34/32 Mental health and human rights - Report of the United Nations High Commissioner for Human Rights

GE.17-01400(E)



Human Rights Council Thirty-fourth session

27 February-24 March 2017

Agenda items 2 and 3

Annual report of the United Nations High Commissioner

for Human Rights and reports of the Office of the

High Commissioner and the Secretary-General

Promotion and protection of all human rights, civil,

political, economic, social and cultural rights,

including the right to development

Mental health and human rights

Report of the United Nations High Commissioner for Human Rights

Summary

The present report, mandated by the Human Rights Council in resolution 32/18,

identifies some of the major challenges faced by users of mental health services, persons

with mental health conditions and persons with psychosocial disabilities. These include

stigma and discrimination, violations of economic, social and other rights and the denial of

autonomy and legal capacity.

In the report, the High Commissioner recommends a number of policy shifts, which

would support the full realization of the human rights of those populations, such as the

systematic inclusion of human rights in policy and the recognition of the individual’s

autonomy, agency and dignity. Such changes cover measures to improve the quality of

mental health service delivery, to put an end to involuntary treatment and

institutionalization and to create a legal and policy environment that is conducive to the

realization of the human rights of persons with mental health conditions and psychosocial

disabilities.

United Nations A/HRC/34/32

Contents

Page

I. Introduction ................................................................................................................................... 3

II. Terminology and background ....................................................................................................... 3

III. The right to health framework ....................................................................................................... 4

IV. Challenges with implications for human rights in mental health .................................................. 5

A. The experience of living with mental health conditions ....................................................... 6

B. Systemic challenges applicable to mental health .................................................................. 7

V. The human rights-based approach to disability in the context of mental health ........................... 9

A. Equal recognition before the law .......................................................................................... 9

B. The absolute ban on deprivation of liberty on the basis of impairments .............................. 10

C. Forced treatment: forced medication, overmedication and harmful practices

during deprivation of liberty ................................................................................................. 11

VI. Charting the way forward .............................................................................................................. 11

A. Human rights-based approach .............................................................................................. 12

B. Good practices ...................................................................................................................... 15

C. Technical support and capacity-building .............................................................................. 17

VII. Conclusions ................................................................................................................................... 18

I. Introduction

1. On 1 July 2016, the Human Rights Council adopted resolution 32/18 on mental

health and human rights. In the resolution, the Council requested the High Commissioner to

prepare a report on the integration of a human rights perspective in mental health and the

realization of the human rights and fundamental freedoms of persons with mental health

conditions or psychosocial disabilities, including persons using mental health and

community services, and to submit the report to the Human Rights Council at its thirty-

fourth session. The Council specified that the report should identify existing challenges and

emerging good practices, make recommendations in that regard and identify means of

strengthening technical assistance and capacity-building, taking into account existing

activities and experiences in this area.

2. The Office of the United Nations High Commissioner for Human Rights (OHCHR)

invited submissions from a range of stakeholders, including Member States, special

procedure mandate holders, United Nations human rights treaty bodies, the World Health

Organization and civil society organizations. OHCHR received a total of 40 submissions, of

which 18 were contributed by Member States.1 Although the High Commissioner does not

reference individual submissions, they were an important source of the research on which

the report draws, particularly in relation to challenges and recommendations.

3. Given the extensive scope of the resolution, and the fundamentally broad nature of

the human rights, mental health and disability agendas, the report is focused on providing

an overview of some of the most significant challenges faced by the groups identified in the

resolution, the normative framework applicable to their human rights and policies and

practices, which would support their full realization. The report also makes

recommendations in these areas, as well as in relation to capacity-building and technical

support.

II. Terminology and background

4. The right to the highest attainable standard of physical and mental health is a

fundamental human right indispensable for the exercise of other human rights. 2 Health

describes a state of “complete physical, mental and social well-being and not merely the

absence of disease or infirmity”.3 Mental health may, in its turn, be defined as “a state of

well-being in which an individual realizes his or her own abilities, can cope with the normal

stresses of life, can work productively and is able to make a contribution to his or her

community”.4 In the case of children and adolescents, mental health refers to “the capacity

to achieve and maintain optimal psychological functioning and well-being”.5

5. Three different categories should be clearly distinguished among those referred to in

resolution 32/18: persons using mental health services (who are current or potential users of

1 Submissions were received from the following Member States: Australia, Bolivia (Plurinational State

of), Brazil, Colombia, Egypt, Germany, Guatemala, Hungary, Ireland, Jamaica, Monaco, Netherlands,

Oman, Portugal, Qatar, Republic of Moldova, Saudi Arabia and Serbia.

2 See Committee on Economic Social and Cultural Rights, general comment No. 14 (2000) on the right

to the highest attainable standard of health, para. 1.

3 Constitution of the World Health Organization (WHO), preamble.

4 See www.who.int/mediacentre/factsheets/fs220/en/.

5 South Africa, Department of Health, Policy Guidelines: Child and Adolescent Mental Health (2001),

p. 4.

mental health and community services); persons with mental health conditions; and persons

with psychosocial disabilities, namely, persons who, regardless of self-identification or

diagnosis of a mental health condition, face restrictions in the exercise of their rights and

barriers to participation on the basis of an actual or perceived impairment. These

categorizations may overlap: a user of mental health services may not have a mental health

condition and some persons with mental health conditions may face no restrictions or

barriers to their full participation in society. The groupings should not determine or

undermine the protection of their rights recognized under human rights law, including the

rights enshrined in the Convention on the Rights of Persons with Disabilities, the

International Covenant on Economic, Social and Cultural Rights and the International

Covenant on Civil and Political Rights.

