Dignity, Mental Health and Human Rights

Coercion and the Law

Brendan D. Kelly

• Publisher: Routledge
• Year: 2016
• ISBN:
  9781317150572
• Edition: 1
• Topic: Medicine
• Subtopic: Health Policy

This book explores the human rights consequences of recent and ongoing revisions of mental health legislation in England and Ireland. Presenting a critical discussion of the World Health Organization's 'Checklist on Mental Health Legislation' from its Resource Book on Mental Health, Human Rights and Legislation, the author uses this checklist as a frame-work for analysis to examine the extent to which mental health legislation complies with the WHO human rights standards. The author also examines recent case-law from the European Court of Human Rights, and looks in depth at the implications of the United Nations Convention on the Rights of Persons with Disabilities for mental health law in England and Ireland. Focusing on dignity, human rights and mental health law, the work sets out to determine to what extent, if any, human rights concerns have influenced recent revisions of mental health legislation, and to what extent recent developments in mental health law have assisted in protecting and promoting the human rights of the mentally ill. The author seeks to articulate better, clearer and more connected ways to protect and promote the rights of the mentally ill though both law and policy.

Chapter 1
Mental Disorder and Human Rights

Background

In 1817, the House of Commons of Great Britain and Ireland established a committee to investigate the plight of the mentally ill in Ireland. The committee reported a disturbing situation:

When a strong man or woman gets the complaint [mental disorder], the only way they have to manage is by making a hole in the floor of the cabin, not high enough for the person to stand up in, with a crib over it to prevent his getting up. This hole is about five feet deep, and they give this wretched being his food there, and there he generally dies.¹

The situation in nineteenth-century Ireland was not unique, as the majority of individuals with mental disorder in Ireland, England and many other countries lived lives of vagrancy, destitution, physical and mental illness and early death.²

Two centuries later, in 2010, the Guardian newspaper reported on the death of a man with schizophrenia in central London:

Mayan Coomeraswamy was found dead on 9 January last year, having died from heart disease. Ulcers in his stomach were a strong sign of hypothermia. The 59-year-old, who had schizophrenia, lived in a dirty, damp and freezing flat, with mould growing on the floor and exposed electrical wires hanging off the walls. His boiler had broken, the bathroom ceiling had collapsed, and neighbours began to complain about the smell. His brother, Anthony Coombe, describing the scene as ‘squalor’, said: ‘Even an animal couldn’t have lived in that’.

The disturbing circumstances of Coomeraswamy’s death have exposed serious flaws in the way mental health law is implemented in the case of vulnerable people. …Everyone knew the conditions Coomeraswamy was living in, but he refused to move for cleaning and refurbishment work to be done. Despite four years of pleading from his family, NHS [National Health Service] care staff would not intervene – wrongly thinking they would be violating his human rights.³

Against the background of these reports, separated by almost two centuries but disturbingly similar in other respects, this book examines two key questions. First, to what extent, if any, have human rights concerns influenced recent revisions of mental health legislation in England and Ireland?⁴ Second, to what extent, if any, have recent developments in mental health law in both jurisdictions truly assisted in protecting and promoting the rights of the mentally ill?

The remainder of this introductory chapter outlines the background to this book’s exploration of these two questions. The chapter commences by presenting an overview of the nature and burden of mental disorder in society and goes on to examine key concepts in human rights as applied to mental disorder, with particular reference to the Universal Declaration of Human Rights,⁵ European Convention on Human Rights (Convention for the Protection of Human Rights and Fundamental Freedoms) (ECHR)⁶ and the UN Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care.⁷ The chapter concludes by providing an exploration of key theoretical constructs underpinning much of the rest of the book, including human dignity, especially as it relates to human capabilities, and paternalism.

The Nature and Burden of Mental Disorder

A medical disorder is disease or ailment.⁸ A mental disorder, according to the WHO, is a clinically recognisable group of symptoms or behaviours associated in the majority of cases with interference with personal functions and distress.⁹ In the absence of personal dysfunction, social deviance or conflict on their own are not sufficient to constitute mental disorder, according to the WHO.

