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Year : 2015  |  Volume : 18  |  Issue : 7  |  Page : 8-14

A legal "right" to mental health care? Impediments to a global vision of mental health care access

1 Faculty of Humanities, School of Law, University of Manchester, Manchester M13 9PL, UK
2 Programme of Bio and Research Ethics and Medical Law, School of Nursing and Public Health, Nelson R Mandela School of Medicine, College of Health Sciences, University of KwaZulu-Natal, Durban, South Africa

Date of Web Publication1-Dec-2015

Correspondence Address:
N Glover-Thomas
School of Law, University of Manchester, Oxford Road, Manchester, M13 9PL
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Source of Support: None, Conflict of Interest: None

DOI: 10.4103/1119-3077.170822

Rights and Permissions

Mental health law across many jurisdictions provides a legal framework for the compulsory detention and, where appropriate, treatment in hospital of people with mental health problems. Latent within many of these "systems" of mental health provision is the concern that the quality of care people receive does not always meet legal and ethical norms. For many, there remains the very serious recognition that access to mental health care in its entirety remains elusive. International human rights discourse has influenced the shaping of modern mental health laws in many developed countries. In 2008, the Convention on the Rights of Persons with Disabilities (CRPD) entered into force. For many countries, such as South Africa, the CRPD provides a human rights instrument with the scope to establish a worldwide means of bolstering human rights. This paper examines both the UK and the broader African position with regard to the extent redress can be sought if and when an individual does not receive the care and treatment needed. Within this, consideration will be given to one of the paradoxes of mental health care which bedevil mental health systems: How do legal frameworks for detaining and treating people without their consent work when there is no corresponding enforceable right that appropriate treatment or suitable conditions of detention must be provided. The focus of this paper is the question of whether there is indeed a legal "right" to mental health care.

Keywords: Access, Convention on the Rights of Persons with Disabilities, legal redress, mental health care, rights

How to cite this article:
Glover-Thomas N, Chima S C. A legal "right" to mental health care? Impediments to a global vision of mental health care access. Niger J Clin Pract 2015;18, Suppl S1:8-14

How to cite this URL:
Glover-Thomas N, Chima S C. A legal "right" to mental health care? Impediments to a global vision of mental health care access. Niger J Clin Pract [serial online] 2015 [cited 2022 Dec 10];18, Suppl S1:8-14. Available from:

   Introduction Top

The primary objective of statutory mental health laws is to provide a legal framework for the compulsory detention and, where appropriate, treatment in hospital of people with mental health problems.[1] Latent within many of these "systems" of mental health provision is the concern that the quality of care people receive does not always meet legal and ethical norms. Likewise, for many, there remains the very serious recognition that access to mental health care in its entirety remains elusive. Yet, the global legal community is increasingly alive to the world where legal "rights" are becoming the language of choice. Correspondingly, in the mental health care context, patients and their families are also more aware of these "rights" and are prepared to engage in litigation to enforce them. International human rights discourse has influenced the shaping of modern mental health laws in many countries. This is not a new phenomenon. During the 1980s in England and Wales, Gostin's concept of a "new legalism,"[2],[3] which aimed to introduce procedural safeguards into mental health laws and to regulate the control of treatment by psychiatrists, drew heavily on the European Convention on Human Rights (ECHR). This "new legalism" was reflected in the Mental Health Act 1983 (MHA) which contained increased rights for patients to challenge detention and to seek review of involuntary detention. More recently we have seen the emergence of the Convention on the Rights of Persons with Disabilities (CRPD) which entered into force on May 3, 2008.[3] While neither "disability" nor "persons with disabilities" is defined in the CRPD, Article 1 states that the latter term includes "those who have long-term physical, mental, intellectual, or sensory impairments which in interaction with various barriers may hinder their full and effective participation in society on an equal basis with others."[4] The CRPD provides the potential for mental health rights to be reinforced, at least at a symbolic level. However, in practice, the CRPD must be seen in the light of some serious limitations as described below. For countries with bills of rights or, as there is in England and Wales,[5] a legislative framework entrenching human rights within the legislative process, the existence of the CRPD may simply serve to strengthen preexisting human rights structures in relation to mental health. However, for those countries that do not have a dominant human rights culture, the CRPD offers a clear opportunity for signatories to develop more robust and rigorous legal governance frameworks with human rights being at the heart of its execution. Many African countries, such as South Africa and Nigeria, became signatories soon after the CRPD was adopted by the General Assembly by its resolution 61/106 on December 13, 2006. No formal ratification of the treaty by England and Wales took place until the June 8, 2009, and this perhaps reflects the less pivotal role of the CRPD in spearheading mental health patients' rights in England and Wales. Yet, the CRPD provides a mechanism to bolster and reinforce human rights as a central precept in health frameworks around the world. This paper briefly considers the various mechanisms of rights enforcement in the mental health context in England and Wales. Following this, consideration then shifts to the pan-African position and considers the impact of the CRPD (if any) in delivering momentum and opportunities for redress.

