Select Committee on European Union Fourteenth Report


CHAPTER 5: Human rights issues

Human rights issues in the mental health field

99.  A fundamental concern expressed by many of our witnesses was that, in most EU countries, people with mental health problems (or at least mental health service users—the two groups are not the same) do not enjoy the same rights and opportunities as other people, including in relation to exercising choice about key aspects of their lives.

100.  The WHO Helsinki Declaration explains that Resolutions of the European Union, recommendations of the Council of Europe and WHO resolutions dating back to 1975 recognise the damaging association between mental health problems and social marginalisation. It cites a number of international conventions concerning the protection of human rights and dignity of persons with mental disorder.

101.  Professor Thornicroft provided helpful information on the human rights issues (pp 22-27). He explained that the primary source of international human rights within the United Nations was the Universal Declaration of Human Rights (UDHR), which relates to civil, political economic and social rights. Economic, social and cultural rights, such as the right to the highest attainable standard of physical and mental health, were described in a second binding treaty, the International Covenant on Economic, Social and Cultural Rights (ICESCR).

102.  A United Nations document[37] sets out the basic rights and freedoms of people with mental illness that must be secured if states are to be in full compliance with the ICESCR. These principles apply to all people with mental illness, and to all people admitted to psychiatric facilities, whether or not they are diagnosed as having a mental illness. They provide criteria for the determination of mental illness, protection of confidentiality, standards of care, the rights of people in mental health facilities and the provision of resources.

103.  In addition to these agreements under the auspices of the UN, 46 Member States of the Council of Europe are bound or guided by a series of human rights arrangements, including the 1950 European Convention on Human Rights and Fundamental Freedoms.

104.  The EU has a supportive framework for human rights issues; and Article 6 of the EU Treaty and the Charter of Fundamental Rights affirm rights. The Fundamental Rights Agency, established in February 2007, may also provide assistance and expertise to raise awareness of the Charter. The Green Paper envisages a mental health strategy that fully recognises human rights.

105.  The Open Society Mental Health Initiative hoped that that the Green Paper's suggestion to identify, through the consultation process, best practice for protecting the rights of people with mental health problems would generate a range of activities that could address stigma and discrimination and promote social inclusion (pp 155-159). Mr John Bowis MEP (Q 127) also made the point that the "wholly unnecessary" added burden of stigma experienced by people with mental health problems had to be tackled as a human rights abuse, giving people better legal protections in terms of access to work, to play, and to services.

106.  Ms Camilla Parker (a legal and policy consultant working on the field of mental health disability and human rights) emphasised that people with mental health problems were governed by international human rights legislation that covered the rights to, among other things, liberty, freedom from torture, work, education and good health. But there were particular human rights issues that applied to people with mental health problems because of the risk that they might be denied some of their basic rights (Q 170). Table 1 printed at the end of this chapter, which Ms Parker provided, summarises the relevant human rights instruments.

107.  Ms Parker argued that human rights were integral to the mental health strategy that the European Commission had proposed. The Commission should accordingly recognise that all activities described within its Strategy needed to be planned and implemented within the human rights context. These activities should enhance respect for the individual, promote equality and social inclusion, and help to ensure that people with mental health problems were able to participate in the planning and implementation of mental health policies.

108.  She urged that the European Commission and national governments should look at human rights in four areas, introducing and enforcing legislation to: address barriers to social inclusion (particularly in relation to stigma, discrimination, guardianship, and the rights of people who may lack capacity), provide community-based care, clarify the circumstances in which care and treatment can be compulsorily required, and safeguard the rights for people living in institutions (Q 170). Table 2, printed at the end of this chapter, also provided by Ms Parker, sets out a summary of human rights in these four areas.

109.  A similar argument was made by the Mental Disability Advocacy Center (MDAC), an international non-governmental organisation, based in Hungary, that promotes and protects the rights of people with mental health problems and intellectual disabilities across central and Eastern Europe (pp 134-140). The MDAC view was that it was not possible to achieve the broad European aims of social justice, non-discrimination and socio-economic development without addressing the underlying rights of individuals. Positive and pro-active measures were needed to ensure that people with mental health problems enjoyed equal rights to other European citizens. This led MDAC to urge the Commission to make a commitment to a disability-specific directive. They also drew attention to the fundamental rights situation of people with mental health problems in Bulgaria and Rumania.

