Memorandum by Professor Peter Bartlett,
Nottinghamshire Healthcare NHS Trust Professor of Mental Health
Law and Professor Tamara Hervey, Professor of European Law, School
of Law, University of Nottingham
WHETHER AN
EU STRATEGY ON
MENTAL HEALTH
WOULD BE
APPROPRIATE
1. As the Commission's Green Paper (COM
(2005) 484) admits, the European Union has limited competence
in matters relating to mental health. Notwithstanding, to date,
the EU has used various different legal bases and various different
type of governance intervention in mental health matters. The
Commission's proposal effectively amounts to a proposal to "join
up" these various disparate activities into a coherent EU
mental health strategy. We note that this proposal fits within
the Commission's increased interest in health matters generally
over the last five years or so, and that this in turn may relate
to the need (in the light of the dramatic rejection of the Treaty
establishing a Constitution for Europe in a number of referenda)
for the EU to find a way to connect its activities with matters
that are important to the population of the EU, among which health
is one of the highest (Eurobarometer 61, 2004).
2. Nevertheless, the EU has only a limited
amount of resources available to it in the health field, including
mental health. This position is unlikely to change significantly.
Even if the Commission were to use the emergence of an EU mental
health strategy to argue for increased resources, and the European
Parliament were to support this, the Council is unlikely to agree
to a major increase in the EU's budgetary settlement. In the light
of this, it is our view that an EU mental health strategy would
be appropriate only if it is based on a careful consideration
of the best use of scarce resources. Therefore an EU mental health
strategy should be highly focussed upon the areas of greatest
need.
3. In our view, the areas of greatest need
for an EU mental health strategy should be determined by reference
to the fundamental values and principles upon which the EU itself
(Article 6 Treaty on European Union) and its Member States are
based. Among these, the most important for these purposes is the
respect for fundamental rights.
4. By fundamental rights in this context,
we mean both the "civil liberties" approach to fundamental
rights as "freedoms from state interference" and the
"positive rights" approach, which sees fundamental rights
as rights that must be promoted within civilised societies. We
do not wish to enter into the debate about the distinction between
"civil and political" and "economic and social"
rights here, noting simply that state of the art thinking on human
rights law and practice finds these types of fundamental rights
interdependent and indivisible. If human rights most urgently
need defending where they are most denied, a rights agenda is
by definition aspirational; but this does not necessarily reduce
it to mere rhetoric.
5. We are aware that the EU does not have
an independent human rights competence, in the sense of a power
to adopt binding EU laws that aim to protect fundamental rights.
In Europe, the main institution holding this responsibility is
the Council of Europe, with in particular the European Convention
on Human Rights and European Social Charter. However, we note
that the European Court of Justice has recognised fundamental
human rights as "general principles of EU law" since
the late 1960s[20]
and that, more recently, the EU has explicitly recognised both
"civil and political" and "economic and social"
rights in its own Charter of Fundamental Rights, which has been
agreed by all the Member States. Moreover, the establishment of
an EU Fundamental Rights Agency will cement the EU's commitment
to human rights in all its governance activities, including the
open method of coordination and "governance by dominium"
(the use of funding to achieve desired regulatory aims).
IF SO,
WHAT ELEMENTS
IT MIGHT
CONTAIN
6. In much of Europe, institutional care
remains common. In Poland alone, for example, there are around
50,000 people with mental health problems and intellectual disabilities
living in around 400 institutions, often for long periods of time
or for life. [21]These
patterns of institutional care are often the inheritance of former
Soviet systems, and do not reflect current human rights norms.
It is not merely a question of long-stay, large-scale institutionalisation,
a human rights issue in itself, but also the conditions of care
in those institutions. The reports of the European Committee for
the Prevention of Torture and Inhuman or Degrading Treatment or
Punishment (CPT) provide numerous examples of conditions falling
well short of current international standards. "Cage beds"
or "net beds"—beds with wire or mesh enclosures
that do not allow the occupant to leave the bed—are still
used in central European countries including the Czech Republic,
Hungary, Slovakia and, at least until recently, Germany and Austria.
Treatment regimes may not meet international standards. "Unmodified"
ECT, for example (that is, ECT without anaesthetics or muscle
relaxants, placing the patient at significantly increased risk
of bone fractures and making the process considerably more unpleasant
for the patient) is still practised in some countries. Staffing
levels and staff training are not always adequate. In part as
a result, violence on wards, either between residents or, less
frequently, exerted on residents by members of staff remains an
issue.
