Understanding human rights in the context of mental health
Human beings need each other. In reality, we exist because we have been welcomed and acknowledged. “Feeling named is an expression of the fundamental situation: out in the open are the others, who give you a name and who will call you by that name for life. Being a beginning goes hand in hand with the fact that the first word comes from the other” (Esquirol, 2021). Human beings are political animals ( zoon politikon , as Aristotle called them), who can only fully realize themselves in society, bound to the need to live with other people. Living together means, and in today's pluralistic societies even more so, respecting each other in our differences regarding cultural origin, ideologies, or religious expression, and ultimately, in our diverse ways of understanding the world.
But coexistence is not without conflict. Beyond the differences that deserve everyone's respect, there are also the various interests that drive entire social groups or individuals. That is why it is so important to have shared references, values, or norms that are the same for everyone. These reference values are often grouped under the name of "civic ethics" (Cortina, 1994), and their core is human rights. (1)
First and second generation human rights: social justice
It was from the 17th century onward that the idea that social order is not predetermined by nature, but rather emanates from individuals, became firmly established. John Locke, considered the principal historical figure of liberalism, maintained that all men were fundamentally equal and free, and therefore subjects of rights which, contrary to Hobbes's assertion, they could not renounce. The task of the liberal state was thus to protect the life, property, and individual liberties of its citizens when these were threatened or violated.
In the first half of the 19th century, the production system changed radically thanks to the Industrial Revolution. Fleeing hunger, large segments of the rural population moved to the cities, encountering living conditions that were sometimes even more extreme than those they had come from.
Workers' struggles to improve living conditions continued across much of the world throughout the second half of the 19th and the first half of the 20th centuries. Formal individual freedoms, devoid of substance, were no longer sufficient: dignity also meant a "dignified life." The new state had to move beyond the initial civil rights charter to create a new system of fundamental rights that included economic, social, and cultural rights, thus giving meaning to the true equality of all individuals. This second charter of rights culminated in the adoption of the Universal Declaration of Human Rights by the United Nations General Assembly in Paris on December 10, 1948.
As a result of the economic crisis of the 1970s and the subsequent awareness of the limitations of the welfare state, the debate on what constituted a just society culminated in the publication of John Rawls's A Theory of Justice (Rawls, 1978). (2) According to this view, the protection of health or the right to a basic education, for example, as primary goods, are part of the fundamental rights that guarantee social justice. As is well known, the recognition or even the concrete regulation of these and other social rights, such as access to housing or employment, varies enormously between countries, even within the same capitalist economic system.
Human dignity and new rights
The recognition of these rights—their translation into norms and laws—and their material development in society, give concrete form to the unconditional respect for the person and their intrinsic value, dignity (the priceless value, according to Kant). Therefore, these rights exist simply by virtue of being born, regardless of our economic status, sexual orientation, religious affiliation, skin color, or the presence of a disability.
Human beings are not born with a predetermined existence. There is very little written in their genome that fatally determines their destiny, in health and in sickness. On the contrary, each person must build their own life project, based on their own choices and moral decisions (what is good, what is right).
We call it freedom or autonomy, and it is this capacity that makes each human being unique, special, and distinct, and at the same time, worthy and deserving of recognition and respect. In other words, we all need to be recognized and respected as free people with full rights.
Human rights have an ethical dimension (they express fundamental values related to dignity), a political dimension (they qualify societies that respect civic ethics and recognize the freedom of their individuals and their social participation), and a legal dimension (they generate positive law - the laws - so that they are fulfilled or the legitimacy to defend them, even if they are not recognized by the state).
But these rights are not some kind of sacred and immutable book. They are modified, or rather expanded, by processes of social change. Today, in addition to the aforementioned rights—known as first- and second-generation rights—others are added that seek guarantees for humanity as a whole, such as the right to peace, to economic and social development, to the self-determination of peoples, and to a sustainable environment treated as the common heritage of humanity. We also consider new rights those related to the digital revolution, control over one's own body and its genetic makeup, and rights related to animal welfare.
Mental health, rights and legislation
There is no doubt that people with mental health problems or intellectual disabilities are still subjected to strong discrimination throughout the world, varying according to the degree of democratic development of each country.