III. The right to health framework

6. The right to health is recognized, either explicitly or implicitly, in several human

rights instruments, including the International Covenant on Economic, Social and Cultural

Rights (art. 12), the Convention on the Rights of the Child (art. 24), the Convention on the

Rights of Persons with Disabilities (art. 25) and the Convention on the Elimination of All

Forms of Discrimination against Women (arts. 10 (h), 11 (1) (f), 11 (2), 12 and 14 (2) (b)).

It is an inclusive right encompassing both timely and appropriate health care and the

underlying determinants of health.6 In the case of mental health, determinants include low

socioeconomic status, violence and abuse, adverse childhood experiences, early childhood

development and whether there are supportive and tolerant relationships in the family, the

workplace and other settings.

7. The right to health contains freedoms (such as the freedom to control one’s health

and body and the right to be free from interference, torture and non-consensual medical

treatment) and entitlements (such as the right to a health system that provides equality of

opportunity for people to enjoy the highest attainable level of health). 7 While, in

recognition of resource constraints, the right to health is subject to progressive realization,

the freedom element in the right to health is subject to neither progressive realization nor

resource availability.8

8. States parties to the International Covenant on Economic, Social and Cultural Rights

have a core obligation to fulfil the minimum essential levels of each right. The core

obligations applicable to the right to health include ensuring the right of access to health

facilities, goods and services on a non-discriminatory basis, especially for vulnerable or

marginalized groups; ensuring access to adequate food and nutrition; ensuring access to

basic shelter, housing and sanitation; providing access to essential drugs; ensuring an

equitable distribution of all health facilities, goods and services; and adopting and

implementing a national public health strategy and plan of action which address the health

concerns of the whole population.9 Among the obligations of comparable import are the

obligations to ensure child health care, to provide education and access to health

information and to provide appropriate training for health personnel, including education on

health and human rights.10 These core obligations apply as much to mental health as to

physical health.

6 See Committee on Economic, Social and Cultural Rights, general comment No. 14, paras. 4 and 11.

7 Ibid., para. 8.

8 See E/CN.4/2005/51, para. 41.

9 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 43.

10 Ibid., para. 44.

9. The human rights-based approach derived from these norms calls for States to

ensure that health facilities, goods and services for mental health are available in sufficient

quantity and are accessible and affordable on the basis of non-discrimination. They are also

required, among other things, to be gender-sensitive, scientifically and medically

appropriate, of good quality and respectful of medical ethics, such as respect for autonomy

and agency without discrimination. An integral feature of the right to health, the meaningful

participation of all stakeholders in decisions and policies on health, particularly those

affected, should be ensured for persons with mental health conditions and others using

mental health services through transparent processes.11 This involves effective community

action in setting priorities, making decisions, planning, implementing and evaluating

strategies to achieve better health,12 including mental health. Health authorities and other

duty bearers should be accountable for meeting human rights obligations in public health,

including through the possibility of seeking effective remedies via complaints mechanisms

or other avenues for redress.

10. The formal legal framework has been complemented by the political commitments

made in the 2030 Agenda for Sustainable Development, especially Goal 3, which aims to

ensure healthy lives and promote well-being for all at all ages. Target 3.4 addresses the

reduction of premature mortality from non-communicable diseases and the promotion of

mental health and well-being. The prevention and treatment of substance abuse, including

narcotic drug abuse and the harmful use of alcohol, fall under target 3.5, while other targets,

such as those relating to universal health coverage and tobacco control, focus on areas of

clear relevance, even where mental health is not specifically referenced.

IV. Challenges with implications for human rights in mental health

11. The current estimates are that mental health conditions will affect one in four people

throughout their lifetime. 13 However, nearly two thirds of persons with mental health

conditions will not seek treatment for their condition.14 Persons with mental conditions also

experience disproportionately higher rates of poor physical health for a variety of reasons.15

One important reason is that poor mental health is a predisposing factor for physical health

problems. Another is “diagnostic overshadowing”, where symptoms of physical ill-health

are erroneously attributed to mental health conditions and, consequently, either not

adequately treated or ignored altogether. 16 Stigma is also a significant determinant of

quality of care and access to the full range of services required by persons with mental

health conditions who also have physical complaints.17 Research shows that persons with

mental health conditions have a much reduced life expectancy compared with the general

population, with an estimated drop in life expectancy of 20 years for men and 15 years for

11 See A/60/348, para. 57.

12 See Committee on Economic, Social and Cultural Rights, para. 54.

13 Jessica Mackenzie and Christie Kesner, “Mental health funding and the SDGs. What now and who

pays?”, Overseas Development Institute (2016), p. 9, and WHO mental health fact sheet (April 2016)

available from www.who.int/mediacentre/factsheets/fs396/en/.

14 WHO, Mental disorders affect one in four people

www.who.int/whr/2001/media_centre/press_release/en/.

15 WHO, “Mental health action plan 2013-2020”, para. 11.

16 Royal College of Psychiatrists, “Whole-person care: from rhetoric to reality. Achieving parity

between mental and physical health”, occasional paper OP88, (2013), p. 28.

17 See David Lawrence and Rebecca Coghlan, “Health inequalities and the health needs of people with

mental illness”, New South Wales Public Health Bulletin, vol. 13, No. 7 (July 2002).

women.18 In some countries, the absence of community-based mental health care means the

only care available is in psychiatric institutions, which are associated with gross human

rights violations, including inhuman and degrading treatment and living conditions.19

A. The experience of living with mental health conditions

1. Barriers to the enjoyment of economic and social rights and the underlying

determinants of mental health

12. While statistics are important to understanding the breadth of the challenges

presented by mental health conditions, it is the individual who should remain the central

figure in the discourse around these questions. The experience of living with mental health

conditions is shaped, to a great extent, by the historical and continuing marginalization of

mental health in public policy. This manifests itself in, among other areas, social life,

inequality of access to opportunities and the overrepresentation of persons with mental

health conditions in populations living in poverty. 20 Indeed, today, one of the most

important health and human rights challenges is to enhance enjoyment of the right to health

for those living in poverty.21

13. Mental health is not merely a health issue. There is a strong link between mental

health and poverty, as well as between mental health conditions and the economic hardship

resulting from the inadequate realization of economic, social and cultural rights, such as the

rights to education, work, housing, food and water. 22 These and other rights are also

underlying determinants of mental health and, consequently, the extent to which they are

realized affects the enjoyment of the right to mental health. The failure to adopt policy

approaches which take account of these and other determinants of mental health is,

similarly, a major barrier to the realization of the right to mental health.

