advocacy, economic reform and campaigns for global social justice. Aux barricades !