Anand Grover UN Special Rapporteur on the Right to the Highest Attainable Standard of Physical and Mental health

Irish Mental Health Coalition ConferenceDublin

Monday, 18th May, 2009

“The right to the highest attainable standard of mental

health.”

1) International law2) Framework of the right to health3) Mental health in Ireland4) The way forward

Mental health: factsMajor depression is now the leading cause

of disability globally and ranks 4th in the 10 leading causes of the global burden of disease.

If projections are correct, within the next 20 years major depression will rank 2nd 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 suchpersons, shall be treated with humanity and respect for the inherent dignity of the human person.”

The right to health under international lawThe 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.”

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.

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

The right to health: frameworkGeneral Comment 14 (2000), establishes a

framework for the realization of the right to health.

Underlying conditions & determinants of healthSafe drinking water and adequate sanitationHealthy nutritionHealth related education and informationHealthy working and environmental conditionsHousing, unemployment, and income supportSupport for those falling below poverty line.Gender equalityNon-discrimination and social inclusion

The right to health: entitlementsEntitlements to:Appropriate health care servicesCommunity based servicesAvailability of health care institutionsAccess to essential medicinesAdequate health care providersProvision of health-related education and

information

The right to health: elementsElements 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 StatesDuties 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 equalityPrinciple of non-discrimination and equalityDefinition 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 modelParticipation 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: AccountabilityMonitoring 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: FreedomFreedom :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 Actthe 2005 Disability Actthe 2008 Scheme of the Mental Capacity BillA Vision for Change, 2006

Mental Health: IrelandA 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 dignityDevelopment of community based model approach to mental

health careClosure of mental hospitalsThe 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 rightNon-stigmatic and non-discriminatory approach (language,

service user and caregivers ) Need to tackle stigma: social exclusion; poverty; lack of

employment; housing issuesSpecial needs of minorities; historical and marginalized

populationsMulti-disciplinary approachEvidence-based based best practice programmes

Mental health: IrelandConcerns 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: IrelandLegislative concerns A Vision for Change requires legislative backing and there has

been no legislation promoting the implementation of this policy.

Implementation concernsThe 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.