Transcript Human Rights and Mental Health: Negative and Positive

Human Rights and Mental
Health: Negative and Positive
Obligations of States
Phil Fennell
Cardiff Law School
Human Rights and Mental Health
•
•
•
•
Three relationships:
1. Mental health policy affects human rights
2. Human rights violations affect mental health
3. Positive promotion of mental health and
human rights are mutually reinforcing
• Larry Gostin and Lance Gable [2004] Maryland
Law Review 20-121 at 27.
General Human Rights Instruments
• UN Universal Declaration of Human Rights 1948
• Council of Europe, European Convention on
Human Rights
• UN International Covenant for Civil and Political
Rights 1976,
• UN Convention on the Rights of the Child 1991
• Charter of Fundamental Rights of the European
Union 2000.
International Bioethics
Conventions
• Convention for the Protection of Human Rights
and Dignity of the Human Being with regard to
the Application of Biology and Medicine:
Convention on Human Rights and Biomedicine
Oviedo Convention 1997
• Universal Declaration on Bioethics and Human
Rights adopted by the United Nations
Educational Social and Cultural Organization
(UNESCO) in 2005.
Bioethics Principles
•
•
•
•
Individual Human Dignity
Autonomy
Beneficence/Non/Maleficence
Justice
International Human Rights
Instruments Disability Rights
• United Nations Convention On The Rights Of
Persons With Disabilities 2007
• Persons with disabilities include those who have
long-term physical, mental, intellectual or
sensory impairments which in interaction with
various barriers may hinder their full and
effective participation in society on an equal
basis with others.
International Human Rights
Instruments Mental Illness
• United Nations Principles for the
Protection of Persons with Mental Illness
1991
• Recommendation Rec(2004)10 of the
Committee of Ministers to member
states concerning the protection of the
human rights and dignity of persons with
mental disorder.
International Human Rights
Instruments Learning Disability
• UN Declaration on the Rights of Mentally
Retarded Persons 1971, which states that
a ‘mentally retarded person has, to the
maximum degree of feasibility, the same
rights as other human beings, as well as a
right to proper medical care and physical
therapy and to such education, training,
rehabilitation and guidance as will enable
him to develop his ability and maximum
potential.
European Committee for the
Prevention of Torture
• The Council of Europe has established that
treatment without consent should be based on
law and ‘only relate to strictly defined
exceptional
circumstances.’
The
CPT
Standards,
Chapter
Vl,
para.41,
http://www.cpt.coe.int/en/docsstandards.htm
.
• Treatment without consent must therefore be
based on clear grounds related to the health or
safety of the patient or to the protection of
others.
International Human Rights
Instruments
• World
Health
Organization,
WHO
Resource Book on Mental Health, Human
Rights and Legislation: Stop Exclusion
Dare to Care (2005)
Article 5 of the European
Convention on Human Rights
• No-one shall be deprived of his liberty unless
the deprivation is carried out in accordance
with a procedure prescribed by law, and the
deprivation is necessary in a democratic society
on one of a number of grounds.
• Article 5(1)(e) specifies as one of the grounds
unsoundness of mind
Article 5(1)(e)
• States that deprivation of liberty will be lawful
if necessary for the prevention of the spreading
of infectious diseases, if the person is of
unsound mind, an alcoholic, drug addict or
vagrant provided it is carried carried out in
accordance with procedures prescribed by law.
• No need for conviction of criminal offence or
other wrongdoing therefore the full Article 6
criminal trial safeguards do not apply
Deprivation of Liberty
• HL v United Kingdom 5 October 2004 para
89. Complete and effective control over
residence,
assessment,
treatment,
movement.
• The concrete situation was that HL was
under continuous supervision and control
and was not free to leave.
Negative and Positive
Obligations
• The state is required to ensure that it does not
deprive people of their liberty unlawfully or
arbitrarily (Negative Obligation – Winterwerp v
the Netherlands (1979))
• The state is required to ensure that private
parties within its jurisdiction do not deprive
people of their liberty unlawfully or arbitrarily
(Positive Obligation – Storck v Germany (2005)).
The European Court of Human
Rights
• In Herczegfalvy v Austria (1992) – The
situation
of
vulnerability
and
powerlessness of persons detained in
psychiatric institutions requires special
vigilance on the part of the authorities.
