Mental Health Law in a Global Context
In recent years, the focus of international human rights realisation has moved from the making of international human rights law to its implementation and enforcement at the national level (Murray and Mottershaw 2012). This reflects a growing appreciation that human rights remain aspirational only if they are not given real effect within states. This chapter will therefore consider international and regional human rights standards identified in treaties that apply to persons with mental health issues and their reflection at national level. In particular, it will identify challenges to such implementation. Some specific country examples will be provided but, as many of the issues are common to all or many jurisdictions, a general overview will predominantly be given.
Human Rights Implementation: The Importance of National Legislation and Policy
The World Health Organization’s (WHO) Mental Health Action Plan 2013—2020 (MHAP), in reaffirming good mental health as an integral element of health and wellbeing, identifies as one of its four objectives the strengthening of effective leadership and governance for mental health and as one of six ‘cross-cutting principles and approaches’ that:
J. Stavert (*)
Centre for Mental Health and Incapacity Law, Rights and Policy, Edinburgh Napier University, Edinburgh, UK
© The Author(s) 2017
R.G. White et al. (eds.), The Palgrave Handbook of Sociocultural Perspectives on Global Mental Health, DOI 10.1057/978-1-137-39510-8_16
Mental health strategies, actions and interventions for treatment, prevention and promotion must be compliant with the Convention on the Rights of Persons with Disabilities and other international and regional human rights instruments. (WHO 2013, p. 10)
Mental health law, whether an independent legislative document or integrated into other health and capacity-related laws, should codify the key principles, values and objectives of policy for mental health, for example by establishing legal and oversight mechanisms to promote human rights and the development of accessible health and social services in the community. (WHO 2013, p. 12, para 32)
The MHAP notes that only 36% of people living in low-income countries, as opposed to 92% of those living in high-income countries, are covered by mental health legislation. It accordingly sets global targets that, amongst other things, by 2020, 80% of countries will have developed or updated their policies or plans for mental health and 50% of countries will have developed or updated their mental health laws in line with international and regional human rights instruments (WHO 2013).
These WHO objectives and targets very much reflect the generally held view that the real and effective implementation of international human rights standards that apply to persons with mental health issues reduces the risk of abuse in care and treatment situations, as well as stigma and marginalisation. It also drives forward equality of access to care and treatment and to support and services that are vital for rehabilitation and recovery, for the maintenance of good mental health and for underpinning professional ethical standards. It further reinforces what it identified in its 2005 Resource Book on Mental Health, Human Rights and Legislation which is that for rights to genuinely benefit those the people are meant to protect they must find expression in policy and, most importantly, legislation accompanied by robust enforcement mechanisms (WHO 2005).