7. The problem is exacerbated by limited
legal rights afforded to persons in these facilities. Many European
guardianship regimes, both inside and outside the former Soviet
Union, remove all rights from the individual, even in areas where
he or she may continue to have capacity. Of particular importance,
the individual loses the right to pursue any action in the domestic
courts, or to retain and instruct legal counsel. There is therefore
no practical way in which he or she can challenge the conditions
of the institution. In theory, such a challenge could be mounted
by the guardian, but often the guardian will be the director of
the instititution in question. There appears to be no legal mechanism
to challenge such conflicts of interest.
8. The problems associated with institutionalisation
will increase as the current accession states join the EU. In
a 2002 visit to Bulgaria, for example, the CPT found that the
per capita allocation for food in one institution was less than
half a Euro per day. Heating in the institution was minimal, with
a temperature of 12 degrees Celsius recorded at mid-day on the
day of the Committee's visit.
9. The way forward for these countries does
not lie primarily in better institutions. Certainly, it is unlikely
that institutional options for people with mental disabilities
should be done away with entirely,[22]
and within those institutions, it is appropriate to ensure reasonable
standards of care. Nonetheless, the direction in care internationally
is away from long-stay institutions and towards community alternatives.
The provision of such alternatives in the newer EU states is not
merely impeded by financial concerns; it is also impeded by a
lack of knowledge and experience of those community alternatives
by professional carers in those jurisdictions. Overall, both the
problems with care conditions in institutional structures and
the lack of community-based alternatives may be seen to stem from
a failure to link these matters to fundamental human rights protection.
10. It follows that the elements of an EU
mental health strategy would need to focus on these greatest challenges
for the EU in terms of respect for and promotion of the fundamental
rights of those with mental ill health and intellectual disability.
This implies the following:
— Focus the use of the EU's structural
funds on the creation of meaningful community-based mental health
care services, as an alternative to the large institution-based
care that is the only option available at present in many parts
of the EU;
— Focus the use of the EU's research
funding (both under the Public Health Programme and under the
health strand of Framework Programme 7) on the determination of
best practice in terms of community-based provisions;
— Use of the EU's "open method
of coordination" or similar governance strategy to mandate
sharing and dissemination of best practice among Member States,
regional and local authorities, health care organisations of various
types and indeed civil society; and
— All of the above EU governance strategies,
and others that might be envisaged in the future (including, for
instance, any "scoreboard" or league table created and
disseminated by the EU in this respect) must take explicit account
of fundamental rights—both as "freedom from" and
as "entitlement to"—not only in terms of the formal
legal position in national law, but also the position in practice.
How it might complement and add value to the strategies
of the Member States and the activities of the World Health Organisation
and other international bodies
11. An EU mental health strategy on the
terms we envisage would imply the movement of resources within
the EU (essentially from Western Europe to eastern and Central
Europe), using the institutional mechanisms of the structural
funds, and to a smaller extent, the EU's research funding. It
would generate a much wider pool of good practice from which Member
States, and the providers of health care within them, could draw
in developing their own mental health care strategies. The approach
suggested here fits squarely with the World Health Organisation's
view that the best approach to mental health care is community-based
treatment. It also fits with the Council of Europe's Action Plan
for Disability.
12. The EU has been instrumental in creating
the conditions and incentives for policy change in central and
eastern European states seeking membership of the EU. Of course,
this is principally concerned with creating the conditions of
a market-based economy. But it is also concerned with the conditions
of democracy, the rule of law and respect for fundamental rights.
The EU mental health strategy proposed here could therefore be
rolled out, via the EU's "neighbourhood policy", to
promote policy change in aspirant states in Eastern Europe, whose
mental health policies are in need of urgent reform.
20 Case 29/69 Stauder v City of Ulm
[1969] ECR 419. Back
21
G Freyhoff, et al, eds, Included in Society, Results and Recommendations
of the European Research Initiative on Community-Based Residential
Alternatives for Disabled People (Brussels: Inclusion Europe,
Autism Europe, Mental Health Europe and the Open Society Mental
Health Initiative, 2005). Back
22
See G Thornicroft and M Tansella, "Components of a modern
mental health service: a pragmatic balance of community and hospital
care", 185 British Journal of Psychiatry (2004) 283. Back
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