14. According to the Special Rapporteur on the right to health, the “tendency to

undermine the importance of economic, social and cultural rights has led, and continues to

lead, to a detrimental combination of poverty, inequalities and disempowerment of large

groups of population, who will consequently suffer from poor health status and barriers to

accessing health-care services. 23 The interruption of and restricted access to education

experienced by many persons with mental health conditions, for instance, limits the

opportunities available for obtaining qualifications which would facilitate gainful

employment. Difficulty in securing employment and remaining in work or otherwise

generating income has negative consequences for the ability to access and retain adequate

housing. Taken together, these challenges perpetuate social inequality and have a ruinous

and enduring impact on the enjoyment of the right to an adequate standard of living and,

consequently, on mental health and access to health services.

18 Kristian Wahlbeck and others, “Outcomes of Nordic mental health systems: life expectancy of

patients with mental disorders”, British Journal of Psychiatry, vol. 199, No. 6 (December 2011). See

also Stephen C. Newman and Roger C. Bland, “Mortality in a cohort of patients with schizophrenia: a

record linkage study”, Canadian Journal of Psychiatry, vol. 36, No. 4 (June 1991).

19 See A/HRC/22/53, paras. 59, 63-70.

20 See Florida Council for Community Mental Health, “Mental illness and poverty: a fact sheet”

(January 2007), available from www.fccmh.org/resources/docs/MentalIllnessandPovery.pdf. See also

Sally McManus and others “Adult psychiatric morbidity in England, 2007. Results of a household

survey”, NHS Information Centre for Health and Social Care (2009).

21 See A/HRC/4/28, para. 20.

22 A/HRC/29/33 para. 28.

23 Ibid., para. 53.

2. Stigma and discrimination

15. There are many negative beliefs around mental health conditions, such as that they

are evidence of personal weakness or that they have their origins in witchcraft or spiritual

or supernatural phenomena.24 Together with deeply engrained, adverse stereotypes around

persons living with or perceived as having mental health conditions, including the belief

that they are incapable of exercising agency over decisions that affect them or of

contributing positively to society, these misconceptions have been largely responsible for

creating and perpetuating stigma and discrimination.

16. This stereotyping, prejudice and stigmatization is present in every sphere of life,

including social, educational, work and health-care settings, and profoundly affects the

regard in which the individual is held, as well as their own self-esteem. The lack of

systematic training and awareness-raising for mental health personnel on human rights as

they apply to mental health allows stigma to continue in health settings, which

compromises care. In relation to access to health care, medical insurance schemes often

incorporate terms that indirectly discriminate against persons with mental health conditions.

Pre-existing conditions or assessments, for instance, may disqualify them from obtaining

full health coverage, based on a diagnosis of a mental health condition.

3. Lack of free and informed consent

17. As noted by the Special Rapporteur on the right of everyone to the enjoyment of the

highest attainable standard of physical and mental health, informed consent is not mere

acceptance of a medical intervention, but a voluntary and sufficiently informed decision,

protecting the right of the patient to be involved in medical decision-making and assigning

associated duties and obligations to health-care providers.25 In order for consent to be valid,

it should be given voluntarily and on the basis of complete information on the nature,

consequences, benefits and risks of the treatment, on any harm associated with it and on the

availability of alternatives.26 Involuntary treatment refers to the administration of medical

or therapeutic procedures without the consent of the individual. Treatment administered, for

example, on the basis of misrepresentation would constitute involuntary treatment, as

would treatment given under threat, without full information or on dubious medical

grounds. 27 Guaranteeing informed consent is a fundamental feature of respecting an

individual’s autonomy, self-determination and human dignity.28

B. Systemic challenges applicable to mental health

18. The right to health entitles rights holders to a health system that supports the

attainment of the highest level of health. The concerns identified below have particular

relevance in the context of this standard and for the availability, acceptability, accessibility

and quality of mental health services.

24 WHO and World Organization of Family Doctors, Integrating Mental Health into Primary Care: a

Global Perspective, p. 168.

25 See A/64/272, para. 9.

26 Ibid., para. 15.

27 European Agency for Fundamental Rights, “Involuntary placement and involuntary treatment of

persons with mental health problems” (2012), pp. 44-47.

28 See A/64/272, para. 18.

1. Maximum available resources

19. Despite the impact of mental health conditions on individuals, families and

communities, there is insufficient investment of both financial and human resources in the

area of mental health. Global annual spending on mental health is less than $2 per person

and less than $0.25 per person in low-income countries.29 This affects the provision of

services, as inadequate numbers of staff, often with insufficient training, especially in the

area of human rights, are required to deliver services which are in accordance with human

rights standards. In addition, the largest proportion of most mental health budgets is

typically allocated to psychiatric hospitals.30 This continued investment by Governments in

institutional settings, such as psychiatric hospitals, is often accompanied by a corresponding

failure to invest in community-based mental health services and supports, which have been

widely established as good practices, as more fully explained below. The inadequate

allocation of resources and poor decisions taken as to their use, undermine the availability,

acceptability, accessibility and quality of mental health services. They also fall foul of

article 2 (1) of the International Covenant on Economic, Social and Cultural Rights, which

requires States parties to employ their maximum available resources for the progressive

realization of the rights recognized in the Covenant, including the right to health.