The Approach of the European
Court of Human Rights
• The Court has built a framework of rights
around Article 5(1)(e) for mentally
disordered people
The Winterwerp criteria
• The wide power to detain on grounds of
unsoundness of mind has been subject to
limits specified in the case of Winterwerp
v the Netherlands (1979).
The Winterwerp criteria
1. There must be objective medical
evidence of a true mental disorder
presented to a competent authority
2. The mental disorder must be of a nature
or degree warranting confinement
3. There must be periodic review of the
continued need for detention
Proportionality
• To these must be added a fourth
principle, that detention must be a
proportionate
response
to
the
circumstances. (See Litwa v Poland) This
is the so-called ‘least restrictive
alternative.’
It is reflected in the
provision of the 1983 Act requiring the
ASW making the application for detention
to state that the treatment which the
patient needs cannot be provided without
detention.
Rights to Information and Review
• Once a person has been deprived of their liberty, they
must be notified of the fact of and reasons for their
detention and of their rights to challenge it (Article
5(2)).
• Most important, they have the right under Article 5(4)
to seek speedy review of the lawfulness of their
detention before a court or tribunal which must have
the power of discharge. X v United Kingdom 1981
Article 5(4) review must extend to
proportionality
• Stojanovski v Macedonia 22 October 2009
• Domestic court more influenced by fears of villagers than
the medical opinion of the detaining hospital that S ready
for discharge
• 36. In the circumstances, the Court is not persuaded
that the domestic courts established that the applicant's
mental disorder was of a kind or degree warranting
compulsory confinement, or that the validity of the
confinement could be derived from the persistence of
such a disorder. The applicant's continued confinement
was therefore manifestly disproportionate to his state of
mind at that time.
Summary Article 5
• The negative obligation requires the state and its
agents to ensure that it does not deprive people of
their liberty unlawfully or arbitrarily (Winterwerp v the
Netherlands (1979))
• The positive obligation requires states to ensure that
private parties within its jurisdiction do not deprive
people of their liberty unlawfully or arbitrarily (Storck
v Germany (2005)).
• The positive obligation under Article 5(1) and 5(4)
requires states to ensure that where a patient could be
discharged if suitable community support were made
available, there is effective review in situations where
provision is delayed Stanley Johnson v United Kingdom
(1997) 27 EHRR 296.
Article 2
• Duty to pass on risk sensitive information
to any person or hospital taking over the
care of a mentally disordered person
(Edwards v United Kingdom).
• Duty of care owed to other in-patients.
• Duty to investigate deaths of detained
patients through use of force
Article 2 Savage v South Essex
[2008] UKHL 74
•
Health authorities are under an over-arching obligation to protect the lives of patients
in their hospitals. In order to fulfil that obligation, and depending on the
circumstances, they may require to fulfil a number of complementary obligations.
•
1 Duty to employ competent staff trained to a high professional standard, and to
ensure that the hospitals adopt systems of work which will protect the lives of
patients. Failure to perform these general obligations may result in a violation of
article 2. If, for example, a health authority fails to ensure that a hospital puts in place
a proper system for supervising mentally ill patients and, as a result, a patient is able
to commit suicide, the health authority will have violated the patient's right to life
under article 2.
2. An "operational" obligation on health authorities and their hospital staff, distinct
from, and additional to, the authorities' more general obligations. The operational
obligation arises only if members of staff know or ought to know that a particular
patient presents a "real and immediate" risk of suicide. In these circumstances article
2 requires them to do all that can reasonably be expected to prevent the patient from
committing suicide. If they fail to do this, not only will they and the health authorities
be liable in negligence, but there will also be a violation of the operational obligation
under article 2 to protect the patient's life.
•
Article 3
• Prevention of torture or inhuman or degrading
treatment
• Treatment must reach minimum level of severity
occasioning physical injury or recognised psychiatric
injury.
• Medical treatment must be clinically necessary
according to established principles of medicine in order
not to be inhuman or degrading treatment Herczegfalvy
v Austria
• In respect of a person deprived of his liberty, recourse
to physical force which has not been made strictly
necessary by his own conduct diminishes human dignity
and is in principle an infringement of the right set forth
in Article 3.
