Scottish National Action Plan for Human Rights, Health and Social Care Action Group

Response: Mental Health in Scotland – a 10 year vision

September 2016

The Health and Social Care Action Groupof the Scottish National Action Plan for Human Rights welcomes the opportunity to respond to the Scottish Government consultation on ‘Mental Health in Scotland – a 10 year vision’[1].

Human Rights

Human rights are a set of non-political, binding,international standards. They are rights inherent to all human beings, without discrimination based on nationality, race, gender, religion, disability or any other status. Rightsare indivisible, interrelatedand interdependent, which means that all rights have equal status and fulfilment of one right depends – either partly or in whole – on others[2].A number of other principles underpin human rights, including participation, accountability and transparency.

In Scotland, human rights are protected by the Human Rights Act and given effect through the Scotland Act.The Human Rights Act places a duty on public bodies to act in compliance with human rights at all times.The Scotland Act empowers Scottish Ministers to observe and implement the UK’s international human rights obligations.

The combined effect of the Scotland Act and the Human Rights Act places a duty onScottish Ministers, Parliament and public bodies to comply with the European Convention on Human Rights. Together they give people in Scotland a direct route to enforcing some international human rights through our domestic legal system.

Otherinternational human rights are not yet part of (or ‘incorporated’ into) Scotland’s laws, but are included in binding international commitments made by the UK that apply to Scotland. These include treaties like the International Covenant on Economic, Social and Cultural Rights[3] and the UN Convention on the Rights of Persons with Disabilities[4]. By becoming a party to international treaties like these, Governments commit to respect, protect and fulfil human rights. This means that the State must not simply refrain from directly interfering with rights or protectingindividuals and groups from interference by others. It also means the State has an obligation to take pro-active, positive steps to facilitate the enjoyment of rights[5].

Incorporating international rights into domestic law, policy and practice would support the realisation of a healthier and fairer Scotland, and we therefore welcome the First Minister’s recent commitment to “do even more, even better on incorporating human rights in Scotland”[6]. We would urge the Scottish Government to use the mental health strategy as an opportunity to progress the realisation of international human rights without waiting for legislative incorporation.

The Right to Health

Realising the fundamental right to health supports the Scottish Government’s aspirations for a healthier and fairer Scotland.

The right to health is not a right to be healthy or free from illness; it is the right to attain the highest possible standard of physical and mental health. As NHS Scotland Director General Paul Gray has noted, human rights are “essential to the delivery of dignified, person centred care”. However the right to health is not just concerned with health care; it means that all facilities, goods and services across the social determinants of health (health care, housing, work, food, income, and so on) must be available, accessible, acceptable and of a good quality. The right to health is interrelated to rights such as an adequate standard of living, independent living, social security, employment, education and housing[7].

The right to health is an economic and social right, and we welcome the First Minister’s announcement that the Scottish Government commits to working with civic Scotland to develop social and economic rights for all[8]. We believe the next mental health strategy provides a substantial opportunity to progress this agenda.

Consultation Questions 1 and 2: The Priorities and Early Actions Need to Transform and Improve Mental Health in Scotland

Human Rights and Mental Health in Scotland

Human rights are already inherent in the ambition for mental health[9], and health and social care more widely. However, for many people – including people affected by mental health problems –the right to the highest attainable standard of health remains unrealised[10]. People with mental health problems can die 20 years younger, are poorer on average and have fewer opportunities in life than the general population.

We therefore welcome a proposed framework for mental health that is based on engagement with people and groups and aims to take a whole person and whole life approach. We also welcome the renewed commitment to prioritise prevention and early intervention. However, our understanding of the opinions and experiences of people affected by mental health problems is that the priorities and early actions represent a limited view of what is required to enable people to fully enjoy their right to health, and human rights more widely.

For example, Commitment 1 of the previous mental health strategy indicated that the Scottish Government would “commission a 10 year on follow up to the Sandra Grant Report to review the state of mental health services in Scotland in 2013.”[11] This review was conducted by the Mental Health Foundation and Voices Of eXperience, with support from Health Improvement Scotland[12]. It highlights several areas where there are opportunities for development that are not reflected in the current consultation document in areas like participation and co-production, inequalities, isolation and cross-sectoral approaches.

