Human Rights Blog
Human Rights & Mental Health
This blog concerns human rights, written from the perspectives of people associated with the mental health care system, including consumers and people with lived experience. It is edited by CEMH contributor, consumer and lived experience representative, Tom Todd.
We invite any potential contributors with perspectives on these topics that are relevant to present practice, to make a submission to us via email. Current word count guidance is approximately 500-800 words.
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Human rights treaties and mental health law by Hunter Watson
20 May 2021
Mental health human rights campaigner, retired maths lecturer, and former carer, Aberdeen, Scotland.
The United Nations (the UN) was founded in October 1945, the month after Japan’s acceptance of the Allies’ peace terms and hence the end of World War 2. The discovery of the full extent of the atrocities committed by Nazi Germany during that war led to the formulation of the Universal Declaration of Human Rights and its adoption by the UN on 10 December 1948.
The provisions of the Universal Declaration of Human Rights are not legally binding but have been highly influential in the construction of human rights treaties including the 1950 European Convention on Human Rights and the 2006 Convention on the Rights of Persons with Disabilities. Regrettably, it appears that states which have ratified those and other human rights treaties have failed to ensure that their provisions apply to persons with a mental disorder.
The European Convention on Human Rights
Among the Articles in the European Convention on Human Rights are the following:
(2) “Everyone’s life shall be protected by law. …”
(3) “No one shall be subjected to torture or to inhuman or degrading treatment or punishment”.
(5) “Everyone has the right to liberty and security of person. …”
(6) “In the determination of his civil rights … , everyone is entitled to a fair and public hearing within a reasonable time by an independent and impartial tribunal …”
Scottish mental health law is not compatible with those Articles. For example, in contravention of Articles 5 and 6 of the European Convention on Human Rights, it permits mental health patients to be deprived of their liberty and also their right to refuse treatment before they have had a fair hearing. Further, in contravention of Articles 2 and 3 of the European Convention on Human Rights, Scottish mental health law permits patients to be given treatment which poses a risk to their lives or is inhuman or degrading.
The European Court of Human Rights
The European Convention on Human Rights was the first of the treaties produced by the Council of Europe, a body created in May 1949 to uphold human rights, democracy and the rule of law in Europe. The provisions of the European Convention on Human Rights were intended to be legally binding and it was for this reason that the Council of Europe in January 1959 established the European Court of Human Rights. Individuals could raise an action in the Court if they had exhausted all domestic remedies.
The rulings of the Court constitute European Convention on Human Rights case law and the Court periodically produces guides to those rulings. On 30 April 2021 it produced a guide to Article 2, in which it is stated in section I.A. paragraph 1. that:
“The Court’s approach to the interpretation of Article 2 must be guided by the fact that the object and purpose of the Convention as an instrument for the protection of individual human beings requires that its provisions must be interpreted and applied so as to make its safeguards practical and effective”.
As noted in section 2 above, Scotland fails to interpret the provisions of the European Convention on Human Rights in this way as far as they apply to persons with a mental disorder. Scotland is not alone in this respect.
The Convention on the Rights of Persons with Disabilities
Unlike the European Convention on Human Rights, the Convention on the Rights of Persons with Disabilities is an international human rights treaty. Hence, any state can ratify it and so indicate its consent to be bound by its provisions and also its willingness to enact the necessary legislation to give domestic effect to those provisions.
Some of the provisions of the Convention on the Rights of Persons with Disabilities correspond to those in the European Convention on Human Rights. However, the principal purpose of this UN treaty is to safeguard the rights of persons with disabilities, including persons with a mental disorder. It is for this reason that the Convention on the Rights of Persons with Disabilities contains provisions such as Article 4.1.b, which requires States Parties “To take all appropriate measures, including legislation, to modify or abolish existing laws, regulations, customs and practices that constitute discrimination against persons with disabilities”. Presumably it was the unacceptable way in which persons with a mental disorder have been treated from time immemorial that led to the inclusion of this Article.
Article 12.4 of the Convention on the Rights of Persons with Disabilities is also noteworthy: “States Parties shall ensure that all measures that relate to the exercise of legal capacity provide for appropriate and effective safeguards to prevent abuse in accordance with international human rights law”.
It is possible that there is no state which has enacted mental health legislation with effective safeguards.