   Legal Mechanisms of Redress in England and Wales Top

A central paradox of mental health care which bedevils the mental health system in England and Wales is that the legal framework for detaining and treating people without their consent has no corresponding enforceable right within the MHA 1983 to ensure appropriate treatment or suitable conditions of detention are made available. Hence, we are forced to ask whether there is indeed a legal "right" to mental health care. In the National Service Framework for Mental Health [6] the UK Government has acknowledged the importance of providing preventative and responsive mental health services to meet identified need. However, with no enforceable duty embedding a right to mental health care, the consequence is that access to such services remains variable throughout the UK.[7] Recognition of the importance of identifying and meeting mental health needs is evident both in the clinical and political domain. Data supports the notion that the "right" therapeutic intervention can and does play a significant role in the prognosis for many people with mental health problems.[8] Likewise, there is also political support for harnessing appropriate care and treatment to meet the broader goal of achieving efficiency across the National Health Service (NHS).[9] Legal enforcement of mental health care access may often present the next step for patients when trying to enforce what they believe to be their rights. In England and Wales; as with many other jurisdictions, there are three primary routes: Statutory duties; judicial review; and human rights law.

Use of private law rights

Generally, the use of private and public law remedies will be the primary avenues open to patients who have not been subject to the coercive mechanisms within the mental health/capacity legislation but have sought assistance voluntarily either within a hospital or in the community. Private law rights can be enforced in a number of ways, such as through the tort of false imprisonment where patients are detained when they no longer require confinement; negligence if they are not provided with the care they need, and this results in harm,[10] and breach of statutory duty where legislation imposes clear responsibilities toward meeting identified need though these remain unmet. Such actions, if successful, result in damages for the patient. Statutory obligations and duties also exist to provide a means of enforcement of all health care rights. The NHS Act 2006 provides a primary duty on the Secretary of State for Health to promote in England and Wales a comprehensive health service with the aim of improving the physical and mental health of the people through improved prevention, diagnosis and treatment of illness, and by the provision of effective services to meet this.[11] This duty is one which encompasses a duty to meet all reasonable requirements.[12] But, how reasonable requirements are determined and how these obligations are met is not open to private rights of action.[13] Local authorities are also subject to general statutory obligations under the NHS and Community Care Act 1990[14] to provide or arrange for the provision of community care services if and when patients are deemed in need of such services following a needs assessment.

The statutory duties within the NHS Act 2006 and the NHS and Community Care Act 1990 may not be amenable to private rights of action, but they are open to judicial review and may be within the reach of a Human Rights Act breach. However, judicial review is notoriously difficult to use in order to secure access to services and the applicant often comes up against the problem that statutory duties are rarely absolute in the obligation they confer but are instead duties which need to meet all reasonable requirements. Inevitably, this allows for other factors to be taken into account in the decision-making process, including resource implications, establishing priorities – clinical and financial, as well as evaluating the proven efficacy of the proposed treatment, among other things.[15]