2. Provision of services in a segregated manner

20. Although there has been progress over the last few decades, the segregation and

centralization of mental health services around psychiatric hospitals and institutions

continues to pose a challenge in certain important respects. The failure to integrate

interdisciplinary mental health services into primary care renders a “whole person”

approach extremely difficult. In many countries, there are no mental health services

available in local health clinics and general hospitals, forcing people in remote areas to

travel long distances, often at high cost. Where mental health care and support services are

provided in segregated systems and social care institutions, there is a higher risk of human

rights violations.31

3. Valuing mental health

21. In the context of health, the concept of parity of esteem refers to valuing mental

health equally with physical health.32 From a normative standpoint, the framework which

establishes the right to health does not create a hierarchy where mental health is ranked

lower than physical health. The strong relationship between physical and mental health

calls for an approach which accords equal value to both and yet a lack of parity of esteem,

where preferential consideration is given to physical health, remains the dominant

perspective. Consequently, among other discrepancies, fewer financial and human

resources are allocated for mental health and many mental health facilities tend to be

dilapidated, with lower hygiene standards and fewer amenities. There are also significant

data and research gaps in mental health, particularly in relation to the identification of the

human rights situation of persons with mental health conditions and users of mental health

services, and the impact of policy measures.

29 See WHO, “Mental health action plan 2013-2020”, para. 14.

30 WHO, Mental Health Atlas 2014, p. 9.

31 See E/CN.4/2005/51, para. 8.

32 Royal College of Psychiatrists, “Whole-person care: from rhetoric to reality”, p. 20.

V. The human rights-based approach to disability in the context of mental health

22. The Convention on the Rights of Persons with Disabilities adopts a human rights-

based approach to disability and supersedes previous international “soft law” developments,

including the Principles for the Protection of Persons with Mental Illness and the

Improvement of Mental Health Care. It reflects the most advanced international human

rights standards on the rights of persons with psychosocial disabilities.

23. The human rights-based approach to disability, in addition to other principles,

requires the unconditional application of the principle of non-discrimination with regard to

persons with disabilities. No additional qualifiers associated with an impairment may

justify the restriction of human rights. For example, persons with psychosocial disabilities

should not be arbitrarily deprived of their liberty on the basis of their impairment including

in conjunction with an alleged danger to themselves or to others.33 Mental health policy

should adopt and integrate this approach and guard against lowering standards.

24. Widespread practices circumvent the substantive equality approach for persons with

psychosocial disabilities in public and private settings, including through the failure to

provide reasonable accommodation, that is, the necessary and appropriate modification and

adjustments not imposing a disproportionate or undue burden, where needed in a particular

case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with

others of all human rights and fundamental freedoms. 34 Disability determination or

certification schemes, where they exist, may not recognize them as persons with

disabilities, which can lead to their exclusion from disability-specific social protection

schemes.

A. Equal recognition before the law

25. Article 12 of the Convention on the Rights of Persons with Disabilities affirms the

right of persons with psychosocial disabilities to equal recognition before the law,

upholding their right to exercise legal capacity on an equal basis with others. In the area of

mental health, legal capacity has an important application in the exercise of free and

informed consent. Many national laws continue to allow for the denial of legal capacity of

persons with psychosocial disabilities, precluding them from making their own decisions.

These substituted decision-making regimes commonly permit third parties to provide

consent for treatment or admission for treatment on behalf of the person concerned.

26. States should repeal legal frameworks allowing substitute decision makers to

provide consent on behalf of persons with disabilities and introduce supported decision-

making, ensuring its availability for those who request it. Health service providers should

seek the free and informed consent of the person concerned by all possible means.35

27. Compliance with the standards on accessibility of information and communications

in the Convention on the Rights of Persons with Disabilities is a key precondition for the

exercise of legal capacity and free and informed consent. For example, information on

treatments and side-effects is often not available in Braille, sign language, or other

alternative modes of communication. While health services may progressively advance in

33 See CRPD/C/DNK/CO/1, para. 36 and CRPD/C/SWE/CO/1, para. 35.

34 Convention on the Rights of Persons with Disabilities, art. 2.

35 See Committee on the Rights of Persons with Disabilities, general comment No. 1 (2014) on equal

recognition before the law, para. 41.

complying with accessibility requirements, they do have an immediate obligation to

provide reasonable accommodation.36

28. In certain situations, the will of the person concerned might be difficult to determine.

Instruments such as advance directives or powers of attorney should be promoted and

clearly formulated to prevent misunderstanding or arbitrariness by those executing them.

Even when such instruments are in force, persons with psychosocial disabilities must

always retain their right to modify their will and service providers should continue to seek

their informed consent. The Committee on the Rights of Persons with Disabilities has held

that, in all cases, it should be understood that article 12 of the Convention on the Rights of

Persons with Disabilities prohibits resorting to the principle of the “best interests” of the

individual in relation to adults with disabilities. 37 Significant efforts must be made to

determine the individual’s will and preferences, ensuring that all possible accommodations,

supports and diverse methods of communication are made available and accessible. Where

all means have been exhausted and the individual’s will remains undetermined, the

principle of “the best interpretation of will and preferences of the individual” must be

upheld and carried out in good faith. 38

B. The absolute ban on deprivation of liberty on the basis of impairments

29. Article 14 of the Convention on the Rights of Persons with Disabilities establishes

an absolute ban on deprivation of liberty on the basis of impairments, which precludes non-

consensual commitment and treatment. 39 This provision reflects the non-discriminatory

approach guaranteed by the Convention in connection with the right to liberty and security

of person. The Committee on the Rights of Persons with Disabilities has clearly and

consistently confirmed the non-discriminatory approach to the right to liberty, which

establishes the unambiguous prohibition on deprivation of liberty on the basis of

impairments, whether or not it is connected with other factors.

