Already in the early stages of the COVID-19 pandemic, the World Health Organisation (WHO) was warning that substantial investment in mental health services was necessary to avert a mental health crisis. The evidence for the devastating impact of the pandemic on mental health is now overwhelming. The reasons for this are clear: the pandemic caused fear and anxiety for everyone, and many of us had to face illness, grief over lost family members, insecurity and loss of income. In addition to this extraordinary burden placed on our mental health, we were cut off from our usual support networks, friends and families, while the pandemic was also disrupting the delivery of existing mental health services themselves.
Not everyone has been affected in the same way by the pandemic, and mental health is no exception here. Among others, the mental health of certain demographics such as older persons, children and adolescents, and women, as well as that of disadvantaged groups such as persons with disabilities, LGBTI people and migrants has been affected more compared to the general population. For example, in a statement I co-signed with the UN Independent Expert on Sexual Orientation and Gender Identity and numerous other human rights experts, we alerted states to increasing mental health problems for LGBTI people, in particular youth, notably as a result of having to shelter with family members who were unsupportive of or hostile towards their LGBTI identity.
I recently published an Issue Paper entitled “Protecting the right to health through inclusive and resilient health care for all” in which I set out twelve recommendations. These include universal health coverage (of which mental health services are an essential component), more equality and dignity for patients, more participation and empowerment in relevant decision-making, the promotion of transparency and accountability throughout policy cycles, and better health communication policies. Since the right to health is defined as the right to the highest attainable standard of physical and mental health, these recommendations naturally apply to mental health care as well. Some recommendations, however, are more specific to mental health, such as those related to the need to ensure that mental health services are accessible to all when needed, of appropriate quality and affordable, to transition from an institutional to a community-based model and to eliminate coercive practices in mental health services.
Mental health systems: a longstanding source of human rights violations
While the additional strain generated by the pandemic is new, the mental health situation and lack of services has been a neglected human rights crisis in Europe for a long time. Despite the suffering and economic burden caused by mental health problems, mental health spending in the WHO European region was estimated to amount to only 1% of total health expenditure in 2019, and the majority of that expenditure was channelled towards mental health hospitals. In a very important report in 2017, the UN Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health was already raising the alarm over the fact that “the arbitrary division of physical and mental health and the subsequent isolation and abandonment of mental health has contributed to an untenable situation of unmet needs and human rights violations”.
In my Issue Paper on health, I called on governments to pay attention to the essential social determinants of health in order to rebuild more inclusive and resilient health care systems, notably social protection, living conditions, working environment and education. These are all the more relevant for mental health, since mental well-being is determined not only by individual attributes but also by the social environment which can prevent, cause or aggravate mental health problems. In recent decades, a human rights-based, holistic and psychosocial understanding of mental health has been emerging, but this approach still faces a lot of resistance in many of our member states, where a reductionist, biomedical paradigm remains prevalent. Further problems identified in the aforementioned report of the Special Rapporteur are power asymmetries in mental health policies and services, and the biased use of evidence in mental health. In combination, these reinforce a vicious cycle of stigmatisation, disempowerment, social exclusion and coercion.
In order to rise to the challenge posed by the pandemic for mental health services, it is essential to reform them, as well as relevant laws and policies, urgently and from the ground up. As with health policy generally, the imperative to prevent human rights violations must be the guiding principle behind these reforms.
The human rights of persons with mental health problems or psychosocial disabilities (i.e. disabilities arising from the interaction between a person with a mental health condition and their environment) are routinely violated in two significant ways. Firstly, their human rights continue to be violated by mental health services themselves, notably because they often display a tendency towards paternalism, coercion and institutionalisation. Secondly, affected patients may not have access to the care they need to achieve the highest attainable standard of health. In this connection, we should bear in mind that this right depends on the realisation of many other human rights, notably those enshrined in the UN Convention on the Rights of Persons with Disabilities (CRPD).
Coercion: a persistent source of human rights violations
In a recent report on its visit to Bulgaria, the European Committee for the Prevention of Torture (CPT) documented how patients in psychiatric hospitals were subjected to widespread and systematic ill-treatment at the hands of staff: they were slapped, pushed, punched, kicked, beaten with sticks, chained to beds and medicated without consent. While this example is particularly horrific, we should not forget that similar institutions, and the underlying approach taking coercion for granted, are still common in the majority of our member states, as demonstrated, for example, in recent exposés on the situation of psychiatric hospitals in Malta. My own Office has addressed human rights violations caused by such institutions in a large number of member states, including in an intervention before the European Court of Human Rights.