Specific statutory duties also exist under the MHA 1983, as amended by the MHA 2007. For example, Section 117 provides that for patients detained under the legislation a duty is placed on clinical commissioning groups and local authorities to provide aftercare services until patients no longer require them. Such a duty offers obvious benefits such as greater opportunities to access services in the community compared to patients who are not so subject to these statutory duties. From this, concern has been expressed that such differences in treatment between mental health patients with different statuses may be in breach of Article 14 ECHR, in conjunction with Art 5.[16] For example, there is no corresponding duty to provide aftercare services for patients who are granted leave of absence in accordance with Section 17 of the MHA. The costs of providing such services for patients who are subject to aftercare fall with the local authority in which the hospital is situated. This places a significant burden on those authorities in which the larger hospitals are located, which is often in urban areas where public funds are frequently overstretched.[17] When it comes to enforcement of rights to access services, the distinction that is often drawn between competing service needs is driven by pragmatism and the need to delegate financial responsibility.[18] Money and associated resources are a constant driver in the decision-making process; the courts are reticent to intervene too much in the enforcement of such rights given the polycentric nature [19] of resources and largely maintain a strictly "hands-off" approach.

Use of public law rights

Challenging access decisions in a landscape of limited resources offers its own set of problems. While we have a judicial review to challenge inappropriate use of discretion or unlawful acts, experience of using judicial review as a means of accessing medical care does not have an encouraging history for patients in England and Wales. Here, the claim is premised on the fact that a public authority (such as the NHS or a local authority providing community-based care) has acted in breach of its responsibilities laid down by statute, or more commonly, has exercised the discretion conferred by legislation unreasonably. This latter claim - the irrationality ground of judicial review - has traditionally set a very high threshold for patients. For patients to claim that the decision concerning access was irrational or unreasonable, patients have to demonstrate that the decision taken was one that no reasonable decision-maker could have made.[20] Similar to the question of private law rights in relation to resource allocation and access to medical services, the courts in England and Wales have taken a decidedly "hands-off" approach,[21] and this line of thinking for judicial review does not offer an optimistic future for patients seeking to challenge the denial of access to mental health services.

   European Legal Responses Top

European Convention on Human Rights

We have also seen that, in England and Wales, the impact of the Human Rights Act 1998 on mental health law development has gradually increased. The European Court of Human Rights has acknowledged that the provisions of the ECHR may, in certain circumstances, generate a positive obligation to provide care to patients, and this has been seen in a number of different situations.

Where failure to provide care poses a risk to life

The right to life provision under Article 2 has been interpreted to mean that states have a positive obligation "to take measures to protect an individual whose life is at risk from the criminal acts of another individual."[22] It can be expected that such provisions could offer assistance to those patients with mental health problems who pose a serious risk of harm to self. Failure of authorities to protect a vulnerable person from suicide could also give rise to an Article 2 violation.[23] The emphasis on the recognition of this obligation comes from acknowledging the vulnerability of the person in custody and the corresponding duty of the authorities to protect them. Where there is evidence of failure to monitor an individual's mental health needs where it was known or ought to have been known that they were at risk of suicide/homicide, an Article 2 violation may occur.[24] The only question that has to be determined in such circumstances is whether the failure to act was reasonable in the circumstances.[25]

For patients who experience negligent care, a different approach has been taken. On the inadequate provision of medical care, Powell v UK [26] found that where the state concerned has made adequate provision for securing high professional standards among its health care employees, errors of judgment, or negligent coordination of care will not in themselves be sufficient to require the state to be called to account. If a safe system of work is in place but there is negligent conduct on the part of individual personnel, a violation of Article 2 will not be found. Domestic authorities in England and Wales [27] have interpreted this to indicate, obiter, that an Article 2 violation would only be upheld in a hospital setting, where the negligence in question could be said to amount, at the very least, to "gross negligence."

Where failure leads to inhuman or degrading treatment

What of the situation where the neglect of a patient's health has the potential to constitute a violation because of inhuman or degrading treatment under Article 3? Article 3 does not require a positive act on the part of the state,[28] but the ill-treatment must attain a minimum level of severity if it is to fall within the article's scope. The assessment of this minimum is relative and depends on all the circumstances of the case, such as the duration of the treatment, its physical and/or mental effects and, in some cases, the sex, age, and state of health of the victim. Hence, this places a responsibility on the relevant state to ensure that a person is detained under conditions which are compatible with respect for human dignity the manner and method of the execution of the measure must not unnecessarily distress the individual, or create hardship which exceeds the unavoidable level of suffering inherent in detention.[29]

Where failure impacts on family life/home life

Within the mental health law arena, other article breaches have been raised such as in relation to how failures in care provision have impacted on family and home life under Article 8.[30] The problem with Article 8 obligations is that this comprises a positive obligation to provide medical care since it primarily protects negative rights. Even if the failure to provide care is found to constitute "interference" with the right to respect for private life, it is still open to the state to establish that the failure to provide care was necessary to meet one of the objectives contained in Article 8 paragraph 2. Two objectives likely to be invoked by care providers are "the economic well-being of the country," and "the rights and freedoms of others." Again, financial constraints are pertinent to determining whether the failure to provide services constitutes an unjustified interference with Article 8.

