104 Pages Posted: 24 Nov 2009
Date Written: May 19, 2009
This article examines the human rights of persons with mental disabilities and the application and development of these rights by the various international and regional systems that have been established to protect human rights. First, this article briefly examines three important relationships between mental health and human rights: 1) coercive mental health policies infringe on human rights; 2) invasions of human rights harm mental health; and 3) positive promotion of mental health and human rights has mutually reinforcing and synergistic results. Second, this article reviews sources of law within the United Nations system of human rights protection. Third, this article discusses regional human rights systems in Europe, Africa, and the Americas. These regional systems operate under human rights instruments distinct from the United Nations system and have achieved substantial progress in the development of human rights law relevant to persons with mental disabilities.
Fourth, this article examines the application of civil and political rights to mental health by international and regional systems of human rights protection. The analysis focuses in depth on the most highly developed regional system of human rights protection — the European Convention of Human Rights (ECHR) within the Council of Europe — but also explores the intersection of human rights and mental health under the African and Inter-American regional systems. This part of the article demonstrates the vast potential of human rights law in three important areas of mental health policy: (1) the right to fundamental fairness in compulsory admission and subsequent detention in mental institutions — e.g., legal representation, a hearing, and use of independent experts; (2) the right to humane and dignified conditions of confinement — e.g., avoidance of neglectful or abusive conditions in mental hospitals and harmful or intrusive forms of medical treatment; and (3) protection of rights of citizenship — e.g., privacy, marriage, franchise, and association.
Finally, the article discusses the application of social, economic, and cultural rights to mental health, particularly with respect to affirmative entitlements to mental health services. While the basis for recognizing economic, social, and cultural mental health rights exists in international and regional instruments, institutions at the international, regional, and domestic levels have been reluctant to pursue, define, or enforce such positive rights. The right to health, however, has undergone a significant evolution in recent years through the adoption of several significant instruments and reports at the international and regional levels. Concurrently, an expanding body of scholarly writing has examined the scope and application of the right to health. The idea of affirmative mental health rights can fundamentally advance the dignity and welfare of persons with mental disabilities. International human rights law, of course, leaves domestic governments with a wide range of discretion in relation to each of these rights and freedoms. Nevertheless, this body of international law opens each of these areas to serious external scrutiny and may provoke domestic governments to recognize and respect these rights and freedoms.
Suggested Citation: Suggested Citation
Gostin, Lawrence O. and Gable, Lance, The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health (May 19, 2009). Maryland Law Review, Vol. 63, No. 20, 2004; Wayne State University Law School Research Paper No. 08-31. Available at SSRN: https://ssrn.com/abstract=1435443
By Joseph Raz
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