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Mental health and the law: What else is needed for particularly vulnerable contexts facing armed conflict and development obstacles?

Published online by Cambridge University Press:  24 November 2022

Sarah Miller
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Abstract

Mental disorders have high prevalence for disability and almost 80% of the global burden occurs in low- and middle-income countries. The impacts of mental health conditions can affect many sectors of society and threaten peace, human rights and development. However, international law jurisprudence has not sufficiently developed to guide mental health governance. This paper reviews the international legal protections for people who experience mental health conditions, including mental disorders and psychosocial disabilities. It focuses on State application of legal instruments in particularly vulnerable contexts, namely, least developed countries and situations of armed conflict. It argues that relying on existing treaties and soft-law instruments from the health and human rights angles is inadequate, and the Convention on the Rights of Persons with Disabilities is not the right fit. New hard- and soft-law instruments are urgently needed to meet positive obligations and safeguard rights in these vulnerable contexts. Some suggestions for the contents of future instruments are made.

Keywords

Mental healthmental disordersarmed conflictleast developed countriesConvention on the Rights of Persons with Disabilitieshumanitarian action
Type
Research Article
Information
International Review of the Red Cross , Volume 105 , Issue 922: Persons with disabilities in armed conflict , April 2023 , pp. 434 - 448
Copyright
Copyright © The Author(s), 2022. Published by Cambridge University Press on behalf of the ICRC.

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Footnotes

*

The author would like to thank Jonathan Liljeblad for his earlier comments on the earlier version of the paper.

The advice, opinions and statements contained in this article are those of the author/s and do not necessarily reflect the views of the ICRC. The ICRC does not necessarily represent or endorse the accuracy or reliability of any advice, opinion, statement or other information provided in this article.

References

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3 Global Burden of Disease Collaborative Network, above note 1.

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6 WHO, “Mental Disorders”, 8 June 2022, available at: www.who.int/news-room/fact-sheets/detail/mental-disorders. Note that, across the sectors, the terms “mental illness” and “mental disorder” are used interchangeably. This paper will use the terminology “mental disorders”, as outlined by the WHO and the American Psychiatric Association, unless referring to the specific language of a legal instrument where, for example, the term “mental illness” is used.

7 UN General Assembly, Transforming our World: The 2030 Agenda for Sustainable Development, General Assembly Resolution 70/1, UN Doc. A/RES/70/1, 21 October 2015.

8 Ibid.

9 Ibid.

10 This paper focuses on the legal instruments. A deeper discussion on economic and resource issues is beyond the scope of this paper.

11 United Nations (UN) Conference on Trade and Development, “UN Recognition of the Least Developed Countries”, 2021, available at: https://unctad.org/topic/least-developed-countries/recognition.

12 Ibid.

13 Ibid.

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17 UN General Assembly, Convention on the Rights of Persons with Disabilities, General Assembly Resolution 61/106, UN Doc. A/RES/61/106, 24 January 2007 (CRPD).

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19 For example, mental health law in Brazil (no. 102216) legislates the government to allocate resources to mental health governance and services that are inclusive.

20 ICRC, Guidelines on Mental Health and Psychosocial Support, 2017, available at: www.icrc.org/en/publication/4311-guidelines-mental-health-and-psychosocial-support.

21 IASC, Guideline: Mental Health and Psychosocial Support in Emergency Settings, 2007, available at: https://interagencystandingcommittee.org/system/files/2020-11/IASC%20Guidelines%20on%20Mental%20Health%20and%20Psychosocial%20Support%20in%20Emergency%20Settings%20%28English%29.pdf.

22 UN General Assembly, above note 15.

23 WHO, above note 16.

24 The Special Rapporteur on the Right to Health can report on which States are implementing relevant laws related to mental health in the context of the UN General Assembly Resolution and others. See UN Office of the High Commissioner of Human Rights (OHCHR), “Special Rapporteur on the Right to Health”, available at: www.ohchr.org/en/special-procedures/sr-health. See also, for reports on mental health and human rights, OHCHR, “Mental Health and Human Rights: OHCHR and the Right to Health”, available at: www.ohchr.org/en/health/mental-health-and-human-rights.

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26 According to the UNMI principles, a “‘[p]atient’ means a person receiving mental health care and includes all persons who are admitted to a mental health facility”. UN General Assembly, above note 15, Annex, definition (f).

27 UN Committee on Economic, Cultural and Social Rights, General Comment No. 5: Persons with Disabilities, UN Doc. E/1995/22, 9 December 1994.

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31 Ibid.

32 UN General Assembly, above note 15; WHO, above note 16.

33 WHO, ICD-11 – International Classification of Diseases, 11th Revision, Geneva, 2019/2021, available at: https://icd.who.int/en; American Psychiatric Association, Diagnostic and Statistical Manual of Mental Disorders, 5th ed., text rev., 2022, available at: https://doi.org/10.1176/appi.books.9780890425787.