Article 3
• Treatment of a mentally ill person may
be incompatible with the standards
imposed by Article 3 in the protection of
fundamental human dignity, even though
that person may not be able, or capable
of, pointing to any specific ill-effects.
(Keenan v United Kingdom)
R(N) v M and others [2003] 1
WLR 562
• Before court could give permission for
treatment without consent had to be
satisfied that the proposed treatment
was both in the patient’s best interests
and medically necessary for the purposes
of Art 3
• Had the treatment been convincingly
shown to be medically necessary?
Article 3 and Medical Necessity
• In Nevmerzhitsky v Ukraine (2003) and
Ciorap v Moldova (2007) Article 3
prohibition on torture breached by
forcible feeding which was not a medical
necessity.
Article 8
• Article 8 held to protect the right of
personal integrity as part of the right of
respect for private life in X v. Austria
(1979) 18 D.R. 154 (E.Comm.H.R.) – blood
test, Peters v. Netherlands (1994) 77-A
D.R. 75 (E.Comm.H.R.) – urine test, and X
v. Federal Republic of Germany (1984) 7
E.H.R.R. 152 (E.Comm.H.R.) – force
feeding of prisoner.
Key Cases
• X. and Y. v. the Netherlands, 26 March 1985,
Series A no. 91, p. 11, § 22;
• Herczegfalvy v. Austria, 24 September 1992,
Series A no. 244, § 86
• Pretty v. the United Kingdom, no. 2346/02,
§§ 61 and 63, ECHR 2002-III,
• Y.F. v. Turkey, no. 24209/94, 22 July 2003,
§ 33
• Glass v United Kingdom 9 March 2004
• Storck v Germany16 July 2005
Article 8
• Clear case law from the court establishing that
the right of personal integrity part of the right
of respect for private life in Pretty v United
Kingdom 2002, and Glass v United Kingdom
2004.
• Glass Hospital a public institution and the acts
and omissions of the medical staff capable of
engaging the responsibility of the government
under the Convention (para 71)
Glass v UK and the Bioethics
Convention
• Court referred to the Bioethics Convention
• Article 5 General Rule – An intervention in the
health field may only be carried out after the
person concerned has given free and informed
consent
• The person concerned shall be given
appropriate information as to the purpose and
nature of the intervention as well as on its
consequences and risks
Bioethics Convention
• Article 7 Subject to protective conditions
prescribed by law, including supervisory,
control and appeal procedures, a person
who has mental disorder of a serious
nature may be subjected, without his or
her consent, to an intervention aimed at
treating his or her disorder only where,
without such treatment, serious harm is
likely to result to his or her health.
Storck v Germany
• 139 She had refused to take medication, but it
had
§ been administered to her by force. She had
been crammed with psychotropics and
neuroleptics, and attached to beds, chairs and
radiators. Had been treated as a mentally
insane person for many years and the treatment
had permanently ruined her health, and indeed
her life. Both detention and infringement of her
physical integrity imputable to the State.
Alleged violation of positive obligation to
protect against interferences with her right to
respect for private life.
Storck v Germany
• 143. In so far as the applicant argued that she
§ been medically treated against her will
had
while detained, the Court reiterates that even
a minor interference with the physical integrity
of an individual must be regarded as an
interference with the right to respect for
private life under Article 8 if it is carried out
against the individual’s will (see Herczegfalvy
v. Austria, judgment of 24 September 1992,
Series A no. 244, p. 26, § 86).
Storck v Germany
• 144 Given medical treatment against her will.
It§further notes that the findings of at least one
expert (see paragraph 23 above) indicated that
the medicines the applicant had received in the
clinic had been contraindicated and had caused
serious damage to her health. However, the
Court does not need to determine whether the
applicant’s treatment was lege artis, as,
irrespective of this, it was carried out against
her will and therefore already constituted an
interference with her right to respect for her
private life.
Storck v Germany
• 150.
The Court considers that on
§
account
of its obligation to secure to its
citizens their right to physical and moral
integrity, the State remained under a
duty to exercise supervision and control
over private psychiatric institutions.
Determinations of Incapacity:
Article 6
•
•
•
•
•
Salontaji-Drobnjak v Serbia Judgement of 13 October 2009
134. As regards the present case and even assuming that the
restriction on the applicant's right of access to a court was fully in
accordance with the relevant domestic law and in pursuit of a
legitimate aim, it is this Court's opinion that it was nevertheless
disproportionate.