30. Persons with psychosocial disabilities continue to be subjected to forced

institutionalization, as allowed by civil codes and mental health laws in many countries.

Deprived of their liberty, they are commonly subjected to forced treatment, and living

conditions and arrangements may also put their physical and mental integrity at risk.

Children or adults detained in institutions are at increased risk of violence and abuse,

including sexual exploitation and trafficking.40 The Special Rapporteur on torture and other

cruel, inhuman or degrading treatment or punishment has found that children in residential

or institutional care are at greater risk of mental health trauma, violence and abuse, and that

the severe emotional pain and suffering caused by segregation may rise to the level of ill-

treatment or torture.41 Outside of institutions, the use of community treatment orders or

mandatory outpatient treatment, even if enforced in the community, violates the right to

36 See A/HRC/34/26, para. 33.

37 See Committee on the Rights of Persons with Disabilities, general comment No. 1, para. 21.

38 Ibid., para. 21.

39 See Committee on the Rights of Persons with Disabilities, guidelines on article 14 of the Convention,

paras. 6 and 10.

40 See, for example, Disability Rights International and the Comisión Mexicana de Defensa y

Promoción de los Derechos Humanos, “Abandoned and disappeared: Mexico’s segregation and abuse

of children and adults with disabilities” (2010). See also Disability Rights International, “No justice:

torture, trafficking and segregation in Mexico” (2015); “Left behind: the exclusion of children and

adults with disabilities from reform and rights protection in the Republic of Georgia” (2013); and

“International collaboration for inclusion: a study funded by the United States Department of State”

(2014). Available at www.driadvocacy.org.

41 A/HRC/28/68.

liberty and security of the person as such measures impose treatment and the threat of

detention if refused.

31. Forced institutionalization violates the right to personal liberty and security,

understood as freedom from confinement of the body and freedom from injury to one’s

bodily or mental integrity, respectively. 42 It amounts to a violation of the right to live free

from torture and ill-treatment,43 and from exploitation, violence and abuse, and of the right

to personal integrity. States parties should repeal legislation and policies that allow or

perpetuate involuntary commitment, including its imposition as a threat, and should provide

effective remedies and redress for victims.44

32. Criminal law and procedures commonly deny due process of law to persons with

disabilities considered unfit to stand trial and/or incapable of criminal responsibility,

leading to deprivation of liberty on the basis of impairment, including through the diversion

of persons with psychosocial disabilities into the custody of forensic institutions. The

Committee on the Rights of Persons with Disabilities has consistently considered that this

denies fair trial rights, amounts to arbitrary detention and often leads to harsher

consequences than criminal sanctions, such as indefinite detention in mental health

facilities.

C. Forced treatment: forced medication, overmedication and harmful

practices during deprivation of liberty

33. Many practices within mental health institutions also contravene articles 15, 16 and

17 of the Convention on the Rights of Persons with Disabilities. Forced treatment and other

harmful practices, such as solitary confinement, forced sterilization, the use of restraints,

forced medication and overmedication (including medication administered under false

pretences and without disclosure of risks) not only violate the right to free and informed

consent, but constitute ill-treatment and may amount to torture. 45 Accordingly, the

Committee on the Rights of Persons with Disabilities has called for the abolition of all

involuntary treatment and the adoption of measures to ensure that health services, including

all mental health services, are based on the free and informed consent of the person

concerned.46 The Committee has also urged the elimination of the use of seclusion and

restraints, both physical and pharmacological.47

VI. Charting the way forward

34. Mental health is not merely a health or medical concern, it is very much a matter of

human rights, dignity and social justice. The overview of the challenges facing persons with

mental health conditions and those with psychosocial disabilities indicates that fundamental

42 See Human Rights Committee, general comment No. 35 (2014) on liberty and security of person,

para. 3.

43 See A/63/175, paras. 47 and 65.

44 See, for example, CRPD/C/CZE/CO/1, para. 33; CRPD/C/DEU/CO/1, para. 34 (c);

CRPD/C/KOR/CO/1, para. 32 and A/HRC/30/37, para. 107 (f).

45 See Committee on Economic, Social and Cultural Rights, general comment No. 14, para. 50,

Committee on the Rights of Persons with Disabilities, general comment No. 1, paras. 37 and 41 and

A/HRC/22/53, para. 63.

46 See, for example, CRPD/C/ESP/CO/1, para. 36; CRPD/C/HUN/CO/1, para. 28 and

CRPD/C/AUT/CO/1, para. 31.

47 See, for example, CRPD/C/AUT/CO/1, para. 33; CRPD/C/MEX/CO/1, para. 32; and

CRPD/C/DNK/CO/1, para. 39.

changes are necessary in current approaches to the protection of their rights and how that

protection is implemented in policy. Key to this is recognizing that the individuals

concerned, including children, have agency, self-determination and rights, which should be

protected and respected.

35. The following sections of the report include recommendations for action to

implement the changes necessary to address the challenges identified. They are organized,

structurally, around the integration of a human rights-based approach, good practices and

technical support and capacity-building, although their cross-cutting objective is,

ultimately, the protection of the rights of the groups identified in Council resolution 32/18.

A. Human rights-based approach

1. Data collection

36. The collection of comprehensive qualitative and quantitative data is a vital

component of a human rights-based approach. In the context of mental health, data

collection should focus, inter alia, on resource allocation, disparities in access to health care

and support, the identification of the most vulnerable and marginalized, patterns of

discrimination, access to employment, housing and education, and the general

socioeconomic situation of persons using mental health services. Data should be

disaggregated by age, sex, socioeconomic status, disability and other factors, as relevant to

the national context, and should be utilized to inform policy formulation and legislation and

develop effective responses.