The 2012-15 mental health strategy also made a commitment to “work with the Scottish Human Rights Commission and the Mental Welfare Commission to develop and increase the focus on rights as a key component of mental health care in Scotland.”[13] In consultation with a wide range of stakeholders, these organisations produced a report[14] that identifies key rights-based activities already underway in Scotland and the challenges and opportunities that exist to furthering this agenda. We urge the Scottish Government to take greater account of the recommendations in the Commitment 1 and 5 reports in the development of the next mental health strategy.

While we welcome the reference to human rights in the current consultation document, we believe the strategyshould go much further to clarify and articulate the rights, standards and principles that will underpin it and the practical measures that will be taken to operationalise these.

While there are several examples of people enjoying good standards of mental health care, treatment and support around Scotland, there are still manyrestrictions to people’s full enjoyment of their rights. We highlight a small sample of these below.

Limits to supported decision-making and participation

People affected by mental health problems experience obstacles to their full, meaningful and effective participation in decisions that affect them. This extends not just to their own care, treatment and support, but more widely into decision-making around the design, delivery and financing of health services and support. This is compounded by limited access to independent advocacy and other means of supported decision-making. We recommend the Scottish Government incorporate supported decision-makinginto the mental health strategy and consider methodology like participatory and human rights budgeting for service design.

Right to available, accessible, acceptable and good quality support

There isstill some way to go to ensure that people in Scotland enjoy their right to mental health care, treatment and support that is timely, available, accessible, acceptable, and of a good quality[15]. In terms of giving effect to human rights and the right to health, there are many tools and resources available, for example those produced by the United Nations[16] and World Health Organisation[17]. These have been specifically created to enable States to integrate and mainstream rights into national policy, legislation and practice, and we recommend the Scottish Government review these materials as part of the mental health strategy development to create robust, rights-based, indicators and outcomes.

Stigma and discrimination

Despite much work to address stigma and discrimination, this is still a part of everyday life for people affected by mental health problems[18], including within mental health services themselves. This is compounded by an overly clinical and paternalistic view of mental health, particularly in statutory services. People with lived experience of mental health problems are sometimes regarded as passive recipients of care who need to be ‘fixed’ to fit in with the rest of society, rather than rights holders with skills and strengths who are capable of taking an active role in directing their own lives. It also places an emphasis on medical models of support at the expense of alternative, community-based and social models that may be more appropriate.

Unfortunately the proposed priorities and framework set out in the consultation document compound this view by focusing on primary and statutory services and ‘treatment’. While these can play an important role, people with lived experience of mental health problems are clear that there are a wide range of things beyond these that support recovery and on-going mental health and wellbeing.

We recommend that the mental health strategy extend itsvision beyond primary care and NHS systems to include, for example, Third Sector and community based, support. Better personal outcomes will only be achieved if the focus also extends beyond health and social care to include a cross-sectoral and whole person approach with greater emphasis on education, employment, and so on.

Lack of accountability and information

Where rights-based mental health policy and legislation exist, there is still an unacceptable gap between this and implementation (the ‘failure to implement’)[19]. Despite the checks and balances incorporated in current mental health laws, guidelines and practice, there is inadequate redress when rights are infringed[20]. For example, recent figures indicate people are waiting far longer than targets dictate to access mental health services. However it is unclear what the consequences are, if any, for those with a duty to ensure people enjoy their right to timely and accessiblesupport.

Health and social care institutions are often unaware that they are infringing people’s rights in situations like these, while at the same time people are not informed they have these rights and/or don’t know how to access them.

We believe that the current problems in mental health care, treatment and support can change and that the consultation on a future vision for mental health in Scotland is a timely opportunity to rethink how we embed and operationalise international standards of human rights. If we do this, we can start to envisage an approach to mental health and wellbeing where the human being really is at the core of decision-making – not just because our values say that is the right thing to do, but because our understanding and upholding of rights requires us to do it.

Question 3: Scotland’s Mental Health Services in 10 Years’ Time

Adopting a Human Rights-Based Approach in Scotland

We believe that adopting a rights-based approach to mental health and wellbeing will help the Scottish Government achieve its aim to transform mental health in Scotland.