Why is this still accepted in 2021? Historically, fear, rejection and isolation have been our default response to persons with mental health problems. The ingrained fear and stigma of mental illness is still very strong, fuelling prejudice and the narrative that persons with mental health problems pose a danger to themselves and to society, against all available statistical evidence to the contrary – persons with mental health problems are in fact far more likely to be victims of violence than perpetrators. Mental health laws that normalise closed institutions and forced treatment confirm and reinforce these prejudices. Furthermore, while there is ample evidence that coercive treatment may lead to substantial trauma and that fear of coercion can actually deter persons experiencing mental ill-health from seeking help, there appears to be little scientific evidence to substantiate the supposed benefits of forced treatment.
In 2019, the Parliamentary Assembly of the Council of Europe unanimously adopted a groundbreaking Resolution calling on member states to end coercion in mental health, pointing to the fact that the number of persons subjected to coercion was still growing in Europe. It noted that so-called safeguards to prevent excessive use of coercion had not reduced but, on the contrary, seemed to have increased coercion, for example in France following a reform in 2011: what is defined as last resort in legislation often becomes the default approach, especially when resources are scarce. The corresponding report presented to the Parliamentary Assembly also reflects my observations concerning the marked differences in the level of involuntary placements between countries, but also between different regions of the same country or even from one hospital to another, suggesting that the main cause of coercion is not the inherent dangerousness of persons or therapeutic necessity, but an institutional culture that confines more out of prejudice or habit. This interpretation is supported by research.
In my address to the Parliamentary Assembly prior to the adoption of this Resolution, I drew attention to how my own country work allowed me to see first-hand the vicious circles caused by a mental health approach based on coercion, which perpetuates the isolation of the very persons who need the support of their community the most, fuelling more stigma and irrational fear. The lack of community-based, voluntary mental health services also results in even more coercion and deprivation of liberty.
I have also shared my observation that safeguards supposed to protect persons from arbitrariness and ill-treatment are reduced to mere formalities because they operate in a legal system where persons with mental health problems do not even have a chance to have their voices heard, owing to the profound power asymmetry between the patient and physician in most mental health settings. Judges almost invariably follow the opinion of the psychiatrist over the wishes of the patient, when the law provides for such a possibility. At their worst, such safeguards do little more than ease the conscience of those who are in fact taking part in human rights violations.
My position on coercion in psychiatry and the Resolution of the Parliamentary Assembly should be seen against the background of a growing consensus within the international community to consider involuntary measures without the informed consent of persons with mental health problems as human rights violations, or even as possibly amounting to torture. This is in large part due to the paradigm shift operated by the CRPD when it entered into force in 2008, and the efforts of civil society, in particular of persons with lived experience of mental health problems and psychosocial disabilities, to have their say in policy-making. As a result, a growing number of relevant international and national human rights bodies are now calling for an end to coercion and its replacement by community-based treatment options based on consent. This approach is slowly making headway in the medical community as well, as can be seen in the growing body of WHO guidance to states to reduce coercion, establish community-based alternatives and integrate mental health into primary care. Similarly, the World Psychiatric Association issued a position statement on the need to reduce coercion in October 2020.
This revolution is rooted in the CRPD and it would be a mistake to cling to older Council of Europe standards that place the bar lower. In this context, it is regrettable that work is still continuing in the Council of Europe on a draft Additional Protocol to the Oviedo Convention that reflects an outdated, biomedicine-driven approach reducing mental health to mental disorders and empowering physicians to forcibly confine and treat persons without consent, with virtually no limit being set on the duration of this placement or the treatments to be used. The vagueness of the definitions in this text and the trust in the judgement of a single physician, which appears misplaced given the human rights violations we are still witnessing on a daily basis, could easily give the impression of sanctioning even the worst kinds of human rights abuses in psychiatry. The opposition of the Parliamentary Assembly, several UN bodies including the treaty body of the CRPD, the unanimous protests of representative organisations of persons with psychosocial disabilities and my own opposition to this initiative have so far been ignored.
I call on member states to stop supporting such initiatives at international level, which may create confusion and become a stumbling block to necessary progress in advancing the human rights agenda when it comes to mental health. If new international standards do not nurture the paradigm shift from institutional to community-based care, and from coercive to consent-based care, they should at least do no harm by muddying the waters.
The way forward
A number of member states have started reviewing their mental health legislation in the light of these considerations, for example in Ireland and in the UK. What I found particularly positive with these two examples is the commitment to engage with civil society, and in particular users and providers of mental health services. Initiatives by representative organisations of persons with psychosocial disabilities to promote more inclusive policy-making, for example in the ongoing trialogue in Germany, are also to be commended. The active participation of persons with lived experience of using mental health services in defining policies, in particular, is a sine qua non condition of successful mental health reform, as their exclusion from the debate so far has allowed human rights violations to continue unchecked for as long as they have. This is also a general obligation under Article 4(3) of the CRPD.
