Modern Violations of the Right to Mental Health

Does the international community respect the right to mental health as it does with other areas of human wellness?

Photo by Tim Mossholder on Unsplash

This article is an essay that I submitted in my International Human Rights class. The essay was submitted as an independent research project, chosen as a topic that I found interesting and relevant to today’s society. This concluded my first year as a student at the University of Washington. The amount of time I had for research was quite small, but I think it displays my initial efforts of (mostly) independent research and information compilation.

As the world began its transition out of the twentieth century, the international community focused on modern and contemporary issues that plagued the quality of human life. After this transition, an issue that persisted from earlier years was mental wellness in the overall field of human health and treatment of mentally disabled persons. The international community and its discussions of human rights understood the importance of this category of health, adjusting preexisting international standards and introducing new treaties to promote psychological well-being. Two decades into the new century, mental health remains an undervalued pillar of a person’s wellness. The softened focus on this category harms the ability of one to satisfy the idea of complete happiness that human rights uphold. Today, many states provide inadequate conditions for health, care and education and disregard the mental well-being of certain groups, such as detainees. This report will examine and investigate human rights violations of mental health in some of the world’s richer countries, particularly between Japan, the United States of America, and the People’s Republic of China.

The Interconnection of Human Rights and Mental Health

The United Nations has an obligation to promote human rights. Through its International Bill of Human Rights, which includes the organization’s charter, the Universal Declaration of Human Rights (UDHR), and two of human rights covenants: the International Covenant on Civil and Political Rights (ICCPR) and International Covenant on Economic, Social and Cultural Rights (ICESCR). In these documents, mental health and disability are integrated with the right to health described in Article 25 of the Universal Declaration:

Everyone has the right to a standard of living adequate for the health and well-being of himself and his family, including food, clothing, housing and medical care and necessary social services, and the right to security in the event of unemployment, sickness, disability, widowhood, old age or other lack of livelihood in circumstances beyond his control.

The International Covenant on Economic, Social and Cultural Rights acts as an enforceable treaty, including some of the rights from the Universal Declaration of Human Rights. Article 12 gives signatory states an obligation to assist the maximization of mental wellness. Its status as a treaty would provide legal backing for a right to mental health within the states who ratify it. Unfortunately, states who do not ratify this Covenant do not give themselves an obligation to protect these rights, such as the United States.

To elaborate rights to health, the Office of the High Commissioner of Human Rights published a Right to Health factsheet, which explains the obligations for its member states, itself, and others. One important obligation that the document highlights is how the right to health in the ICESCR and the UDHR should be interpreted. A person should not expect to current treaties to provide a “right to be healthy,” but instead a right to “enjoy goods, facilities, services and conditions that would be necessary for the realization of healthiness” (5). Lawrence Goston and Lance Gable (2004) expanded upon three core obligations noted in the factsheet: a state should include “respect . . . [as in] not [infringing] upon human rights; [. . .] protection . . . prevent private violations; and [. . .] fulfillment . . . obligation to promote human rights” (22; The Right to Health, 25–27). While states have different capabilities to uphold human rights, these general ideas provide a foundation of what every state should do to promote any the well-being of any person.

The United Nations further elaborated on adequate care for those with mental illnesses in its Principles for the Protections of Persons with Mental Illness, or MI Principles, adopted by the General Assembly and further incorporated into the Convention on the Rights of Persons with Disabilities. While the resolution is not legally binding, it sets guidelines for UN member states and protects basic human dignities in the pursuit of care. According to the resolution, “persons with mental illness” should have basic rights enshrined in human rights declarations and access to morally acceptable medical standards. The more relevant principles, in relation to this document, include access to health, social and medical care that is the least restrictive to the patient, appropriate to the health needs of the patient and the safety of their community.

Current violations of the right to mental health

Today, states have gradually improved conditions for those desiring mental health care. Although health is not directly an obligation of the state, a government should still provide the necessary resources and environment for the individual to seek assistance in the desire to reach the highest attainable standard of mental health. For the United States, China, and Japan, the state has yet to fully accomplish the philosophical — or even legal — obligation of protecting and providing for this area of health. This report will examine access to effective care, detention and conditions of punishment, and other violations of human rights as inadequate conditions for the attainment of the highest possible standard of mental health.

Access to effective care

As stated earlier, one of the obligations of the state is to fulfil: promote the right to health through mechanisms such as care and education. Unfortunately, this access to care is highly disparate for countries like the United States, Japan, China, and their contemporaries.