2. Creating an enabling legal and policy environment for the enjoyment of rights

37. Few countries have a legal framework that adequately protects the rights of users of

mental health services, persons with mental health conditions or those with psychosocial

disabilities. Given the direct impact of laws and policies on the realization of human rights,

a legal and policy environment which upholds them is vital and furthermore is mandated by

the obligation of States to respect, protect and fulfil rights.

38. A thorough review of laws and policies, with a view to establishing the extent to

which persons with mental health conditions, users of mental health services and persons

with psychosocial disabilities enjoy their human rights, both within the mental health

system and in the broader social context, is an essential first step to ensuring an enabling

environment. The policy and law review should be evaluated against the human rights

standards outlined in the present report and should specifically integrate a focus on the

underlying determinants of mental health. Action mandated by the relevant findings should

form part of a national strategy and plan on mental health, the implementation of which is

backed by adequate resources.

39. Following this human rights-based assessment, States should update or repeal, as

appropriate, all existing laws, including legislation on employment, equality and non-

discrimination, social protection, housing and education, to ensure that persons with mental

health conditions are not discriminated against and have the same opportunities on an equal

basis with others.

40. A human rights-based approach to mental health requires attention to its underlying

determinants which, as noted earlier, include violence and abuse, adverse childhood

experiences, early childhood development and whether there are supportive and tolerant

relationships in the family, the workplace and other settings. Addressing these and other

determinants involves coordinated action across the health and other relevant sectors with a

view to ensuring policy coherence and the full protection of the rights of persons with

mental health conditions, as outlined in the present section.

41. Other interventions include the promulgation of laws and policies to:

(a) Address and eliminate stigma and discrimination;

(b) Protect the principle of free and informed consent for treatment and prohibit

involuntary treatment and detention;

(c) Protect individuals from human rights violations in health settings;

(d) Prohibit recourse to all forms of substitute decision-making;

(e) Ensure the availability of and equitable access to services and support for

persons with mental health conditions and those with psychosocial disabilities, including

those in prisons and other detention facilities;

(f) Ensure expeditious access to justice where human rights violations have

occurred.

42. Regarding mental health and disability specifically, mental health laws, where they

exist, should avoid the separate regulation of legal capacity, the right to liberty and security,

or other aspects of the law which are amenable to being mainstreamed into general

legislation. In all cases, laws and regulations should be compliant with articles 5, 12, 13, 14,

15, 16, 17 and 25 of the Convention on the Rights of Persons with Disabilities, among other

provisions, and should: (a) prohibit the arbitrary deprivation of liberty on the basis of

impairment, irrespective of any purported justification based on the need to provide “care”

or on account of “posing a danger to him or herself or to others”; (b) ensure the individual’s

right to free and informed consent in all cases for all treatment and decisions related to

health care, including the availability and accessibility of diverse modes and means of

communication, information and support to exercise this right; and (c) in accordance with

the standards of the Convention, develop, adopt and integrate into the legal framework the

practice of supported decision-making, advance directives and the principle of “the best

interpretation of the will and preferences” of the person concerned as a last resort.

3. Participation

43. The full participation of affected communities in the development, implementation

and monitoring of policy has a positive impact on health outcomes and on the realization of

their human rights. Ensuring their participation supports the development of responses that

are relevant to the context and ensures that policies are effective.48 Participation in law-

making and policy design in mental health has typically been directed at health

professionals, as a result of which the concerns and views of users, persons with mental

health conditions and persons with psychosocial disabilities have not been systematically

taken into account and harmful practices have been perpetuated and institutionalized in law

and policies.

44. States should, therefore, ensure that users of mental health services, persons with

mental health conditions and persons with psychosocial disabilities participate

meaningfully during all stages of planning and implementation, as envisaged in article 4 (3)

of the Convention on the Rights of Persons with Disabilities and recommended by the

Committee on Economic, Social and Cultural Rights in its general comment No. 14 (para.

54). With this objective, States should build the capacity of users, persons with mental

health conditions and those with psychosocial disabilities to participate and to claim their

rights. An effective strategy will include education and awareness-raising, and ensuring that

48 See Joint United Nations Programme on HIV/AIDS, “Non-discrimination in HIV responses” (June

2010), paras. 18-22.

transparent and accessible mechanisms for participation are established or strengthened at

community, subnational and national levels.49

4. Resources

45. As noted above, the current expenditure on mental health falls far short of need and

fails to meet the requirement in the International Covenant on Economic, Social and

Cultural Rights to use the maximum available resources. In order to address this, priority

should be given to the development and adequate resourcing of human rights-based

strategies and plans on mental health, informed by the law and policy review recommended

above. Resources should, among other things, be directed towards: (a) raising the quality of

health care as well as ensuring availability, accessibility and acceptability; (b) improving

working conditions for mental health personnel; (c) strengthening health workforce

training, including in human rights; (d) ensuring the provision of the full range of support

services; (e) achieving equality between mental and physical health services across all

domains, including resource allocation, research and data; (f) emergency mental health

services; (g) community-based mental health services; (h) mental health promotion;50 and

(i) ensuring access to education, adequate housing, support for securing and retaining

employment, and social protection

46. An overarching principle which should inform policy in this area is the duty of

States to invest resources in practices that uphold human rights and to adopt “do no harm”

evaluation criteria to avoid further human rights violations. Indeed, resource allocation

towards existing practices in mental health, which are contrary to international human

rights standards, may amplify the impact of harmful practices.