Firstly, although the applicant and his guardian have lodged
numerous requests to this effect, four years later a court of law has
yet to consider on the merits the full restoration of the applicant's
legal capacity (see paragraphs 62-83 above).
Secondly, during this time and quite apart from a seemingly rather
cursory review of the applicant's condition by the SCC on two
separate occasions (see paragraphs 74 and 78 above), there has been
no comprehensive psychiatric examination of the applicant
undertaken in this context.
Lastly, the applicable domestic legislation does not seem to provide
for a periodical judicial re-assessment of the applicant's condition
Determinations of Incapacity:
Article 8
•
•
•
•
•
Salontaji-Drobnjak v Serbia Judgement of 13 October 2009
144. Restriction of the applicant's legal capacity undoubtedly amounts to an
interference with his “private life”. Even assuming that this interference has
been “in accordance with the law” and that the domestic authorities have
pursued a “legitimate aim”, the means employed were not proportionate to the
aims sought to be realised.
In particular, whilst the limitation of the applicant's legal capacity (involving his
inability to independently take part in legal actions, file for a disability pension,
decide about his own medical treatment, or even get a loan) has been very
serious, the procedure on the basis of which the domestic courts had so
decided had itself been fundamentally flawed.
Moreover, some four years later and despite repeated requests to this effect,
the applicant's legal capacity has yet to be re-assessed on the merits by a court
of law.
The Court acknowledges that a legal system must be allowed to protect itself
from vexatious litigants, but considers that it is up to the domestic authorities
to set up an effective judicial mechanism of dealing with such litigants' claims,
without necessarily having to resort to additional measures affecting their legal
capacity.
Article 8 and determinations of
incapacity
• Shtukaturov v Russia 27 March 2008
• Deprivation of legal capacity and appointment
of guardian amounted to an interference with
the private life of the applicant - deprived of
capacity to act independently in almost all
areas of life: he was no longer able to sell or
buy any property on his own, to work, to travel,
to choose his place of residence, to join
associations, to marry, etc. Even his liberty
could henceforth have been limited without his
consent and without any judicial supervision
Article 8 and determinations of
incapacity
• Shtukaturov v Russia 27 March 2008
• In sum, having examined the decision-making
process and the reasoning behind the domestic
decisions, the Court concludes that the
interference with the applicant’s private life
was disproportionate to the legitimate aim
pursued. There was, therefore, a breach of
Article 8 of the Convention on account of the
applicant’s full incapacitation.
Summary of Article 8 rights
• Obligation of state under Article 8 to desist
from interferences with physical and
psychological integrity
• Herczegfalvy v Austria (1992), Y.F. v Turkey
(2003),
• Obligation of state to protect against
interferences with physical and psychological
integrity
• X & Y v Netherlands (1985), Storck v Germany
(2005)
New Positive Obligations?
• The right to an assessment
• The right to care in the least restrictive
setting
• Mental Health and Disability Rights
Independent Living and Social
Inclusion
UN Convention on Rights of Persons with Disabilities
Article 19 Living independently and being included in the community
States Parties to the present Convention recognize the equal right of all
persons with disabilities to live in the community, with choices equal to
others, and shall take effective and appropriate measures to facilitate full
enjoyment by persons with disabilities of this right and their full inclusion
and participation in the community, including by ensuring that:
(a) Persons with disabilities have the opportunity to choose their place of
residence and where and with whom they live on an equal basis with
others and are not obliged to live in a particular living arrangement;
(b) Persons with disabilities have access to a range of in-home, residential
and other community support services, including personal assistance
necessary to support living and inclusion in the community, and to prevent
isolation or segregation from the community;
(c) Community services and facilities for the general population are available
on an equal basis to persons with disabilities and are responsive to their
needs.
Human Rights and Mental
Health
• Need to be aware of positive and negative
rights.
• Need to be aware of the impact of the
Bioethics Convention and the Council of Europe
Mental Illness Recommendation
• Need to ensure that international and domestic
Disability Discrimination Legislation is fully
applied to people with mental health problems
as well as those with physical disabilities – the
Social inclusion agenda.