Anand Grover UN Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental health Irish Mental Health Coalition Conference Dublin Monday, 18 th May, 2009

“ The right to the highest attainable standard of mental health.” 1) International law 2) Framework of the right to health 3) Mental health in Ireland 4) The way forward

“ The right to the highest attainable standard of mental health.”

1) International law

2) Framework of the right to health

3) Mental health in Ireland

4) The way forward

Mental health: facts Major depression is now the leading cause of disability globally and ranks 4 th in the 10 leading causes of the global burden of disease. If projections are correct, within the next 20 years major depression will rank 2 nd on the list.

Major depression is now the leading cause of disability globally and ranks 4 th in the 10 leading causes of the global burden of disease.

If projections are correct, within the next 20 years major depression will rank 2 nd on the list.

The right to health : international law Both physical and mental health are now well-recognized under a number of domestic constitutions, as well as regional and international laws. Specifically regarding the issue of mental health, the 1991 UN Principles for the Protection of Persons with Mental Illness highlights that: “ All persons have the right to the best available mental health care, which shall be part of the health and social care system.” “ All persons with a mental illness, or who are being treated as such persons, shall be treated with humanity and respect for the inherent dignity of the human person .”

Both physical and mental health are now well-recognized under a number of domestic constitutions, as well as regional and international laws.

Specifically regarding the issue of mental health, the 1991 UN Principles for the Protection of Persons with Mental Illness highlights that:

“ All persons have the right to the best available mental health care,

which shall be part of the health and social care system.”

“ All persons with a mental illness, or who are being treated as such

persons, shall be treated with humanity and respect for the inherent dignity of the human person .”

The right to health under international law The right to health is recognized in: Universal Declaration of Human Rights (Art. 24). International Convention on the Elimination of All Forms of Racial Discrimination (Art. 5(e)(iv) 1965 ( ratified by Ireland in 28 Jan ’01 ). Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). (Art. 11(1)(f), 12, 14(2)(b)) 1979 ( ratified by Ireland in 22 Jan ’86). Convention on the Rights of the Child: Art (24) 1989 ( ratified by Ireland in 28 Oct ’92 ). International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: arts. (28, 43 (e), 45(c).) 1990 ( not signed or ratified by Ireland ). Convention on the Rights of Persons with Disabilities: art. 25 (2006) ( signed, but not ratified by Ireland ). ICESCR Art. 12 ( ratified by Ireland in 08 Mar ’90 ). The Charter of Fundamental Rights of the European Union (2000). European Convention of the Protection of Human Rights and Fundamental Freedoms (1950).

The right to health is recognized in:

Universal Declaration of Human Rights (Art. 24).

International Convention on the Elimination of All Forms of Racial Discrimination (Art. 5(e)(iv) 1965 ( ratified by Ireland in 28 Jan ’01 ).

Convention on the Elimination of All Forms of Discrimination against Women (CEDAW). (Art. 11(1)(f), 12, 14(2)(b)) 1979 ( ratified by Ireland in 22 Jan ’86).

Convention on the Rights of the Child: Art (24) 1989 ( ratified by Ireland in 28 Oct ’92 ).

International Convention on the Protection of the Rights of All Migrant Workers and Members of their Families: arts. (28, 43 (e), 45(c).) 1990 ( not signed or ratified by Ireland ).

Convention on the Rights of Persons with Disabilities: art. 25 (2006) ( signed, but not ratified by Ireland ).

ICESCR Art. 12 ( ratified by Ireland in 08 Mar ’90 ).

The Charter of Fundamental Rights of the European Union (2000).

European Convention of the Protection of Human Rights and Fundamental Freedoms (1950).

International Covenant on Economic, Social and Cultural Rights (ICESCR) ICESCR Art. 12 Article 12.1 provides the definition of the right to health: 1) “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health .” 2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for: “ the provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child; the improvement of all aspects of environmental and industrial hygiene; the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

ICESCR Art. 12

Article 12.1 provides the definition of the right to health:

1) “The States Parties to the present Covenant recognize the right of everyone to the enjoyment of the highest attainable standard of physical and mental health .”

2) The steps to be taken by the States Parties to the present Covenant to achieve the full realization of this right shall include those necessary for:

“ the provision for the reduction of the stillbirth rate and of infant mortality and for the healthy development of the child;

the improvement of all aspects of environmental and industrial hygiene;

the prevention, treatment and control of epidemic, endemic, occupational and other diseases; the creation of conditions which would assure to all medical service and medical attention in the event of sickness.”