Mental health care in Asia, while still institutionally developing, has previously been largely inadequate for primary care. For example, Parameshavara Deva (2005) highlights in her article, “Mental Health and Mental Health Care in Asia,” that medical specialists were often ill-equipped for primary care through their insufficient education and low availability for public consumption (119). Hiroto Ito, Richard Frank, Yukiko Nakatani and Yusuke Fukuda (2013) corroborate this statement by noting that “[i]n Japan, there are 2.7 psychiatric beds per 1,000 persons,” with 67 per cent of patients staying in psychiatric inpatient care for more than a year (617–18). With low numbers and long durations of care, Japan has implemented mental health care reforms, focusing on regions to shape how they want care to look like for their citizens. In these reforms were expansion of mental health education and social services, to combat what Deva illustrated earlier. Unfortunately, many local regions lack proper knowledge in developing their mental health plans and fail to respond to the shifting needs of patients (619). While reform is taking place, issues about attitudes remain unresolved. According to Akiko Kanehara, Maki Umeda, and Norito Kawakami (2015), the Japanese people are unfamiliar with mental care, and mental health is often stigmatized (5). Without shifts in how information about care is disseminated, the reforms that Japan undergoes would not change the negative or distrusting sentiment that the Japanese hold, thus leaving no real impact on the mental health of the Japanese public.

In the Western Hemisphere, the United States attempted to reform mental health various times. According to Rebecca Zarett (2016), President John F. Kennedy initiated mental health reforms through a community health center program, introducing “health centers” where psychiatric services were available and expanded upon by successor President Johnson. Unfortunately, the Nixon administration and lack of coordination brought the demise of the program (223–26). The second reforms came with the Carter administration, bringing community health centers back with additional federal and state involvement, but its termination came with the Reagan administration (227–28). Since then, access to formal mental health care, and other areas of health care, has been difficult, even with increased attention on psychological health care by Congress. With the introduction of the Mental Health Parity Acts of 1996 and 2008, insurance companies can limit mental health care benefits or require high co-pays, and employers could limit the amount of care that their employees had access to. Moreover, small businesses are exempt from regulations that require employees to have mental health coverage (228–30). Current mental health care laws do not ease the availability of care, and often leaves mental health coverage to the discretion of the private insurers that most Americans have.

Conditions of detention: in prison and in care

A more specific class of mentally ill persons can be found in prisons and in detention, often living in poor conditions that hinder their psychological health. These offenders may not be granted proper medical care that their free counterparts may have access to. The United States worsens the mental health of its prisoners by exposing them to punishments such as solitary confinement and hostile prison environments. According to Anne Conley (2013), the practice of solitary confinement and isolation is linked to suffering from post-traumatic stress disorder, increased anger, and a decrease in the ability to communicate (420–21). In addition, the persistence of this form of punishment has been ruled unconstitutional and in violation of the Americans with Disabilities Act in several court cases, thus implicating the punishment as internationally and domestically unacceptable for persons with or without mental disability (417). The United States has been skeptical of reforming their prison system, thus leaving the criminally detained unprotected from mental health crises, without proper care, and harmed by state action.

For China, a large and developing economy, mental health reforms have generally been a priority since the late twentieth century. Zhiyuan Guo (2018) highlighted the importance of mental health to the Chinese people as rights violations of the mentally disabled became increasingly visible due to the ratification of the Convention on the Rights of Persons with Disabilities (284, 287). Reforms included changes to hospitalization — specifically restricting involuntary hospitalization — and litigation of the mentally disabled. Yet, an underclass remains underrepresented through these new laws: the suspected and mentally disabled for high-profile legal cases. Criminals who are a part of high-profile cases are often unable to initiate mental examinations to supplement litigation or treatment in detention (307–309). Additionally, current law does not allow patients to have treatment with “lesser restriction,” as demanded by the United Nations in its MI Principles. This means that persons who may be treated for care may be subject to detention, justified by protecting others from threats by those in care (313–314). With these issues, opponents of the state and criminals can be left without treatment, and the mentally disabled punished for ill health, creating a disparity for care and lack of respect for one’s human dignity.

Across the East China Sea, in Japan, the Amnesty International (2009) and Simon Fisherow (2005) highlighted Japan’s allowance of capital punishment, which does not forbid the execution of the mentally handicapped (Fisherow 2005, 456). While the United States also maintains its right to execute convicts, the Japanese government is highly secretive in its executions and has not taken any action toward protecting the mentally disabled from capital punishment, whereas the American Supreme Court ruled against the killing of mentally unfit detainees (467). The significance of a lack of action and continued utilization of capital punishment eliminates not only the ability for the convicted to access proper care, but ultimately decapacitates the person, stripping them of any human rights, essence or livelihood. Like the issues that plague the United States, Fisherow highlights that capital punishment also violates the language of the Japanese Constitution — written by the Americans — which also forbids cruel and unusual punishment while failing to achieve its goal of deterring criminals by eliminating people in detention without full understanding of what they may have done, or why they are in their position (470–76). The continuity of the Japanese, American, and Chinese punitive detention systems erodes any ability for a convict to pursue the philosophical obligation of access to facilities, services, and conditions that advance or protect their mental well-being.