The First Minister has noted that, “When the Human Rights Act was passed in 1998, the intention was that the [European Convention on Human Rights] would provide a floor for human rights across the UK... But the Convention was always intended to be a floor, not a ceiling.[21]” Taking a human rights-based approach to mental health and wellbeing, in a gradual and considered way, is about taking rights beyond the ‘floor’ of what is acceptable.

Human rights are often associated with courts, lawyers and legal action. However they are also standards to help shape policy, programmes and practical interventions. Rights and the human rights-based approachcan be embedded at all stages, including legislation and policy; budgeting; implementation; monitoring, evaluation and review. The rights-based approach adds to Scotland’s values based approaches by ensuring we are accountable for our actions.

To make a real difference much more must be done to increase understanding of how such approaches can be used in practice and translate the policy intentions “into more consistent, positive outcomes to which individuals are entitled.”[22] This does mean making different decisions around how resources are allocated and used – especially in times of austerity.

We recognise that in the current environment this is challenging. But the difficult financial, and uncertain political, climate give greater impetus to the need to develop new approaches on a fair, robust and legal basis. A human rights-based approach to decision-making can be a very useful framework to inform difficult decisions and budget prioritisation by giving a structure and tools against which to balance competing needs and develop new and sustainable approaches to health and social care.

The rights-based ‘PANEL’ principles[23] offer a way to put rights into practice. These are:

  • Participation – people take part in decision-making and have a voice
  • Accountability – organisations and people are accountable for realising rights
  • Non-discrimination – everyone has the same rights, regardless of their status
  • Empowerment – people have the power to know and claim their rights
  • Legality –all decisions answer to human rights legal standards

We welcome the Scottish Government’s commitment to embed the PANEL Principles in the mental health strategy priorities and framework, but we do not recommend prioritising any element, such as non-discrimination and equality, over others: all PANEL Principles are of equal importance.

We would also recommend that the Scottish Government apply a human rights-based approach – using the PANEL Principles – in the development process of the mental health strategy itself.

Highlighted below are a few examples of how the PANEL Principles can apply to strategy development and realisation of rights for people affected by mental health problems in Scotland.

Participation

People affected by mental health problems, including people with lived experience and unpaid carers, as well as Third Sector and other stakeholders,shouldparticipate fully, freely and actively in the design and delivery of Scotland’s next mental health strategy. We are concerned that the short consultation period of only 7 weeks is insufficient for meaningful participation and recommend the Scottish Government provide further opportunities to maximise people’s engagement in this process.

As noted earlier, participation in decision-making extends beyond individual support and this is a timely opportunity to embed the rights-based approach in the development of national strategy itself. Using a co-production approach, like that used in the development of is ‘Gaun Yersel’,Scotland’s self management strategy[24], could play a crucial role in ensuring that the mental health strategy reflects and supports the views and experiences of people affected by mental health problems.

Enabling people to participate fully and equally in the development of the mental health strategy will ensure it adequately reflects their views and experiences and is designed to address theensure key problems currently associated with the right to health, including issues with accessibility, acceptability, availability and quality.

Accountability

We welcome the commitment to develop personal outcomes approaches in addition to clinical targets. However outcomes and indicators need to be meaningful and people need to be held accountable for the right things if we are to see transformational change. It is crucial that there is effective monitoring of the realisation of people’s human rights and strong consequences where they are not achieved.

In addition to the resources previously mentioned that support States to give effect to international human rights, there are tools that have been specifically designed for mental health settings, including the WHO QualityRights Tool Kit.[25] We recommend the Scottish Government review resources like these to support effective accountability in the mental health strategy.

In the absence of a full evaluation of the last mental health strategy we also recommend this be built into the future strategy. Without greater opportunities to challenge issues using a human rights-based approach, Scotland will undermine its commitment to practically realising many people’s rights.

Non-discrimination and equality

By fully involving the people who are most marginalised across Scotland and focusing on what matters to them we can begin to address issues like stigma and discrimination. Seldom heard groups in debates about health and social care priorities, such as refugees and asylum seekers, prisoners, people with experience of homelessness and many more must be actively and meaningfully engaged in the development of the mental health strategy.