Successive Scottish Governments have failed to comply with human rights treaties which have been ratified by the UK. In particular, notwithstanding Article 2 of the European Convention on Human Rights, they have failed to introduce effective safeguards to ensure that elderly care home residents with dementia are not subjected to chemical restraint, which is liable to shorten their lives. Also notwithstanding a guide produced by the European Court of Human Rights and Article 12.4 of the Convention on the Rights of Persons with Disabilities, they have failed to introduce effective safeguards to ensure that the rights of mental health patients are respected.
However, there is currently taking place, under the chairmanship of John Scott QC, a wide review of Scottish mental health law. There is a possibility, therefore, that Scotland will give a lead as far as enacting legislation which contains effective safeguards to protect the human rights of persons with a mental disorder.
Watson, H.S. (2021). 'Human rights treaties and mental health law'. Human Rights & Mental Health. 20 May 2021. Available at:https://www.adelaide.edu.au/robinson-research-institute/critical-and-ethical-mental-health/human-rights-blog#human-rights-treaties-and-mental-health-law-by-hunter-watson [date accessed].
Enabling Meaningful Participation... by Tom Todd
12 April 2021
Editor, CEMH human rights and mental health blog.
I’m delighted to have been invited to participate, with Critical and Ethical Mental Health (CEMH), in sharing some ideas through this new blog platform.
There are many ways that you can participate in society, and I’ve come to appreciate the importance of having platforms for facilitating meaningful ways to contribute to change and improvement initiatives.
In Scotland, the Scottish Human Rights Commission (SHRC) has been encouraging adoption of the PANEL Principles, for those interested in taking a Human Rights Based Approach to activities, for a number of years now, the acronym standing for Participation, Accountability, Non-discrimination, Empowerment and Legality. They have shown that by adopting these principles, organisations can contribute to enhancing wellbeing in society.
At its most basic, of course, participation in something can be quite passive: you can be active in dentistry by having a filling done, for example. However, with respect to mental health care, a few people and organisations have stood out for me as being enablers of what the SHRC refers to as meaningful participation. And during the last two years, I’ve particularly enjoyed working with them in various capacities. To name just a few: at CAPS Advocacy in Edinburgh, as a volunteer with the ‘Experiences of Psychosis’ group; at Queen Margaret University, as a participant on the short ‘Mad Studies’ MPHI course; with Miranda Fricker at CUNY, who supported me when I was trying to refine ideas about practical applications of philosophical concepts; and with Jon Jureidini, in a number of ways.
All of these opportunities have had one thing in common: the sharing of knowledge and ideas. And it has become apparent to me how powerful a medium writing can be in that regard.
Within the CAPS group we’re able to share ideas through poetry or prose. For the Mad Studies course we had an option to submit ‘photovoice’ pieces each week to facilitate group discussions. At the same course I was encouraged to read about Miranda’s work on Epistemic Injustice, and to read more widely in general to acquire other knowledge. And I took time to learn about some illusions associated with evidence-based medicine. I even participated informally in the continuing professional development of some interested nurses, a couple of pharmacists, and a few others working in the mental health care system in my local area, by passing on copies of Jon and Leemon’s book.
The invitation to write a blog post for CEMH took place after I sent Jon a copy of my submission to the Scottish Mental Health Law Review in May of last year. He took the time to read it and suggested that I could also consider writing a shorter article on aspects of it, possibly for publication on the CEMH site.
I accepted his offer to work with me on it, and after a few drafts, had put something together that we thought could be useful to share with others.
Somehow, the option of publishing on the CEMH website took a back seat, and the article, in slightly different forms, ended up being published as a blog by ‘Mad In The UK’, and as a first person account in the journal ‘Psychosis’, after active and meaningful participation with yet more people who I didn’t know a couple of years ago.
I know from experience now that blogging can offer an effective platform for people to get to know each other, and to stimulate creating things together. I’ve learned a lot from reading blogs by other people, and I’m delighted to have been offered the chance to write a short one here.
I hope that others might also be encouraged to participate by submitting their own contributions.
See also: Tom's recent opinion article on Medical Assistance in Dying and Psychiatric Influence.
Todd, T. (2021). 'Enabling Meaningful Participation...' Human Rights & Mental Health. 12 April 2021. Available at: https://www.adelaide.edu.au/robinson-research-institute/critical-and-ethical-mental-health/human-rights-blog#enabling-meaningful-participation-by-tom-todd [date accessed].