Deinstitutionalisation

110.  Human rights violations have been reported across Europe, and are especially visible in the psychiatric institutions, dispensaries and (institutionally organised) social care homes that remain the mainstay of mental health systems in some countries, including many in Central and Eastern Europe. Individuals admitted to such institutions generally still have little chance of returning to the community. There are well-documented accounts of individuals being kept in "caged beds", chemical restraints, solitary confinement, physical and sexual abuse, overcrowding, electro-convulsive therapy without anaesthesia or muscle relaxants in contravention of international guidelines. The Open Society Mental Health Initiative (MHI) suggested that children and adults with mental disabilities, who were isolated in institutions regardless of their age, sex, or type of disability, were often subjected to the most severe forms of cruel, inhuman and degrading treatment and other human rights violations. They recognised that there were pockets of high quality community-based services in Central and Eastern Europe, but "tens of thousands of people with mental disabilities are still living in institutions" (pp 155-159).

111.  Not surprisingly, closing the institutions is part of the Commission's proposed strategy: "The deinstitutionalisation of mental health services and the establishment of services in primary care, community centres and general hospitals, in line with patient and family needs, can support social inclusion. Large mental hospitals or asylums can easily contribute to stigma. Within reforms of psychiatric services, many countries are moving away from the provision of mental health services through large psychiatric institutions (in some new Member States, such institutions still account for a large share of the mental health services infrastructure) towards community-based services. This goes hand in hand with instructing patients and their families as well as the staff in active participation and empowerment strategies".[38]

112.  Reliance on institutional services varies considerably across Europe, with the UK among those countries that have successfully reduced the number of beds in psychiatric hospitals. The asylums may have had their uses in other times, but they embody and reinforce only negative attitudes about people with mental health problems, and sometimes still smack of the kind of social control and abuse inherited from former Soviet systems (pp 118-120). They also eat up a high proportion of total expenditure on mental health in many countries: in Lithuania it has been estimated that around 70 per cent of the mental health budget is used to maintain psychiatric hospitals and institution-like social care homes[39]. A fear sometimes expressed by even very enlightened mental health professionals in central and eastern Europe is that closing a large and expensive hospital might not mean that the resources thereby saved are made available for the development of community-based mental health services: released funds could instead "leak away" to other parts of the health system or economy.

113.  It has gradually been recognised that community-based services are more effective in promoting quality of life and are also not necessarily more expensive. Care in community settings is generally preferred by service users. Most fundamentally, community-based services make it easier to promote and protect basic human rights.

114.  Two of the leading mental health advocacy bodies in the mental health field in central and Eastern Europe, the Mental Disability Advocacy Center (MDAC) and the Open Society Mental Health Initiative (MHI) were critical of what they saw as the ambiguous position of the Commission on deinstitutionalisation.

115.  The MDAC noted that institutions were not defined merely by their size: "an institution is any place in which people do not have, or are not allowed to exercise control over their lives and their day-to-day decisions. Conditions of care are very poor". The MDAC referred to the ample evidence that large institutions were no longer acceptable because they did not meet modern European standards of core fundamental rights, but that there remained a lack of political will to close the institutions and establish community-based services. They advocated more EU-funded research on the experiences (successes, limitations, failings) of Member States that had already established community-based care systems; that the Commission should set a timeframe for institutional closure and monitor progress, and that there should be examination of mental health systems as part of the accession process into the EU.

116.  The MDAC also argued that the Green Paper appeared to support the continued existence of institutions and long-term social care homes, clearly counter to the community-based approach already endorsed by the EU in the Helsinki Declaration of 2005. It was important to distinguish between the large long-stay, social care homes in some Central and Eastern European countries, where provision was of a dreadfully low standard and human rights abuses were all too common, and the social care facilities that accommodated many thousands of people in countries such as the UK where standards were much higher (pp 134-140).