Human rights violations as inadequate mental health conditions

While the state’s obvious obligation is fulfilment, the philosophy and psychology driving mental health links all human rights to amelioration of one’s own mental wellness. Thus, it would be important to highlight the promotion of human rights as an important condition that states partake in to develop high mental health in its public. The acts of the state may reduce the ability for those with mental conditions to live to the “highest attainable standard” of mental wellness. This begs the question: what should we consider when we think about mental health and human rights altogether? The question invokes a discussion of a wide variety of human rights violations as threats to mental health, but I will focus on two issues: climate change and labor conditions for women in the domestic workforce.

A major issue that permeates across all countries and damages mental wellness is climate change. While many smaller countries are heavily detailed, Olúfémi Táíwò and Beba Cibralic (2020) highlighted the forgotten groups of persons heavily impacted by climate change, often by countries such as the United States, Japan, or China and their heavy contributions to the climate crisis. While these countries may not heavily impact all their citizens, they contribute to the migration of over 140 million persons worldwide, with the authors suggesting that the international community should work together to pay the most vulnerable countries for damages done (2–3). Nonetheless, no countries are immune to the harms of climate change — which prioritizes the profits of multinational corporations in what the authors refer to as “climate colonialism,” over helping the largely forgotten “environment migrants” who lose their homes and have no legal protections (4–6). Helen Louise Berry, Kathryn Bowen, and Tord Kjellstrom (2010) analyzed the resulting mental health issues that stem from climate change. The authors found that the weather impacts from climate change are linked to post-traumatic stress disorder and anxiety, with displaced persons experiencing depression and trauma (125–26). With the inadequate availability of care for persons in many countries, including the United States and Japan, many climate victims do not receive care and the issue of mental health is perpetuated (128).

Another major human rights issue that may threaten one’s psyche is the lack of recognition of women’s labor rights. Nisha Varia (2012) detailed the issue of labor rights for domestic workers, often working for richer households in countries like the United States and in Asia for low wages and often in violation of their own contracts, with abuse and without escape (par. 3–4, par. 7). At worst, women trapped in poor working and living conditions may resort to attempting suicide out of depression (under “Indispensable but Visible,” par. 7). Many labor activists on behalf of these women have taken to the streets, attempting to protect domestic workers, and encouraging their countries to implement legal reforms that restrict poor laboring conditions and labor migration that results in the restriction of movement and communication (under “Slow but Steady Path of Reform,” par. 3–5).

Although these rights do not directly translate to a right to health through care, these issues can be ameliorated through states’ enactments of laws that can improve the condition, industries creating guidelines, and a mobilized public defending those who are vulnerable. The issues above link to Gostin and Gable’s earlier analysis of mental health, where the authors note that human rights improve conditions for mental health, and mental health is required for a knowledgeable citizen to exert their given rights (27–29).

Recommendations and Conclusions

Zarett included analyses of countries who adopted mental health reforms. While countries like the United States, Japan, and China have issued new mental health reforms since the end of World War II, they are insufficient compared to others. For example, Australia and South Africa adopted various reforms that integrated mental health care with primary care (212–17). She first recommends integrating mental health care with primary care, like Australia and South Africa (237). Her second recommendation for the United States runs parallel to criticisms of its hybrid private-public insurance system: at the minimum, private insurance must integrate mental health to increase awareness and accessibility for those who require care and minimize barriers to care (238–40). The idea of awareness and integration with care is recommendable to Japan, as one of the primary issues plaguing health care is the inability for the Japanese public to understand when they require care. Increased awareness campaigns and integration into their education, universal health care system and regulatory bodies for labor.

Moving to detention and criminal treatment, Guo concluded her article by providing suggestions for further reforms in China. She notes that scholars and practitioners have called for legislative reforms that allow mental examinations to be initiated by suspects and equality for the ease of access and with examiners participating in any litigation involving mentally disabled persons, as done in the United States (308–12). Additionally, the right to the least restrictive treatment established by the United Nations benefits patients, limit vagueness of care guidelines, and allow individuals who do not pose a threat to society to retain their ability to move (314). As Zarett noted the United States earlier attempted, Guo also noted the importance of community-based treatment, with the community as a place of help that a person may receive (315). Finally, Guo recommends a commitment to the security of mentally disabled persons’ civil rights, including the right to judicial review, free counsel, and control over guardians who monitor the mentally disabled in cases (317–18), which could be applied to the United States’ punitive punishment system and its lack of care for the health of its detainees and conforms with Gostin and Gable’s proposition that mental health depends on the liberty and dignity that human rights mandates.