Progressive realization: available resources The right to the highest attainable standard of health is to be progressively realized. While the highest attainable standard of mental health does not have to be achieved immediately, at a minimum States parties must show that they are making every possible effort to promote and protect the right to health, especially mental health. They must show that they are using available resources TODAY towards the progressive realization of the right to health.

The right to the highest attainable standard of health is to be progressively realized.

While the highest attainable standard of mental health does not have to be achieved immediately, at a minimum States parties must show that they are making every possible effort to promote and protect the right to health, especially mental health.

They must show that they are using available resources TODAY towards the progressive realization of the right to health.

Non-retrogression Coupled with progressive realization is the principle of non-retrogression There cannot be any steps backwards Impose the obligation to have benchmarks and indicators which allow for monitoring However certain issues, e.g. Non-discrimination and non-consensual treatment are not amenable to progressive realization These issues are immediately applicable

Coupled with progressive realization is the principle of non-retrogression

There cannot be any steps backwards

Impose the obligation to have benchmarks and indicators which allow for monitoring

However certain issues, e.g. Non-discrimination and non-consensual treatment are not amenable to progressive realization

These issues are immediately applicable

The right to health: framework General Comment 14 (2000), establishes a framework for the realization of the right to health. Underlying conditions & determinants of health Safe drinking water and adequate sanitation Healthy nutrition Health related education and information Healthy working and environmental conditions Housing, unemployment, and income support Support for those falling below poverty line. Gender equality Non-discrimination and social inclusion

General Comment 14 (2000), establishes a framework for the realization of the right to health.

Underlying conditions & determinants of health

Safe drinking water and adequate sanitation

Healthy nutrition

Health related education and information

Healthy working and environmental conditions

Housing, unemployment, and income support

Support for those falling below poverty line.

Gender equality

Non-discrimination and social inclusion

The right to health: entitlements Entitlements to : Appropriate health care services Community based services Availability of health care institutions Access to essential medicines Adequate health care providers Provision of health-related education and information

Entitlements to :

Appropriate health care services

Community based services

Availability of health care institutions

Access to essential medicines

Adequate health care providers

Provision of health-related education and information

The right to health: elements Elements of the right to health Mental health services, goods, and facilities must be: Available : Health care facilities and health care providers must be available in adequate numbers Accessible : Physically and geographically; economically (affordable); non-discriminatory; Information to be made available Acceptable : Respectful of culture and medical ethics Good quality : Scientifically and medically appropriate

Elements of the right to health

Mental health services, goods, and facilities must be:

Available : Health care facilities and health care providers must be available in adequate numbers

Accessible : Physically and geographically; economically (affordable); non-discriminatory; Information to be made available

Acceptable : Respectful of culture and medical ethics

Good quality : Scientifically and medically appropriate

The right to health: duties of States Duties of States regarding mental health Respect : States must refrain from interfering directly or indirectly with the right to mental health Protect : States must take measures to prevent third parties from interfering with the right to mental health of its peoples. Fulfill : States required to adopt appropriate legislative, judicial, promotional etc. measures towards the realization of the right to mental health. Fulfill Includes the following : Facilitate : States need to take positive measures that enable and assist individuals to enjoy the right to mental health. Provide : States need to provide a specific right to individuals if they are unable for reasons beyond their control to realize the rights themselves. Promote : States need to undertake actions that create, maintain and restore the health of their people. e. g. through research and provision of information. The duty to fulfill within the context of mental health , implies that states have both an obligation to establish mental health policies and to monitor these policies progress in relation to benchmarks which have been set.

Duties of States regarding mental health

Respect : States must refrain from interfering directly or indirectly with the right to mental health

Protect : States must take measures to prevent third parties from interfering with the right to mental health of its peoples.

Fulfill : States required to adopt appropriate legislative, judicial, promotional etc. measures towards the realization of the right to mental health.

Fulfill Includes the following :

Facilitate : States need to take positive measures that enable and assist individuals to enjoy the right to mental health.

Provide : States need to provide a specific right to individuals if they are unable for reasons beyond their control to realize the rights themselves.

Promote : States need to undertake actions that create, maintain and restore the health of their people. e. g. through research and provision of information.