   Reflections on the Rights to Mental Health Care in South Africa Top

When South Africa became a signatory of the CRPD and its optional protocol on March 30, 2007, the South African Government aligned itself with an international mandate to achieve an innovative and radically new legal framework for people with disabilities. The CRPD requires disability and impairment associated with mental ill health to be fully integrated into the global disability movement. It now provides the platform on which mental health issues can be considered through the lens of human rights scholarship and law. As the CRPD conceptualizes mental health conditions as "disabilities," its ratification has also introduced some profound implications in terms of setting and meeting new standards of care and treatment within psychiatry.[31],[32] Moreover, this pledge to meet these standards has ratcheted up responsibility for meeting these standards at the implementation stage.

However, the CRPD as, indeed, with any other national or international legal treaty is only as good as its application. There must be widespread knowledge of its existence, as well as South Africa's commitment to enable individuals to use it as a tool to reinforce the care and treatment duties providers must meet, and even then there is limited scope for rights enforcement. Only then will the CRPD be able to offer the protection it seeks to provide. Following ratification of the CRPD, does South Africa meet its obligations or does there remain a gap between what is and what should be done in terms of provision? The current data suggests that the provision of mental health services and the rights of access to these services remain illusory for many with provision being inadequate, under-developed, and under-resourced.[33] Likewise, the problems which beset mental health systems on the global stage, such as patient isolation, stigma, and marginalization, have proved difficult to overcome in South Africa.[34] The data suggests that there is a higher prevalence of mental disorder in South Africa than in many middle-income countries. For example, nearly one in three will suffer from mental disorder in his or her lifetime in South Africa as compared to the UK.[35] Where a higher prevalence than many low- and middle-income countries.

The regulatory framework in South Africa has been reformed under the Mental Health Care Act 2002 (MHCA) with dedicated attention given to human rights. However, to ensure the MHCA is effectively implemented, better resourcing and service provision is needed.[36] This problem is prevalent worldwide, but with the global burden of disease rising, and mental health and behavioral disorders, in particular, accounting for an increasing proportion of this, greater emphasis on facilitation of legislative norms is required.[37] The evidence suggests that mental ill health is a leading cause of suffering, economic loss and social problems, and accounts for over 15% of the disease burden in developed countries. In the EU, at least 83 million people (27%) suffer from mental health problems (16.7 million in the UK), with depression being the most common (8–12% of the adult population).[38] At a global level, mental and neurological disorders are responsible for approximately 14% of the global burden of disease, while over 30% of disability-adjusted life years are attributable to these disorders, and it is expected that this will increase.[39] Moreover, we know that mental disorders are commonly comorbid [40] with physical disorders such as heart disease, cancer, and metabolic conditions.[41]

The World Health Organisation's Atlas Project in 2005[42] confirmed that mental health provision is in a dire position. The data which emerged from this study indicates evidence of "widespread, systematic, and long-term neglect of resources for mental health care in low-income and middle-income countries"[43] with only 60% of countries worldwide having appropriate facilities to enable proper training of primary health workers in mental health care.[44] The data paints a picture of severe shortage within Africa and Asia [45] in relation to the existence of hospital facilities for those patients that do need to be hospitalized for their mental health condition.[46]

A mental health gap?