The realisation of the right to full enjoyment of the highest attainable standard of mental health depends on the realisation of many other crucial human rights. In particular, member states need to conduct the necessary reforms of their mental health legislation in parallel with reforms in two crucial areas affecting core rights enshrined in the CRPD: legal capacity (Article 12) and the right to live independently and be included in the community (Article 19). Mental health care that truly respects the autonomy, dignity, will and preferences of service users is simply not possible so long as legal systems continue to tolerate substituted decision-making or segregation in institutions. Ongoing legal capacity reforms in our member states are very important in this respect. States must ensure that persons with mental health problems or psychosocial disabilities, including children, never lose their say on decisions involving their health, if necessary by providing the appropriate supports for decision-making, in order to ensure that mental health care is provided on the basis of free and informed consent. For as long as involuntary measures remain a reality, it is also crucial to ensure full access to justice to challenge any decision, an area where there are also some good practices, for example in the Netherlands.
As for institutions, I refer to the longstanding recommendations of my Office to put an end to their use, starting with immediate moratoria on future placements. Experience shows the crucial importance of closing large psychiatric hospitals where persons are involuntarily placed. To take one example, Italy was a pioneer in this respect by initiating a process of gradual closure of psychiatric hospitals from 1978, replacing them with alternatives closer to the community. While Italy is also facing a number of problems regarding the use of coercive measures in psychiatric establishments that still need to be addressed, it should be thought-provoking that the rate of involuntary placements in Italy today appear to be lower, by orders of magnitude, than in neighbouring states.
Reduction of coercive practices in psychiatric services, including the use of restraints and forced medication, and their progressive elimination should be another immediate priority. As mentioned above, the institutional culture and habits largely determine the prevalence of such measures. For example, my predecessor recommended to Denmark in 2013 that recourse to coercion in psychiatry be drastically reduced, and I was happy to note that a psychiatric centre in Ballerup had managed to put an end to the use of restraints as a first in the country, by training staff on conflict management and increasing physical activity for residents, without augmenting medication, for the benefit of both patients and staff.
The ultimate goal must be to replace institutions and a coercion-based mental health system by a recovery- and community-based model, which promotes social inclusion and offers a range of rights-based treatments and psychosocial support options. These can take many different forms and many models exist including, for example, support provided by peers or a support network, patient advocates/personal ombudspersons, advanced planning, community crisis resolution or open dialogue. It is also crucial to deconstruct the lingering stigma associated with seeking help for mental health problems, whether this is done in the school environment, at the workplace or in primary healthcare centres, through targeted awareness-raising and outreach. Only then can mental health services, as an integral part of primary care, be universally available to individuals throughout the entire life cycle. Once more, true involvement of persons with lived experience in the design, implementation, delivery and monitoring of these services is crucial.
Member states can take inspiration from several compilations of promising practices at the European and global levels, as well as ongoing projects and research conducted into community-based delivery of recovery-oriented mental health services, such as the RECOVER-E project running in Croatia, Montenegro, North Macedonia, Bulgaria and Romania. I am also conscious of the potential impact of new technologies on mental health care, which represent both opportunities and serious risks for human rights, and I refer to my general recommendations concerning human rights and artificial intelligence.
In this context, I encourage states to pay special attention to the mental health of children and adolescents, not least because of the extraordinary strain that the COVID-19 pandemic has placed on them. Lockdown measures and prolonged school closures have deprived them, more than other groups, of their usual routines, while exposing them to isolation and an increase in violence and abuse. We should not forget that childhood and adolescence are crucial periods for life-long mental health. Mental ill-health experienced in the formative years of one’s life, for example as a result of adversities or trauma, affects brain development and the ability to form healthy relationships and life skills. Children and adolescents therefore need non-bureaucratic access to mental health support, as early as necessary and as least invasively as possible, without any shame attached. Institutionalisation of children, on the other hand, has a devastating impact on childhood development. We also need to bear in mind that suicide was one of the leading causes of death among adolescents in the European region even before the pandemic, which makes recent evidence of a marked increase in anxiety levels, depression and self-harm among young people particularly alarming. In order to prevent future burdens on mental health systems, it is crucial to expand our capacities for early psychosocial interventions for children by building on innovative and community-based child mental health services, rather than pursuing the worrying trend of ever-increasing use of psychotropic medication on children.
Mental health reform is an extremely challenging task for all our member states, given the complexity of the issues and the huge gap between agreed international standards and the reality on the ground. This, however, makes it all the more urgent. Let us turn the current challenge of the pandemic into an opportunity, by thoroughly transforming mental health services in Europe, with human rights as our guide and compass.