117.  The Open Society Mental Health Initiative (MHI) stressed the need for deinstitutionalisation. They too were concerned that the Green Paper was not unequivocal in its condemnation of institutions. The MHI wanted greater emphasis in the Commission's strategy on the need to ensure that Member States commit to, and implement, a policy of closing all institutions. They therefore also criticised the Green Paper for failing to mention the poor quality social care homes and orphanages that continued to accommodate large numbers of people in some countries. Unless comprehensive community-based services were developed, the social exclusion of people with mental health problems would be perpetuated. The MHI also argued that membership in, or candidacy for membership of, the EU should be based in part on the state of mental health policies and services. The existence of institutions was anathema to the concept of a civil and open society in which the rights of all citizens were respected (pp 134-140).

118.  MHI welcomed the reference to deinstitutionalisation in the Green Paper, but criticised the Commission for failing to make clear that the unjustified segregation of people with mental health problems in long-stay institutions was unacceptable and a major violation of human rights. They also criticised the Commission for failing to recognise that many people were accommodated in smaller but no less institutional settings, such as poor quality social care homes for elderly people and orphanages for children and young people with mental disabilities. A further criticism was levelled at the apparent promotion of the improvement of long-term care facilities, since, they argued, people with mental health problems and disabilities did not need long-term care, with the exception of some forensic patients.

119.  The four aspects on which the Commission proposes to focus its strategy are: mental health promotion; preventative action; improving quality of life through social inclusion and protection of rights; and developing better information, research and knowledge systems. MHI suggested that deinstitutionalisation should be an additional focus area: it was a crucial step towards addressing these other areas. Policy and practice needed to emphasise the development of comprehensive community-based services so as to enable resources to be shifted away from long-stay institutions.

120.  Hospital-based services still have important therapeutic roles to play, but as part of a community-centred approach to meeting needs—the so-called "balanced care approach" (see the section on "Community care" below).

121.  A new challenge in some countries that have made good progress with the closure of the asylums could be the growth of "reinstitutionalisation", where people with mental health problems who, in the past, might have found themselves in the old asylums, could now be accommodated for long periods in prisons, secure forensic units or care homes.[40]

122.  We support the Commission's view set out in the Green Paper that there is a need to move "away from the provision of mental health services through large psychiatric institutions … towards community-based services", but warn against the dangers of inadequately planned and insufficiently resourced community-based alternatives.

123.  We also take the view that there is a need to recognise better that smaller care settings can be highly institutional in the way they treat individuals with mental health problems. Member States and accession countries should move away from institutionally organised services that deny residents their basic human rights and subject them to poor and often appalling conditions of care.

Compulsory treatment

124.  As we have seen, mental health service users do not have the same rights and opportunities as other people, including in relation to exercising choice and assuming control of their lives. Policy makers face the substantial challenge of balancing the need to keep vulnerable people in touch with services (for their own protection and for the protection of others) against the danger of over-controlling their lives. Individuals should have an obligation to turn up for treatment and to take their medication. However, some people with mental health problems lack insight into their condition, some will have previously been subjected to compulsion and may therefore be suspicious of the motives of the people treating them, and some may quite rationally choose not to take medications that have awful side effects.

125.  A survey of compulsory admission arrangements across the (then) 15 EU Member States in 2002 found considerable variation in legal regulations, routine procedural arrangements and numbers.[41] Compulsory admissions as a percentage of all psychiatric admissions to hospital varied between 3.2% in Portugal and 30% in Sweden (with the UK having a rate of 13.5%), while expressed as the rate per 10,000 population, the range extended from 0.6 in Portugal to 21.8 in Finland (with the UK rate being 9.3 per 10,000). National legal traditions, structures and quality standards of general health care provision were seen as the main determining factors in explaining this variation.

126.  The Commission's position[42] is that the compulsory placement of patients in psychiatric institutions and involuntary treatment severely affects their rights. Such placement should only be applied as a last resort, where less restrictive alternatives have failed. It should also be proportionate, appropriate, and for the purposes of treatment rather than detention.