A gap between identified mental health needs and actual service provision exists. It exists across the UK, in South Africa and indeed, every other country in the world. The failure to provide for recognized need is emphatically a human rights concern, and although these concerns have been brought to the attention of the European Court of Human Rights, there is still a significant judicial reticence to adopt a hard-line interventionist position in relation to health care access claims. However, the CRPD offers some hope for the future. It sets out a framework for a rights-based approach to disability and in so doing calls for changes that go beyond the quality of care to include both legal and service reforms. Indeed, it goes further and lays the foundation for the development of policies which tackle head on discriminatory practices that have a direct effect on the health and well-being of those with disabilities.[47] This relies on an operational strategy to enable the guiding principles within the CRPD to have a transformative effect. For those states that have ratified the CRPD, there is an expectation that new legislation will be anti-discriminatory in nature [47] and will place sufficient focus on the rights of patients and their wishes. In order to achieve this, adequate governance frameworks need to be in place which includes review processes which empower patients to seek examination of their individual cases. In South Africa, the introduction of Mental Health Review Boards under the MHCA provides this as long as it is adequately resourced, and currently the data suggests that this may not be the case.[48] Beyond the specific focus of the legislation, the CRPD will only have a transformative effect if greater efforts are made to ensure stigma and broader inequalities are tackled head-on. It is recognized that mental health provision is often variable and often at the bottom of the funding planning process, yet for the majority of individuals with mental health problems, the fundamental problems they experience go beyond the "medico-legal" model and exist within their communities. Inequalities of treatment, discriminatory behaviors, and limited access to necessary services all of these exist in respect of the mentally disordered in allsocial, economic, and political facets of the society they live within. Greater emphasis is needed to improve the levels of education about mental ill health; more is needed regarding the inclusion of all groups within society. Moreover, fundamentally, greater emphasis needs to be placed on achieving parity within health systems. In England and Wales, the cross-government mental health outcomes strategy no health without mental health [49] published in 2011 (further reinforced by the Health and Social Care Act 2012) recognizes that much more is needed to reinforce the notion of parity [50] within the health care system, so that physical and mental health is treated equally in terms of funding and service provision. This is a significant step forward. Mental health conditions are now to be recognized as a clear equality issue, and the NHS Equality Delivery System will be primed to help those providing NHS services to respond properly to it. Perhaps of greatest importance is the Government's recognition in the Mental Health Implementation Framework that achieving parity between physical and mental health is an absolute goal,[51] where more still needs to be done to ensure all organizations "meet their equality and inequality obligations in relation to mental health."[52] Of course, clearly making improvements for mental health provision in this respect is dependent on good implementation. Where there is a failure to achieve this or failure to ensure appropriate budgeting for mental health needs,[53] ultimately, signatories to the CRPD must be held to account in terms of the domestic planning process.[54]

   Is There a Legal "right" to Mental Health Care? Top

Although many countries support the move toward nondiscriminatory, human rights focused mental health legislation, there is little leverage without adequate practical support. The gap between identified need and provision is considerable in many African countries even where progressive legislative frameworks are in place. Poverty, income inequality, homelessness, exclusion, discrimination based on ethnicity, race, and gender, social exclusion, stigma, and abuse all impact on the ability of those in need to access the necessary services. This gap exists elsewhere and is a global challenge.

We must return to the initial question - is there a legal "right" to mental health care? The use of the word "right" has resulted in patients bringing legal challenges when they have not received the care and treatment they believe they have a "right" to. So far, the UK position has broadly been consistent – judicial intervention in enforcing these rights has been restrained. This has similarly been seen in the judgments of the European Court. Restricted resources will always be a challenge, so alternative responses may offer greater success than regarding the legal system as a means of rights enforcement. Communities need to be more accommodating and willing to support its members with mental health problems. If support could be found from within as opposed to the need to "force" providers to meet all identified need, this might offer the social cushion that so far both the legal and medical frameworks have failed to provide. This relies on softer "social" measures to reinforce changing attitudes toward mental ill health. Better education and nudging may be a way forward.[55] Educational drives have shown to be effective in many areas of health information when they have been aggressively undertaken, such as the AIDS awareness educational program in the UK in the 1990s. Likewise, nudge theory, whereby positive reinforcement is used to achieve nonforced compliance within societies, may also offer a means of reinforcing positive perceptions of mental illness. Despite the view that legal intervention offers patients the necessary avenue to seek redress and reparation, resort to this system will have a limited impact on solving these challenges or achieving a global vision of mental health care access.

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Conflicts of interest

There are no conflicts of interest.

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