Human rights and mental health The relationship between health and human rights is mutually reinforcing. Where human rights are respected, protected and fulfilled people are more likely to attain the best possible standard of health and health systems are more likely to be responsive to the rights of patients and staff and so work better.

Right to health “The right to the highest attainable standard of physical and mental health” Not right to be healthy! Immediate obligations Progressive full realisation Freedoms and entitlements Right to underlying determinants of health (adequate water, sanitation, housing, nutrition etc) Right to available, accessible, acceptable, and quality health care, services and information

UN Disability Convention and mental health The Convention spells out what should be done to break down the barriers which people with long term physical, mental, intellectual or sensory impairments may face in realising their human rights. As such, the Convention is relevant to people with experience of mental health problems. The Convention makes absolutely clear that disabled people have the same rights as everyone else and it sets out what is required to respect, protect and fulfill those rights in reality

Mental health law in Scotland and human rights Scotland recognized for having international best practice law which link mental health, legal capacity and adult protection with human rights The Adults With Incapacity Act (Scotland) 2000, The Mental Health (Care and Treatment) (Scotland) Act 2003 and The Adult Support and Protection (Scotland) Act 2007 all explicitly reference human rights principles - participation, least restrictive alternative and non- discrimination CRPD is not part of domestic law but it can help us to understand and interpret the rights in the Human Rights Act. Considerable developments in understanding of ECHR rights in areas related to mental health since the laws in Scotland were adopted.

ECHR Article 2 Right to Life Before discharge from hospital, any mental health service should now consider the risk to life of the person and take proper protection measures. There is a positive duty to investigate failure to protect the right to life.

ECHR Article 3 Freedom from Inhuman or Degrading Treatment European Court of Human Rights has held that restraint for force feeding can be justified on right to life grounds but the way in which restraint is carried out can breach Article 3 prohibition of inhuman or degrading treatment

ECHR Article 8 UN Disability Convention Article 12 - right to legal capacity “on an equal basis with all others in all aspects of life” Right to access support needed to exercise capacity and informed consent. Support must “respect the rights, will and preferences of the person…”, be “free of conflict of interest and undue influence.” Article 8 ECHR - Right to participate in decisions that affect you, any interference must be legal, necessary and proportionate Presumption in favour of full capacity

Legal capacity in ECHR case law European Court of Human Rights has held that: “…the existence of a mental disorder, even a series one cannot be the sole reason to justify full incapacitation”. Any interference with legal capacity – such as a finding of full or partial incapacity or a guardianship order – is an interference with the right to private and family life and must be based on law, pursue a legitimate aim and be a proportionate means of achieving that aim”

Capacity law in Scotland Adults With Incapacity (Scotland) Act - in line with international human rights law and the “functional” approach to capacity: presumption of capacity, the duty to support decision making and a functional, rather than a status approach But remains to be seen how the UN Committee on the Rights of Persons with Disabilities will regard Scotland’s overall compliance with Article 12 of the CRPD – e.g. how is the law implemented? The rights based implementation of capacity law may be strengthened in practice with a more explicit linkage to, for example, the need to ensure legality, necessity and proportionality in any interference with autonomy in decision making.

Progressive realisation UN Disability Convention includes economic, social and cultural rights - requires progressive realization of the availability, accessibility, acceptability and quality of mental health services across the country. For example, where disparity in access to services in remote parts of Scotland – the State has an obligation to gradually improve and to raise standards Evidence of the systematic gaps in protection needed

A human rights based approach? Scotland’s National Dementia Strategy is an example of a human rights based strategy which is built around the PANEL framework of participation, accountability, non- discrimination, empowerment and legality drafting of the Charter of Rights for People with Dementia and their Carers in Scotland

A Human Rights Based Approach Empowerment – supporting people to know and claim their rights – example of PPR Project and ‘Card Before You Leave’ Ability – supporting public authorities & others to adopt a human rights based approach – example of The State Hospital evaluation Accountability – increasing accountability for respecting, protecting and fulfilling human rights – example of integrated impact assessment by NHS Scotland, Mental Welfare Commission Guidelines, development of indicators and patient-centred outcomes

Practice and Participation of Rights ‘Card Before you Leave’ Northern Ireland example – high rates of suicide and self-harm amongst young men – campaigning from bereaved families for better engagement ‘Card before you leave’ appointment system for in-patients and Accident + Emergency patients Service users themselves can suggest, define, and monitor tangible changes to mental health services, changes that have the potential to save lives. Supported by international law: ICESCR GC 14 and Special Rapporteur on the Right to Health stress importance of proper referral systems =gOGF_O-9p-k

Putting HRBA into practice – why? The State Hospital findings “I was told when I was coming to Carstairs that I would be leaving my rights at the front door – and it isn’t like that now” Better for staff and patients: –Increased staff and patient engagement, work-related satisfaction amongst staff and satisfaction among patients over their care and treatment, Reduction in staff stress, anxiety and “fear” of human rights “Patients are no longer invisible in a blanket policy; you see them as individuals not as a group” “Patients have increasingly recognised their responsibilities as well as their rights” More rights respecting culture: –Every interference with someone’s rights, staff, patient or carer, had to be justified: legal, necessary, proportionate; –Decrease in complaints by patients and carers (care & treatment and relating to human rights) –Fewer seclusions, restraints

YOUR Convention; YOUR rights Outreach role Sharing lived experiences EHRC/ SHRC parallel report Participation through DPOs International Disability Alliance network An Action Plan? Scottish Government Consultation on Mental Health Strategy Seminar series Animation