Despite the progress made in many countries, prejudice, violence, social exclusion and segregation, abuses in treatment or attacks on their ability to decide, are still far too common.
Countless recommendations from the Council of Europe, its Committee of Ministers, or the European Parliamentary Assembly are aimed at improving the protection of the dignity, human rights, and fundamental freedoms of people with mental disorders, especially those subject to involuntary measures.
The Council of Europe Convention for the Protection of Human Rights and Dignity of the Human Being with regard to the Application of Biology and Medicine (Oviedo Convention), in force in Spain since 1 January 2000, is considered the first legally binding instrument that incorporates the principle of informed consent and its revocability, equal access to medical treatment, advance directives, the requirement of the opinion of minors and persons declared incompetent, and the establishment of protection standards relating to medical care and research.
In Europe, the issue of the rights of people with mental health problems is an integral part of strategies for improving national mental health plans. This is demonstrated by the WHO Ministerial Conference on Mental Health (Helsinki, 2005) and its Action Plan, The European Mental Health Action Plan 2013-2020 from the WHO Regional Office for Europe, as well as the Joint Action for Mental Health and Wellbeing strategy (2013) . All these programs and declarations have traditionally maintained that mental health care is not possible without respect for the rights of those affected.
It is also worth mentioning the "WHO Resource Manual on Mental Health, Human Rights and Legislation" (Funk et al., 2006), which involved the collaboration of more than 200 experts from around the world and, above all, the Convention on the Rights of Persons with Disabilities (New York, 2006), which was ratified by Spain on April 21, 2008, and entered into force, with legally binding character, shortly afterwards.
The Convention is primarily directed at governments to legislate and implement inclusion policies for a diverse group comprised of people with long-term physical, mental, intellectual, or sensory disabilities (approximately 10% of the world's population). The Convention is also a program of societal change, aimed at overcoming barriers to full integration, and empowers groups who experience disability firsthand to organize themselves and advocate for their role in the process.
The fundamental rights most threatened in relation to people with mental health problems , and those most addressed by legislation, are:
- The concept of inherent dignity refers to the condition of being a person, beyond that of being sick, which implies taking into account difference (we are all unique and different) and equality (we are all equal in rights).
- The right to be protected from degrading or inhuman practices, including situations such as research or lack of medical attention in risk situations.
- The protection of life or personal integrity , especially in involuntary interventions, as well as the right to be treated respectfully in situations of lack of competence to decide.
- Discrimination in access to social opportunities , including social and health care, due to mental disorder.
- Respect for autonomy, embodied in informed consent, is the gold standard for the relationship between the person receiving care and the professionals. Restrictive measures should be exceptional.
- The right to information prior to consent and throughout the care process.
The existence of legislation that promotes respect for and protection of the human rights of the most vulnerable does not, in itself, guarantee its proper application in practice. Understanding and defending the rights of people with mental health conditions is a responsibility for all citizens, and especially for the legal system and services that provide care to these individuals. Promoting and disseminating examples of best practices in respecting and defending these rights also becomes a primary objective for government agencies, organizations, professionals, individuals and families who use these services, and society as a whole.
(1) Adela Cortina starts from the premise of the need for moral pluralism in order to attempt to construct an ethical proposal that is valid for everyone. To this end, she distinguishes between a minimum ethics and a maximum ethics. The minimum ethics would be civic ethics, the ethics of citizenship, and it centers around human rights, a common minimum that must be shared by all. It is an ethics of justice. The maximum ethics corresponds to individuals or groups who identify with particular and diverse beliefs, life projects, or expectations of happiness, but who respect the minimum required of each and every person.
(2) Rawls's just society would be defined as the result of the reflection of a group of representative rational individuals situated in an original position and under the veil of ignorance (they cannot know what the lottery of life will bring them). Under these conditions, the principles on which this group would base justice would be:
- Principle of freedom: everyone has the same civil rights and individual freedoms.
- Principle of equal opportunities: everyone should be able to access and develop their potential regardless of social inequalities.
- Difference principle: the less fortunate should have more resources to compensate for their greater difficulties
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