The duty to fulfill within the context of mental health , implies that states have both an obligation to establish mental health policies and to monitor these policies progress in relation to benchmarks which have been set.

The right to health: non-discrimination and equality Principle of non-discrimination and equality Definition of discrimination: any distinction, exclusion made on basis of various grounds for the effect of impairing the enjoyment or exercise of fundamental freedoms. Human rights treaties were developed with a key to consider rights on a basis of non-discrimination. Non exhaustive grounds include: race, color, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status. States have an obligation to make health services available on a basis of non-discrimination and equality. As people living with mental health difficulties often face stigma in society in general, a community-based model does raise awareness of mental health issues, and further helps integrate people needing services into society.

Principle of non-discrimination and equality

Definition of discrimination: any distinction, exclusion made on basis of various grounds for the effect of impairing the enjoyment or exercise of fundamental freedoms.

Human rights treaties were developed with a key to consider rights on a basis of non-discrimination.

Non exhaustive grounds include: race, color, sex, language, religion, political or other opinion, national or social origin, property, disability, birth or other status.

States have an obligation to make health services available on a basis of non-discrimination and equality.

As people living with mental health difficulties often face stigma in society in general, a community-based model does raise awareness of mental health issues, and further helps integrate people needing services into society.

Right to health : community based model Participation and community based model The service users, the persons living with mental health difficulties, participate in health-related decision making at the national and community level. It has been demonstrated that: community care has a better effect than institutional treatment on the outcome and quality of life of people living with mental health difficulties. Shifting people from mental hospitals to care in the community is also cost-effective and respects human rights. I am glad to note that the Policy Document, Ireland, A Vision for Change states that : Mental health services be provided within the community, with the use of all available resources. Community-based services can lead to early intervention and limit the stigma of taking treatment. Service users are participants in the whole process of service provision and decision making.

Participation and community based model

The service users, the persons living with mental health difficulties, participate in health-related decision making at the national and community level.

It has been demonstrated that:

community care has a better effect than institutional treatment on the outcome and quality of life of people living with mental health difficulties.

Shifting people from mental hospitals to care in the community is also cost-effective and respects human rights.

I am glad to note that the Policy Document, Ireland, A Vision for Change states that :

Mental health services be provided within the community, with the use of all available resources. Community-based services can lead to early intervention and limit the stigma of taking treatment.

Service users are participants in the whole process of service provision and decision making.

Right to Health: Accountability Monitoring and Accountability Integral to successfully realizing the right to health. Duty bearers: States are held to account. Need for independent body with sufficient powers to monitor and account This body must include persons living with mental difficulties

Monitoring and Accountability

Integral to successfully realizing the right to health.

Duty bearers: States are held to account.

Need for independent body with sufficient powers to monitor and account

This body must include persons living with mental difficulties

The right to health: Freedom Freedom : from non-consensual medical treatment (e.g. medical experiments and research or forced sterilization). This, therefore, includes the right to control one’s health and body. Health care providers must ensure the respect of individual autonomy and dignity of people living with mental health difficulties… from torture and other cruel, inhuman or degrading treatment or punishment .

Freedom :

from non-consensual medical treatment (e.g. medical experiments and research or forced sterilization). This, therefore, includes the right to control one’s health and body. Health care providers must ensure the respect of individual autonomy and dignity of people living with mental health difficulties…

from torture and other cruel, inhuman or degrading treatment or punishment .

Mental Health: Ireland Ireland has adopted: the 2001 Mental Health Act the 2005 Disability Act the 2008 Scheme of the Mental Capacity Bill A Vision for Change, 2006

Ireland has adopted:

the 2001 Mental Health Act

the 2005 Disability Act

the 2008 Scheme of the Mental Capacity Bill

A Vision for Change, 2006

Mental Health: Ireland A Vision for Change is an important policy document which has changed the way mental service is viewed in Ireland by recognizing and recommending: Treatment of service users with respect and dignity Development of community based model approach to mental health care Closure of mental hospitals The need to view service users as active participants in their own recovery, rather than as passive recipients of expert care; Incorporation of service users in the decision making, planning processes and development of services from the local to national level Self-advocacy by service users as a matter of right Non-stigmatic and non-discriminatory approach (language, service user and caregivers ) Need to tackle stigma: social exclusion; poverty; lack of employment; housing issues Special needs of minorities; historical and marginalized populations Multi-disciplinary approach Evidence-based based best practice programmes