5. Accountability

47. Monitoring, review, remedial measures and corrective action, guided by human

rights-based, context-specific indicators, are cornerstones of any accountability

framework.51 Accountability should have as both a goal and a result the empowerment of

users, persons with mental health conditions and those with psychosocial disabilities,

including through legal and policy measures to ensure their participation in priority-setting

and policy formulation, implementation and review, and to ensure access to remedial

measures where appropriate.52

48. Ensuring access to justice in accordance with article 13 of the Convention on the

Rights of Persons with Disabilities is essential to guaranteeing the redress of and

reparations for human rights violations, including arbitrary detention on the basis of

impairment. Effective remedies, available on an expedited basis, should be in place to

challenge the deprivation of liberty and uphold the principle of informed consent to medical

treatment. Practices that effectively deny fair trial rights (such as the denial of legal

capacity by requiring a guardian to act on a person’s behalf), or that may prevent access to

legal remedies (such as mandatory legal representation), should be discontinued and

prohibited by law.

49. Article 16 of the Convention on the Rights of Persons with Disabilities calls for the

establishment of independent monitoring mechanisms for all services and facilities serving

49 Jyoti Sanghera and others, “Human rights in the new Global Strategy”, BMJ (September 2015).

50 Mackenzie and Kesner, “Mental health funding and the SDGs”, p. 12.

51 Independent Accountability Panel, “2016: Old challenges, new hopes. Accountability for the Global

Strategy for Women’s, Children’s and Adolescents’ Health” (2016), pp. 9-11.

52 Commission on Information and Accountability for Women’s and Children’s Health, “Keeping

promises, measuring results” (2011), p. 7.

persons with disabilities in order to prevent exploitation, violence and abuse. These

mechanisms should include representative organizations of persons with disabilities and

civil society, and should be able to access and monitor institutions while States move

towards deinstitutionalization. This monitoring role should extend to mental health and

community services to ensure that they are conducive to inclusion, participation and the

overall enjoyment of rights on equal basis with others. When abuses in institutions are

identified, States should, as required by article 16 of the Convention, take appropriate

measures to “promote the physical, cognitive, and psychological recovery, rehabilitation

and social reintegration of persons with disabilities who become victims of any form of

exploitation, violence or abuse”.

50. Other measures to promote accountability include the establishment of transparent,

inclusive and participatory processes and mechanisms, with jurisdiction to recommend and

enforce remedial action, in both the health and justice systems. Such mechanisms and

processes include courts or quasi-judicial and non-judicial bodies, complaints mechanisms

within the health system, national human rights institutions and professional standards

associations.53

B. Good practices

1. Mental health care based on recovery

51. Community-based service delivery for mental health should encompass a recovery-

based approach that places the emphasis on supporting individuals with mental health

conditions in achieving their own aspirations and goals.54 A recovery-based approach to

mental health is centred on the strengths of the individual and on facilitating access to the

supports he or she needs, it integrates an understanding of trauma and involves persons with

lived experiences in mental health in the provision of services. This approach requires

“listening and responding to individuals’ understanding of their condition and what helps

them to recover [and] working with people as equal partners in their care”.55

52. Given the close relationship between mental health conditions and trauma, all

mental health services should be “trauma-informed” and designed to avoid re-

traumatization, and staff should be trained to recognize and refrain from engaging in

practices that might trigger painful memories and re-traumatize persons with trauma

histories.56

53. Finally, persons with mental health conditions are the foremost experts in their own

recovery and in assisting others in their recovery. Peer workers provide each other with

support and a sense of belonging, in addition to their expertise, thus reducing unnecessary

admissions, and their use is central to mental health care.57

2. Community-based services

54. The Committee on Economic, Social and Cultural Rights has recommended that

health facilities, goods and services be located within safe physical reach for all sections of

the population, especially vulnerable or marginalized groups, such as persons with

53 Sanghera and others “Human rights in the new Global Strategy”.

54 WHO, “Mental health action plan”, para. 50.

55 Ibid.

56 United States Department of Health and Human Services Substance Abuse and Mental Health

Services Administration, “SAMHSA’s concept of trauma and guidance for a trauma-informed

approach” (July 2014), p. 10.

57 See WHO, “Mental health action plan”, para. 50.

disabilities. 58 Evidence shows that the provision of interdisciplinary and demedicalized

services in the community enables users to remain connected with their families, to

maintain employment and generally to remain close to the support networks which

facilitate early treatment and recovery. Mental health services, particularly in more

developed countries and, increasingly, in developing countries, are usually provided within

specialized systems centred around psychiatric hospitals, in which many practices

contradictory to the standards in the Convention on the Rights of Persons with Disabilities

continue to take place. In order to guarantee the right to access to services for persons with

mental health conditions and psychosocial disabilities, States should ensure the availability

of recovery-based treatment in the community and in the primary care system.

3. Deinstitutionalization

55. The implementation of article 19 of the Convention on the Rights of Persons with

Disabilities on the right to live independently and to be included in the community is

essential for persons with psychosocial disabilities. The recovery approach is consistent

with the purpose of supporting the person in all aspects of their life, personal development,

exercise of autonomy and participation and inclusion in the community.

56. Ensuring that persons with disabilities choose where and with whom they live and

upholding autonomy fosters inclusion in the community. Institutionalization and

institutionalized living arrangements, whether in large facilities or smaller group homes,

amount to segregation and are inconsistent with inclusion in the community. The

Committee on the Rights of Persons with Disabilities has repeatedly expressed concern

about the institutionalization of persons with disabilities and the lack of support services in

the community, and has recommended implementing support services and effective

deinstitutionalization strategies in consultation with organizations of persons with

disabilities.59

57. Effective deinstitutionalization requires an understanding that the right to

community living is more than just access to a physical placement in the community.60

Social support for persons with psychosocial disabilities must be made available at the

same time, including supported and assisted housing, health care, crisis response systems,

income support, support for social networks and access to education and work.61 Social

networks, peer support, circles of support and local community support are valuable, in

particular to address situations of crisis and emergency; they must be acknowledged and

their development supported.