127.  Legislation has an obvious role to play. It can ensure, for example, that compulsory treatment or detention is used only as a last resort, and can build in safeguards such as access to an independent periodic review for people who are involuntarily treated or admitted to inpatient or other services. Legislation should also address the issue of community protection. Ms Camilla Parker's view was that mental health legislation must ensure that the decisions on the circumstances in which people might be subject to voluntary admission and/or compulsory treatment should be made within a human rights context and should respect individuals' rights (Q 170).

128.  Again, we support the view set out in the Green Paper that the compulsory placement of individuals in institutions should be proportionate, appropriate, and for the purposes of treatment rather than mere incarceration. Compulsory treatment should only be applied as a last resort, where other alternatives have failed.

Community care

129.  As has often been said, it is relatively easy to close an institution but much harder to replace it with community-based arrangements that deliver high quality services of the kind that people actually want to use. As we have seen, community care tends to be preferred to hospital-dominated approaches on the grounds of human rights, relative effectiveness and social inclusion, and is strongly preferred by most service users.

130.  Today, a "balanced care" approach is often recommended: front-line services should be based in the community, but hospitals and other "congregate care" settings would play important roles as specialist providers. Under such an approach people would still be admitted to in-patient psychiatric care, but hospital stays should be as brief as possible, and should be offered in integrated facilities rather than in specialised, isolated locations. As the Christian Council on Ageing noted, "No-one likes to be in an institution, including those with dementia or severe mental illness, but some aspects of the institutions were beneficial. A sheltered environment with easy access to recreation and useful activity may be the most satisfactory way of preserving the rights and dignity of some individuals. This does not have to be in an 'institution' but does need to alleviate isolation fear and anxiety. Support should not mean disempowerment" (pp 112-113). Their clear message was that some people would sometimes need a place of "asylum" in the proper sense of the word.

131.  When all of the costs of delivering a comprehensive community care system are taken into account, including the costs that fall to non-health care agencies as well as those that fall to families, community-based mental health care may not be less costly than hospital provision. A worry often expressed is that policy makers will make untested assumptions of lower cost and then under-fund community provision, for example not investing sufficiently in after care support or crisis services. There is also the worry, alluded to earlier, that any resources released by closing an institution would not be "protected" for the mental health sector. Ring-fencing funds for mental health can also have disadvantages, but in countries that have still to make the transition away from care dominated by asylums, adequate and (in the short-term at least) protected community mental health budgets are needed.

132.  Another worry is that staff are not always recruited and trained, nor appropriate community facilities in place, before the process of hospital closure commences. The rapid decanting of people out of long-stay institutions into under-prepared and under-resourced support systems in what are often very hostile communities is a recipe for disaster. Even when services are apparently in place, people with mental health problems may not use them because they do not want to, or because they do not appreciate the benefits of doing so, or because they feel stigmatised, or because health care and other staff in "ordinary" community services discriminate against them.

133.  A well-planned community-based approach to mental health care will involve a range of public and other bodies. Perhaps more than any other health issue, mental health requires a concerted, coordinated, multi-sectoral approach to both policy development and implementation on the ground. Multiple responsibilities mean multiple budgets, which in turn can easily erect barriers in the way of appropriate systems of treatment and support. As the locus of care shifts from hospital to community so too must the balance of funding. Indeed, because of the organisational structure of care systems in many countries, and the diverse funding streams employed, the balance of funding often needs also to shift from a system that is dominated by medical services to one that represents a greater mixture of services and budgets, drawing on social care, education, social housing and other community resources. A major challenge across the EU is to ensure that the right structures or incentives are in place to mobilise resources from a range of service-providing and other bodies in order to meet the multiple needs of people with mental health problems.

134.  The Green Paper recognises these challenges stating that: "… although medical interventions play a central role in tackling challenges, they alone cannot address and change social determinants. Therefore, in line with the WHO strategy, a comprehensive approach is needed, covering the provision of treatment and care for individuals, but also action for the whole population in order to promote mental health, to prevent mental ill health and to address the challenges associated with stigma and human rights. Such an approach should involve many actors, including health and non-health policy sectors and stakeholders whose decisions impact on the mental health of the population. Patient organisations and civil society should play a prominent role in building solutions".[43]

135.  The Open Society Mental Health Initiative (MHI) welcomed the Green Paper's comprehensive approach, but wanted to see this approach reflected more clearly in the suggested areas of action. They particularly drew attention to the need for social welfare reform for the development of community-based services, and to involve service users in decision-making (pp 155-159).