A Vision for Change is an important policy document which has changed the way mental service is viewed in Ireland by recognizing and recommending:

Treatment of service users with respect and dignity

Development of community based model approach to mental health care

Closure of mental hospitals

The need to view service users as active participants in their own recovery, rather than as passive recipients of expert care;

Incorporation of service users in the decision making, planning processes and development of services from the local to national level

Self-advocacy by service users as a matter of right

Non-stigmatic and non-discriminatory approach (language, service user and caregivers )

Need to tackle stigma: social exclusion; poverty; lack of employment; housing issues

Special needs of minorities; historical and marginalized populations

Multi-disciplinary approach

Evidence-based based best practice programmes

Mental health: Ireland Concerns and A Vision for Change Steps still need to be taken to ensure the policy’s implementation. & Budgetary concerns Budgetary allocations are still primarily focused on institutionalized care rather than community-based, primary mental health care facilities. Spending on mental health services has dropped over the past few years. Figures show that the proportion of the budget spent on mental health fell from 13% in 1984, to 7% in 2008. Also, due to budgetary allocations, a high number of vulnerable patients remain in “long-stay” wards, living in unacceptable conditions which clearly infringes upon the right to health.

Concerns and A Vision for Change

Steps still need to be taken to ensure the policy’s implementation.

&

Budgetary concerns

Budgetary allocations are still primarily focused on institutionalized care rather than community-based, primary mental health care facilities.

Spending on mental health services has dropped over the past few years. Figures show that the proportion of the budget spent on mental health fell from 13% in 1984, to 7% in 2008.

Also, due to budgetary allocations, a high number of vulnerable patients remain in “long-stay” wards, living in unacceptable conditions which clearly infringes upon the right to health.

Mental health: Ireland Legislative concerns A Vision for Change requires legislative backing and there has been no legislation promoting the implementation of this policy. Implementation concerns The suggested allocation of €150 million to implement A Vision for Change over 7 to 10 years is inadequate and the designation of “7 to 10” years for policy implementation is far too broad and unspecific. In 2006-2007 €51 allocated; MHC, 2009 did not see evidence of it A key recommendation of A Vision for Change was to establish four child-appropriate in-patient facilities , however, by April 2008, none had been created. Furthermore, in 1982 the Irish Government promised to deliver four secure units for people who are a risk to themselves or others . As of 2008 there were still no units established.

Legislative concerns

A Vision for Change requires legislative backing and there has been no legislation promoting the implementation of this policy.

Implementation concerns

The suggested allocation of €150 million to implement A Vision for Change over 7 to 10 years is inadequate and the designation of “7 to 10” years for policy implementation is far too broad and unspecific.

In 2006-2007 €51 allocated; MHC, 2009 did not see evidence of it

A key recommendation of A Vision for Change was to establish four child-appropriate in-patient facilities , however, by April 2008, none had been created.

Furthermore, in 1982 the Irish Government promised to deliver four secure units for people who are a risk to themselves or others . As of 2008 there were still no units established.

The way forward… A new implementation plan has been circulated by the Health Service Executive (HSE) Budget benchmarks and clear indicators allowing progress to be monitored. Monitoring of budgetary allocations that take into consideration policies of A Vision for Change, and not merely adhering to historic budgetary tendencies. The appointment of an implementing authority (i.e. Directorate) by the HSE as recommended in A Vision for Change ASAP. Ensure higher quality of mental health care. Medicines, treatment, and training must be appropriate and up-to-date and services must be delivered in a sensitive manner, taking into account the particular needs of mental health patients. Participation of people living with mental difficulties in decision-making and policy-making, ensuring transparency at every stage of implementation.

A new implementation plan has been circulated by the Health Service Executive (HSE)

Budget benchmarks and clear indicators allowing progress to be monitored.

Monitoring of budgetary allocations that take into consideration policies of A Vision for Change, and not merely adhering to historic budgetary tendencies.

The appointment of an implementing authority (i.e. Directorate) by the HSE as recommended in A Vision for Change ASAP.

Ensure higher quality of mental health care. Medicines, treatment, and training must be appropriate and up-to-date and services must be delivered in a sensitive manner, taking into account the particular needs of mental health patients.

Participation of people living with mental difficulties in decision-making and policy-making, ensuring transparency at every stage of implementation.