Transcript Slide 1

Human rights and mental health
• The relationship between health and human rights is mutually reinforcing.
• Where human rights are respected, protected and fulfilled people are more
likely to attain the best possible standard of health and health systems are
more likely to be responsive to the rights of patients and staff and so work
better.
Right to health
• “The right to the highest attainable standard of physical and
mental health”
• Not right to be healthy!
•Immediate obligations
•Progressive full realisation
•Freedoms and entitlements
•Right to underlying determinants of health (adequate water,
sanitation, housing, nutrition etc)
•Right to available, accessible, acceptable, and quality health
care, services and information
UN Disability Convention and
mental health
• The Convention spells out what should be done
to break down the barriers which people with
long term physical, mental, intellectual or
sensory impairments may face in realising their
human rights. As such, the Convention is
relevant to people with experience of mental
health problems.
• The Convention makes absolutely clear that
disabled people have the same rights as
everyone else and it sets out what is required to
respect, protect and fulfill those rights in reality
Mental health law in Scotland and
human rights
• Scotland recognized for having international best practice law which
link mental health, legal capacity and adult protection with human
rights
• The Adults With Incapacity Act (Scotland) 2000, The Mental Health
(Care and Treatment) (Scotland) Act 2003 and The Adult Support
and Protection (Scotland) Act 2007 all explicitly reference human
rights principles - participation, least restrictive alternative and nondiscrimination
• CRPD is not part of domestic law but it can help us to understand
and interpret the rights in the Human Rights Act.
• Considerable developments in understanding of ECHR rights in
areas related to mental health since the laws in Scotland were
adopted.
ECHR Article 2 Right to Life
• Before discharge from hospital, any mental
health service should now consider the risk to life
of the person and take proper protection
measures. There is a positive duty to investigate
failure to protect the right to life.
ECHR Article 3 Freedom from Inhuman or
Degrading Treatment
• European Court of Human Rights has held that
restraint for force feeding can be justified on right
to life grounds but the way in which restraint is
carried out can breach Article 3 prohibition of
inhuman or degrading treatment
ECHR Article 8
• UN Disability Convention Article 12 - right to legal
capacity “on an equal basis with all others in all aspects
of life”
• Right to access support needed to exercise capacity and
informed consent. Support must “respect the rights, will
and preferences of the person…”, be “free of conflict of
interest and undue influence.”
• Article 8 ECHR - Right to participate in decisions that
affect you, any interference must be legal, necessary and
proportionate
• Presumption in favour of full capacity
Legal capacity in ECHR case law
• European Court of Human Rights has held that:
• “…the existence of a mental disorder, even a
series one cannot be the sole reason to justify
full incapacitation”. Any interference with legal
capacity – such as a finding of full or partial
incapacity or a guardianship order – is an
interference with the right to private and family
life and must be based on law, pursue a
legitimate aim and be a proportionate means of
achieving that aim”
Capacity law in Scotland
• Adults With Incapacity (Scotland) Act - in line with international
human rights law and the “functional” approach to capacity:
presumption of capacity, the duty to support decision making and a
functional, rather than a status approach
• But remains to be seen how the UN Committee on the Rights of
Persons with Disabilities will regard Scotland’s overall compliance
with Article 12 of the CRPD – e.g. how is the law implemented?
• The rights based implementation of capacity law may be
strengthened in practice with a more explicit linkage to, for
example, the need to ensure legality, necessity and proportionality
in any interference with autonomy in decision making.
Progressive realisation
• UN Disability Convention includes economic, social and cultural
rights - requires progressive realization of the availability,
accessibility, acceptability and quality of mental health services
across the country.
• For example, where disparity in access to services in remote parts
of Scotland – the State has an obligation to gradually improve and
to raise standards
• Evidence of the systematic gaps in protection needed
A human rights based approach?
• Scotland’s National Dementia
Strategy is an example of a
human rights based strategy
which is built around the PANEL
framework of participation,
accountability, nondiscrimination, empowerment
and legality
• drafting of the Charter of Rights
for People with Dementia and
their Carers in Scotland
A Human Rights Based Approach
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Empowerment – supporting people to know and claim their rights –
example of PPR Project and ‘Card Before You Leave’
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Ability – supporting public authorities & others to adopt a human rights
based approach – example of The State Hospital evaluation
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Accountability – increasing accountability for respecting, protecting and
fulfilling human rights – example of integrated impact assessment by NHS
Scotland, Mental Welfare Commission Guidelines , development of
indicators and patient-centred outcomes
Practice and Participation of Rights
‘Card Before you Leave’
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Northern Ireland example – high rates
of suicide and self-harm amongst
young men – campaigning from
bereaved families for better
engagement
‘Card before you leave’ appointment
system for in-patients and Accident +
Emergency patients
Service users themselves can
suggest, define, and monitor tangible
changes to mental health services,
changes that have the potential to
save lives.
Supported by international law:
ICESCR GC 14 and Special Rapporteur on the
Right to Health stress importance of proper
referral systems
www.youtube.com/watch?v
=gOGF_O-9p-k
Putting HRBA into practice – why?
The State Hospital findings
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“I was told when I was coming to Carstairs that I would be leaving my rights at the
front door – and it isn’t like that now”
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Better for staff and patients:
– Increased staff and patient engagement, work-related satisfaction amongst staff
and satisfaction among patients over their care and treatment, Reduction in staff
stress, anxiety and “fear” of human rights
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“Patients are no longer invisible in a blanket policy; you see them as individuals not
as a group”
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“Patients have increasingly recognised their responsibilities as well as their rights”
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More rights respecting culture:
– Every interference with someone’s rights, staff, patient or carer, had to be
justified: legal, necessary, proportionate;
– Decrease in complaints by patients and carers (care & treatment and relating to
human rights)
– Fewer seclusions, restraints
YOUR Convention; YOUR rights
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Outreach role
Sharing lived experiences
EHRC/ SHRC parallel report
Participation through DPOs
International Disability Alliance network
An Action Plan?
Scottish Government Consultation on Mental Health Strategy
Seminar series
Animation
www.scottishhumanrights.com/ourwork/crpd
@Scothumanrights