136.  The Northern Ireland Association for Mental Health (pp 148-155) similarly argued for a cross-sectoral approach and partnership working, rather than "silo-dominated" modes of operation. They also urged the Commission to take social capital into account, i.e. the collection of "networks, norms, and social trust that facilitated coordination and cooperation for mutual benefit". The Royal College of Psychiatrists (pp 161-164) agreed that added value would flow most readily from initiatives that were based on, or encouraged, inter-agency and inter-state collaboration. Mind (pp 54-60) wanted the Commission to ensure that its strategy to improve mental well-being was not isolated from wider EU policy relating to risk factors such as poverty, social exclusion, work-related stress, racial injustice, and drug and alcohol misuse.

137.  Arguing that the whole can be greater than the sum of the parts, Mind (pp 54-60) had welcomed earlier EU initiatives on mental health but noted that they had been restricted to specific initiatives in separate policy areas. They would complement each other more effectively if part of a coherent, strategic whole. The example they gave was of initiatives to reduce the stigma of mental illness which have to battle against government policies, or at least government rhetoric, that portrayed people with mental health problems as a threat to public safety. They saw this as happening currently in England and Wales in the debate over reform of the 1983 Mental Health Act.

138.  Ms Rosie Winterton MP, Minister for Health Services, described to us the efforts made within the National Framework for Mental Health to improve community-based mental health care. Some 700 community health teams had now been set up in England to support people with mental ill health in the community, including getting help at an early stage with both early intervention and crisis resolution (Q 224). Dr Matt Muijen took the view that a great deal had been achieved with community care in England. He saw the provision of specialist services at local level as a most impressive achievement equalling anything elsewhere in the world, with the possible exception of Australia. He did, however, mention the negative side of the NHS system of centralised funding which could mean that insufficiently good access was available in England in some cases for treatment of conditions such as depression, which needs a short, sharp intervention by a therapist on a one-to-one basis (Q 197).

139.  Good community care requires coordinated responses from a range of public and other bodies, the challenges of which should never be under-estimated.

140.  We recognise that the consensus among organisations in the UK, representing both service providers and service users, is that front-line services for the treatment of mental health problems should primarily be based in the community, but that hospitals still need to play an important role as specialist providers. Our view is that Member States should pursue a balanced care approach, using specialist hospital services within a system of care and treatment that is primarily community-based, and that promotes integration, inclusion and choice for the individual and appropriate protection for the community.

TABLE 1

Human rights legislation of relevance to mental health issues
InstrumentOverview
Universal Declaration of Human Rights, 1948 Range of civil & political rights and economic, social and cultural rights, such as: right to life and liberty, the right to marry and found a family, the right to work and the right to an adequate standard of living.
UN International Covenant on Civil & Political Rights, 1966 Includes rights such as the right to life; right to liberty; right to marry and found a family; right to take part in the conduct of public affairs; right to vote.
UN International Covenant on Economic, Social & Cultural Rights, 1966 Includes the right to work, right of everyone to achieve the highest attainable standard of physical and mental health.
UN Convention on the Rights of the Child 1989 Includes the right to education, respect for the views of the child and recognises that all disabled children: "should enjoy a full and decent life, in conditions which ensure dignity, promote self-reliance and facilitate the child's active participation in the community." (Article 23)
UN Draft Convention on the Rights of Persons with Disabilities (not adopted yet) "Persons with disabilities" includes "those who have a long-term physical, mental, intellectual or sensory impairments …" General principles include: "Respect for inherent dignity, individual autonomy including the freedom to make one's own choices, and independence of persons."
UN Standard Rules on the Equalization of Opportunities for Persons with Disabilities 1990 Seek to ensure that all disabled people "as members of their societies, may exercise the same rights and obligations as others."
UN Principles for the Protection of Mental Illness 1991 Sets out guidance on areas such as procedures for involuntary admission and standards of care.
European Convention on Human Rights 1950 Includes rights such as the right to liberty, right to private and family life and the right to marry and found a family.
European Social Charter 1961 (Revised Charter 1996) Includes right to work, the right to a fair remuneration, right to vocational training and the right to protection of health.
European Convention on the Prevention of Torture and Inhuman of Degrading Treatment of Punishment, 1987 Establishes the Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT) which, through inspection visits, examines "the treatment of all categories of persons deprived of their liberty by a public authority, including persons with mental health problems". The CPT has published a report in which it draws together its views on the manner in which persons deprived of their liberty ought to be treated (referred to as the CPT Standards).
European Union Charter of Fundamental Freedoms, 2000 Range of civil, political, economic and social rights such as right to life and right to education. The Union recognises and respects the right of persons with disabilities to ensure their independence, social and occupational integration and participation in the life of the community.' (Article 26)
Council of Europe Rec (2004)10 Guidelines to protect the human rights & dignity of persons with mental disorder.