4. Children

58. At least 8 million children live in institutions.62 The Special Rapporteur on the right

of everyone to the enjoyment of the highest attainable standard of physical and mental

health has reported that institutional care in early childhood has such harmful effects that it

should be considered a form of violence against young children. 63 In accordance with

international human rights and good practice norms, States should (a) end the

institutionalization of all children, with and without disabilities; (b) place a moratorium on

58 See general comment No. 14, para. 12 (b).

59 See, for example, CRPD/C/ESP/CO/1, paras. 35-36; CRPD/C/CHN/CO/1, para. 26;

CRPD/C/ARG/CO/1, para. 24.

60 Ibid.

61 WHO and World Bank, World Report on Disability (2011), p. 148.

62 See A/61/299, para. 55.

63 See A/70/213, para. 73.

new admissions of children with disabilities into institutions; 64 (c) protect the right of

children with disabilities to live in the community and the right of all children to grow up in

a family;65 (d) seek alternative family placement rather than any form of residential care for

children who must be removed from their own family; 66 (e) as provided for under article 23

(5) of the Convention on the Rights of Persons with Disabilities, provide alternative care

“within the wider family, and failing that, within the community in a family setting”,67

where the immediate family is unable to care for the child; and (f) ensure that

deinstitutionalization in the case of children is focused on reintegrating them into a family

rather than into a smaller institution.

5. Adequate standard of living

59. Housing and social protection policies, as envisaged in articles 19 and 28 of the

Convention on the Rights of Persons with Disabilities, are essential for ensuring an

adequate standard of living for persons with psychosocial disabilities. Assistance for

housing and family and for the elimination of poverty, malnutrition and social exclusion

has an overall positive impact on the physical and mental health of persons with

psychosocial disabilities. In tandem with such measures, States should promote the

inclusion of persons with psychosocial disabilities in the open labour market so that they

are assured of an income. States should also raise awareness and provide technical guidance

and support on how to provide reasonable accommodation for persons with psychosocial

disabilities in the workplace.

C. Technical support and capacity-building

60. Articles 2.1 of the International Covenant on Economic, Social and Cultural Rights

and 32 of the Convention on the Rights of Persons with Disabilities provide the main

normative bases for technical support and capacity-building in the area of mental health.

Under the Covenant, States have a duty to take steps through international assistance and

cooperation, especially economic and technical cooperation, towards the progressive

realization of the right to health. As noted by the Committee on Economic, Social and

Cultural Rights, there is a particular obligation for States in a position to assist to provide

this assistance to other countries.

61. With respect to persons with psychosocial disabilities, the following measures and

activities are critical for strengthening technical assistance and capacity-building at the

national level. They require the active engagement, participation, involvement and inputs of

people with lived experience of psychosocial disabilities, and their representative

organizations:

(a) Technical support to countries to develop and implement policies, plans, laws

and services that promote and protect the rights of persons with psychosocial disabilities in

line with international human rights standards including the Convention on the Rights of

Persons with Disabilities;

64 United Nations Children’s Fund, The State of the World’s Children, p. 80.

65 See, for example, CRPD/C/GTM/CO/1 and CRPD/C/CZE/CO/1.

66 Eric Rosenthal, “A mandate to end placement of children in institutions and orphanages: the duty of

governments and donors to prevent segregation and torture (2017). Available from

https://www.law.georgetown.edu/academics/centers-institutes/human-rights-institute/our-

work/research/upload/Perspectives-on-Human-Rights-Rosenthal.pdf.

67 Ibid.

(b) Capacity-building among mental health practitioners, persons with

psychosocial disabilities, families, carers and other supporters, civil society, lawyers,

judges, police, social workers and others in order to promote a human rights, legal capacity

and recovery-based approach in the area of mental health in line with the Convention on the

Rights of Persons with Disabilities and other international human rights standards;

(c) Comprehensive technical guidance for countries which identifies, describes

and evaluates existing and emerging community-based services and support that are

responsive to the needs of persons with psychosocial disabilities and are in line with the

Convention on the Rights of Persons with Disabilities;

(d) Support for the creation and strengthening of organizations led by persons

with psychosocial disabilities and the facilitation of dialogue with Governments in order to

facilitate their inclusion and participation in policymaking processes;

(e) Addressing the perpetuation of segregation, which may take the form of

funding new institutions or refurbishing existing facilities, through the termination of

resource allocations to these areas. Funding should be used to help families avoid

placement of children in institutions and to create community-based support systems for

persons with psychosocial disabilities.

VII. Conclusions

62. Users of mental health services, persons with mental health conditions and

persons with psychosocial disabilities are positioned at the confluence of many

vulnerabilities, particularly those arising from poverty, stigma, discrimination, social

isolation and segregation. A comprehensive approach to addressing their human

rights situation requires the protection of autonomy, agency and dignity as well as the

other human rights guaranteed by, inter alia, the Convention on the Rights of Persons

with Disabilities and the International Covenant on Economic, Social and Cultural

Rights. It also requires policy shifts that recognize exclusion and marginalization as

the causes and consequences of poor mental health and take seriously the commitment

in the 2030 Agenda for Sustainable Development to leave no one behind and reach

first those who are furthest behind. Consequently, in meeting their obligation to

achieve the full realization of the rights of persons with mental health conditions,

users of mental health services and persons with psychosocial disabilities, States

should align the policy and legal framework with human rights norms, develop and

implement rights-based strategies and plans, and share technical expertise and other

resources, such as good practice norms.