Notwithstanding the emergence of this WHO definition of mental disorder towards the end of the twentieth century, the evolution of the concept of ‘mental disorder’ has been, and remains, a highly contested process,¹⁰ as mental disorders are variously conceptualised as spiritual or religious manifestations, legal conundrums, medical diseases, social issues, or all of the above, with the balance between competing conceptualisations varying over time.¹¹ In recent decades, re-definition and expansion of diagnostic categories have proven especially controversial.¹²

Since this book is primarily concerned with mental health law, it maintains a strong focus not on clinical definitions of mental disorder, such as that developed by the WHO, but on legal definitions provided in mental health legislation in England and Ireland. These definitional issues are extremely important, not least because involuntary detention of the mentally ill has been a long-standing feature of their experience in all societies in which such matters are recorded.¹³ As a result, various jurisdictions have developed dedicated mental health legislation to govern this practice.¹⁴

Today, involuntary admission to psychiatric facilities under civil mental health legislation remains relatively common: in the year from 1 April 2010 to 31 March 2011 there were 49,365 episodes of involuntary psychiatric admission in England,¹⁵ and by 2012/13 this had increased to 50,408 detentions in NHS and independent hospitals.¹⁶ In Ireland, there were 1,602 involuntary admissions in 2010¹⁷ and by 2013 this had increased to 2,039; in addition, the rate of involuntary admission in Ireland increased from 41.9 per 100,000 population in 2012 to 44.4 in 2013.¹⁸

In this context of a long-standing history of involuntary admission and treatment, it is clear that legal definitions of mental illness are of considerable significance. Such definitions are examined in some depth later in this book (Chapters 2 and 3). It is important to note at the outset, however, that mental disorder, as defined by the WHO, is relatively common and imposes considerable costs and burdens on individuals, families and societies.

Worldwide, approximately 450 million people suffer from mental disorder at any given time.¹⁹ The 12-month prevalence of mental disorder varies from 6% in Nigeria to 27% in the United States (US).²⁰ The Organisation for Economic Cooperation and Development (OECD) estimates that 5% of the working-age population have a severe mental health condition, and a further 15% are affected by a more common condition.²¹

Mental disorder exerts considerable economic costs. The OECD estimates that direct and indirect costs of mental disorder can exceed 4% of gross domestic product (GDP).²² In England, the annual economic cost of mental disorder is approximately £77 billion, of which 16% is attributable to care provision, 30% to lost productivity, and the remainder to reduced quality and quantity of life.²³ According to the OECD, mental disorder accounts for 40% of the 370,000 new claims for disability benefit each year.²⁴ In Ireland, the annual cost of mental health problems exceeds €3 billion (£2.4 billion), or 2% of gross national product.²⁵ This figure includes over €1 billion (£0.8 billion) for health and social care, and over €2 billion (£1.6 billion) from lost economic output.

The true cost of mental disorder, of course, stems chiefly from the untold suffering experienced by patients and their families, in addition to the measurable economic and societal costs. This cost in terms of human suffering is difficult, if not impossible, to estimate with any degree of accuracy, but is undoubtedly substantial and underlines the need to provide treatments that are acceptable, effective and evidence-based to all persons with mental disorder, and appropriate support to their families and carers.

Human Rights and Mental Health

While ideas underpinning current conceptualisations of human rights have lengthy histories in many political and religious traditions,²⁶ there was renewed focus on human rights during the eighteenth-century Enlightenment, in the writings of Thomas Hobbes (1588–1679), among others, and England’s Habeas Corpus Act 1679,²⁷ which built on the Magna Carta (1215) and Petition of Right (1628) in articulating key ideas about the rights of the individual.²⁸ In 1776, the concept of indivi...

Table of contents

• Cover Page
• Dedication
• Title Page
• Copyright Page
• Contents
• List of Abbreviations
• List of Legislation
• List of Cases
• Acknowledgements
• Introduction
• 1 Mental Disorder and Human Rights
• 2 Mental Health Legislation in England and Ireland: Background to Current Mental Health Legislation
• 3 Human Rights and Mental Health Law: International Human Rights Standards for National Mental Health Legislation
• 4 United Nations Convention on the Rights of Persons with Disabilities
• 5 Changing the Law: The Example of Ireland
• 6 Human Rights and Mental Health Law: An Evolving Relationship
• 7 Conclusions: Mental Disorder and Human Rights
• Appendix: World Health Organization’s ‘Checklist on Mental Health Legislation’: Ireland and England
• Bibliography
• Index