Table supplied by Ms Camilla Parker—Legal and policy consultant

TABLE 2

Four aspects of mental health where human rights legislation is of relevance
Key areasRelevance of Human Rights

(Key Principles: Protection against discrimination, the promotion of equality and social inclusion, promoting personal autonomy and independence (respect, choice and control); least restrictive alternative/proportionality, provision of care on the basis of individual needs, participation in policy development)

Addressing the barriers to social exclusion
  • Requires the introduction of anti-discrimination legislation
  • In some cases States are required to take positive action to address the causes of discrimination and "to reduce structural disadvantages and to give appropriate preferential treatment … in order to achieve the objectives of full participation and equality within society for all [disabled people]."
  • "The Union recognises and respects the right of persons with disabilities to ensure their independence, social and occupational integration and participation in the life of the community." (European Union Charter of Fundamental Freedoms (EU Charter))
Providing community-based care
  • UN Mental Illness Principles: right to be treated and cared for in the community (as far as possible)
  • UN Special Rapporteur on the Right to Health: the right to community integration is derived from the right to health and other human rights; "States should take steps to ensure a full package of community-based mental health care and support conducive to health, dignity and inclusion".
  • Development of positive obligations under the European Convention on Human Rights (ECHR)
  • Recognition of "the equal right of all persons with disabilities to live in the community …" (UN Draft Convention on the Rights of Persons with Disabilities (UN draft CRPD))
Regulating detention and compulsory treatment
  • Protection from arbitrary detention: requirement of minimum conditions to be met for detention to be lawful and for an independent review of the decision to detain.
  • Least restrictive alternative: Detention is only justified where other less severe measures have been considered and found to be insufficient to safeguard the individual or public interest, which might require that the person be detained (Witold Litwa v Poland (ECHR, 2000)).
  • Right to privacy: is a wide-ranging right including issues relating to compulsory treatment.
  • Involuntary placement and involuntary treatment should be a last resort Rec(2004)10
Safeguarding the rights of those receiving in-patient care
  • Adequate living conditions (right to privacy, freedom from torture, inhuman & degrading treatment)
  • Adequate provision of care and treatment (right to health, freedom from torture, inhuman and degrading treatment)
  • Protection from harm (right to life, freedom from torture, inhuman and degrading treatment)
  • Contact with family and friends (right to family life)
  • Need for independent monitoring (Committee for the Prevention of Torture and Inhuman or Degrading Treatment or Punishment (CPT))

Table supplied by Ms Camilla Parker—Legal and policy consultant


37  
Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Care Adopted by UN General Assembly resolution 46/119 of 17 December 1991  Back

38   op. cit. p. 11 Back

39   Richard Saltman and Vaida Bankauskaite (2006) Conceptualizing decentralization in European health systems: a functional perspective, Health Economics, Policy and LawBack

40   Stefan Priebe et al. (2005) Reinstitutionalisation in mental health care: comparison of data on service provision from six European countries, British Medical JournalBack

41   Hans-Joachim Salize et al. (2002) Piloting a minimum set of mental health indicators for Europe: Europe Population. Back

42   op. cit. p. 11 Back

43   op. cit. p. 5 Back


 
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