For the United Nations, there are several jurisdictional limitations that prevent it from being able to fully participate in furthering its goals of a right to mental health and to the overall achievement of human rights and decency. According to its resolution on MI Principles and in its Right to Health factsheet, the United Nations primarily acts as an investigatory and monitoring body through its “treaty bodies” that allow complaints to be filed to a relevant committee (“The Right to Health,” 36). Additionally, a Special Rapporteur on the right to health may raise a complaint with a government representative, but the factsheet does not provide any additional details on what else the rapporteur may do to encourage a state to comply with international treaties or resolutions.

The United Nations can utilize its arm as a reporting and mobilizing organization to further educate individuals, such as those in Japan, about health care and what options are available for care and what provide activists with language that can assist groups in advancing care and wellness for the disabled and vulnerable. Lastly, as an organization with a heavy focus on human rights, the United Nations must collaborate with civil society organizations to ensure that all human rights are respected, to prevent harm against one’s psychological wellness and to promote full respect of human dignity, as it promises to do in its own Charter. While it may not have the greatest impact on changing conditions, it can provide language, research, and international backing for all people, especially for those vulnerable to rights violations, including the mentally disabled.

While mental health has been noted by the United Nations as an important pillar of the human health, states must continue to improve their living conditions and respect for one’s healthiness to ensure that their people and society can thrive. With disparate access to care, threats of detention, and continued violations of human rights, mental health remains to be unprotected around the world, and the right to health remains unsecure. It is important for the public to continue to fight for its own health, and for the state and organizations to support the people in their fight to survive. Mental health is an essential part of one’s ability to live to their highest potential, and it is time for states and communities to take the next step in allowing the members of their societies to thrive by protecting them.

Bibliography

  • Amnesty International. “Japan: Stop the Execution of Mentally Ill Prisoners.” Amnesty International, 2009, amnesty.org/en/press-releases/2009/09/japan-stop-execution-mentally-ill-prisoners-20090910/.
  • Berry, Helen Louise, Kathryn Bowen and Tord Kjellstrom. “Climate Change and Mental Health: A Causal Pathways Framework.” International Journal of Public Health 55, no. 2 (2010): 123–132.
  • Deva, Parameshvara. “Mental Health and Mental Health Care in Asia.” World Psychiatry 1, no. 2 (2002): 118–20.
  • Fisherow, Simon H. “Follow the Leader: Japan Should Formally Abolish the Execution of the Mentally Retarded in the Wake of Atkins v. Virgin.” Pacific Rim Law & Policy Journal 14, no. 2 (2005): 455–484.
  • Gostin, Lawrence O. and Lance Gable, “The Human Rights of Persons with Mental Disabilities: A Global Perspective on the Application of Human Rights Principles to Mental Health.” Maryland Law Review 63, no. 1 (2004): 20–121.
  • Guo, Zhiyuan. “Rights Protection for Persons with Mental Disability in China: An International Human Rights Law Perspective.” Hong Kong Law Journal 48, no. 1 (2018): 283–322.
  • Ito, Hiroto, Richard G. Frank, Yukiko Nakatani, and Yusuke Fukuda. “Mental Health Care Reforms in Asia: The Regional Health Care Strategic Plan: The Growing Impact of Mental Disorders in Japan.” Psychiatric Services 64, no. 7 (2013): 617–19.
  • Kanehara, Akiko, Maki Umeda and Norito Kawakami. “Barriers to Mental Health Care in Japan: Results from the World Mental Health Japan Survey.” Psychiatry and Clinical Neurosciences 69, no. 9 (2015): 523–533.
  • Office of the United Nations High Commissioner for Human Rights. The International Bill of Human Rights, Fact Sheet no. 2, revision 1, ohchr.org/documents/publications/factsheet2rev.1en.pdf.
  • Office of the United Nations High Commissioner for Human Rights. The Right to Health, Fact Sheet no. 31, ohchr.org/documents/publications/factsheet31.pdf.
  • Táíwò, Olúfémi O. and Beba Cibralic. “The Case for Climate Reparations,” 2020.
  • Varia, Nisha. “Cleaning House: The Growing Movement for Domestic Worker’s Rights.” In The Unfinished Revolution: Voices from the Global Fight for Women’s Rights. 2012.
  • Zarett, Rebecca. “To Work and To Love: How International Human Rights Law Can Be Used to Improve Mental Health in the United States.” Fordham International Law Journal 40, no. 1 (2016): 191–246.

Legal Treaties and Resolutions

  • General Assembly of the United Nations. Principles for the Protections of Persons with Mental Disabilities and the Improvement of Mental Health Care (1991).
  • United Nations. “International Covenant on Economic, Social and Cultural Rights.” International Bill of Human Rights.
  • United Nations. “The Universal Declaration on Human Rights.” International Bill of Human Rights.