34 Jenkins, Rachel et al. , “International Migration of Doctors, and Its Impact on Availability of Psychiatrists in Low and Middle Income Countries”, PLoS One, Vol. 5, No. 2, 2010Google Scholar.

35 Ibid.

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37 Ibid.

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39 UN General Assembly, above note 15; WHO, above note 16.

40 It is beyond the scope of this paper to deepen the discussion on the needs of people with mental health conditions within detention environments, or people deprived of their liberty due to mental disorders with no criminal charge, or considerations of internment, even though this discussion is still much needed in mental health law reform.

41 WHO, Atlas: Psychiatric Education and Training across the World 2005, Geneva, 2005.

42 UN General Assembly, above note 15; WHO, above note 16.

43 WHO, Atlas: Mental Health Resources in the World 2001, Geneva, 2001.

44 Ibid.

45 Mental Disability Rights International, Behind Closed Doors: Human Rights Abuses in the Psychiatric Facilities, Orphanages and Rehabilitation Centers of Turkey, Istanbul, 28 September 2005, p. 32, available at: www.driadvocacy.org/wp-content/uploads/turkey-final-9-26-05.pdf.

46 Drew, Natalie et al. , “Human Rights Violations of People with Mental and Psychosocial Disabilities: An Unresolved Global Crisis”, Lancet, Vol. 378, No. 9803, 2011CrossRefGoogle ScholarPubMed.

47 UN General Assembly, International Covenant on Civil and Political Rights, 16 December 1966, 999 UNTS 171.

48 The UNMI principles have some definition of consent, but competing rights in law can sometimes nullify it (see the section of this paper below under the heading “Disability instruments: Are they the right fit?” where the clash of the right to liberty and the right to treatment is discussed).

49 African Commission on Human and Peoples' Rights, Purohit and Moore v. The Gambia, Communication No. 241/2001, Judgment, 15–29 May 2003.

50 Inter-American Court of Human Rights, Ximenes-Lopes v. Brazil, Series C, No. 149, Judgment, 4 July 2006.

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52 CRPD, above note 17.

53 Ibid.

54 National Human Rights Commission and National Institute of Mental Health and Neurosciences, Mental Health Care and Human Rights, New Delhi, 2008, available at: www.antoniocasella.eu/archipsy/nagaraja_2008.pdf.

55 Committee on the Rights of Persons with Disabilities, General Comment No. 1 (2014), Article 12: Equal Recognition before the Law, UN Doc. CRPD/C/GC/1, 19 May 2014.

56 Ibid., Art. 14.

57 Ibid.

58 Freeman, Melvyn Colin, Kolappa, Kavitha, de Almeida, Jose Miguel Caldas, Kleinman, Arthur, Makhashvili, Nino, Phakathi, Sifiso, Saraceno, Benedetto and Thornicroft, Graham, “Reversing Hard Won Victories in the Name of Human Rights: A Critique of the General Comment on Article 12 of the UN Convention on the Rights of Persons with Disabilities”, Lancet Psychiatry, Vol. 2, No. 9, 2015CrossRefGoogle ScholarPubMed.

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60 Allan, Alfred, “The Past, Present and Future of Mental Health Law: A Therapeutic Jurisprudence Analysis”, Law in Context, Vol. 20, No. 2, 2003Google Scholar.

61 Campbell, Tom D., “Mental Health Law: Institutionalised Discrimination”, Australian & New Zealand Journal of Psychiatry, Vol. 28, No. 4, 1994CrossRefGoogle ScholarPubMed.

62 Consider the use of digital technology and capacity building. Many people living with mental disorders have no access to mental healthcare, but most have access to a mobile phone. Digital technology has been shown to hold potential for improving access to, and quality of, mental healthcare in low- and middle-income countries. For a review, see Naslund, John A., Aschbrenner, Kelly A., Araya, Ricardo, Marsch, Lisa A., Unützer, Jürgen, Patel, Vikram and Bartels, Stephen J., “Digital Technology for Treating and Preventing Mental Disorders in Low-Income and Middle-Income Countries: A Narrative Review of the Literature”, Lancet Psychiatry, Vol. 4, No. 6, 2017CrossRefGoogle ScholarPubMed. This would mean that psychiatric, psychological and social services could be provided by qualified people in places more distant from them, and that mental health law reform could involve legislating how this occurred consistent with the international legal framework. This would address the matter of qualified personnel per capita, perhaps slow the trend of the brain drain, and would also allow the matter of review of decisions.

63 33rd International Conference of the Red Cross and Red Crescent, “Resolution 2: Addressing Mental Health and Psychosocial Needs of People Affected by Armed Conflicts, Natural Disasters and Other Emergencies”, 33IC/19/R2, Geneva, Switzerland, 9–12 December 2019, available at: https://pscentre.org/wp-content/uploads/2020/10/solution.pdf.