What does the “right to health” have to offer mental health patients?

International Journal of Law and Psychiatry 28 (2005) 141–153

What does the bright to healthQ have to offer mental health patients?

Sylvia Bell

Human Rights Commission, P.O. Box 6751, Wellesley Street, Auckland, New Zealand

People living with mental illness are a particularly vulnerable group—not only because the illness

is often misunderstood and feared, but because the people themselves can be subjected to coercive

treatment administered through policies which they have had little say in developing. In many

countries, one of the most significant policy initiatives relating to people with mental illness in

recent years has been the decision to deliver treatment in the community through compulsory care

orders.1

Community care is based on the premise that people with mental illness have the right to live and

work in the community.2 To make this a reality, however, they must be able to access necessary services

such as accommodation and employment and, all too often, the effect of discrimination and a lack of

political commitment make this difficult, if not impossible. As the State deprives people subject to

community care orders of a basic right–the right to refuse treatment–arguably it has a concomitant

responsibility to ensure that any treatment is provided in an environment which allows them to fully

benefit.

Prioritising resources to ensure adequate provision of community services, could be seen as a

commitment to realising the right to health for people with mental illness. This paper examines some of

the current limitations on realising this and explores some options for achieving increased funding of

community care for people with mental illness.

0160-2527/$ -

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see front matter D 2005 Elsevier Inc. All rights reserved.

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ress: [email protected].

e users are uneasy with the idea of community treatment as they consider that it can lead to lowering the threshold at which

tment can be administered. They also consider that people who meet the threshold for involuntary treatment should be in a

nment rather than left to fend for themselves in the community: M. O’Hagan, bForce in Mental Health Services: International

erspectivesQ Paradox of Rights Seminar, Auckland, August 2002. See also J. Dawson, S. Romans, A. Gibbs, R. Mullen, N.

nsley, bThe Proper Uses of Community Treatment OrdersQ Legal Research Foundation Conference, Auckland, June 2002.

UN Principles for the Protection of Persons with Mental Illness and for the Improvement of Mental Health Care U.N Doc. A/

S. Bell / International Journal of Law and Psychiatry 28 (2005) 141–153142

1. Origin of the right to health

Although the World Health Organisation is generally regarded as being the ultimate authority on

health matters, it is the Universal Declaration of Human Rights that established the basis for the

international legal framework of the right to health. The Declaration itself is not legally binding but

consists of a statement of principles that have been codified in a variety of international instruments

or treaties.

The treaty that is most relevant to the right to health is the International Covenant on Economic,

Social and Cultural Rights (ICESCR),3 but a variety of other conventions dealing with groups who are

deemed to be particularly vulnerable–such as children,4 women5 and people of different ethnicities and

race6–also contribute to how the right to health is interpreted and realised. In addition, declarations such

as the Principles for the Protection of Persons with Mental Illness, although not enjoying the same status

as treaties, also establish standards in specific areas.

The international agreements conceive of the right to health as part of a wider social

environment than simply the absence of disease.7 It extends not only to timely and appropriate

health care but to the underlying determinants of health, such as safe working conditions and adequate

food and shelter. The right is inclusive and envisages health care people are entitled, rather than

privileged, to access, and which is provided in a non-discriminatory manner respecting diversity and

difference.

The jurisprudence8 recognises that human rights are universal, indivisible and interdependent. That is,

human rights are inherent within every individual because they are human,9 no right is superior to

another and individual rights should not be considered in isolation, since the enjoyment of one will often

depend on the realisation of another. The most obvious example of this is the nexus between civil and

political rights, and economic and social rights. For example, a person who is illiterate may find it

difficult to exercise the right to vote. In the context of the right to health, other relevant rights include the

right to housing, food, work and education.

By re-conceptualising the meaning of health within its broader social matrix so that it is not

limited simply to medical care, but includes the provision of community services, it is possible to

argue that the necessary facilities should be provided as of right. It would follow, therefore, that the

denial or limitation of basic services, which would enable people with mental illness to live a full,

active life in the community because of inadequate resourcing, could be viewed as a possible

breach of the right to health and, in particular, the ICESCR.10

3Article 12 recognises the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.

4Article 24:United Nations Convention on the Rights of the Child.

5Articles 11, 12, 14(b):United Nations Convention on the Elimination of All Forms of Discrimination Against Women.

6Article 5: International Convention on the Elimination of All Forms of Racial Discrimination.

7Hunt, P. (1997), Reclaiming Social Rights-International And Comparative Perspectives 71.

8See also the Proclamation of Tehran, UN Doc.A.Conf.32/41 (1968) and the Vienna Declaration and Programme of Action, UN Doc.

A.Conf.157/24 (1993).9Mann, J., Gostin, L., Brennan, P., Lazzarini, J., & Fineberg, H. (1994). Health and Human Rights, 1 Health and Human Rights, 1.

10See the development of this concept In R. Whittle, The Question of Resources and the Place of Disability Rights and S. Bell (1998)

Community care: A suitable case for treatment, Health Care Analysis 6.

S. Bell / International Journal of Law and Psychiatry 28 (2005) 141–153 143

2. Community care

The concept of community care originated in the 1960swhen advances inmedicationmade it possible for

people with mental illness to live in the community and receive treatment. While there has been

considerable support for the theory, it has proved difficult to implement in practice. Not only was scant

recognition given to the effect of the stigma and prejudice that almost inevitably accompaniesmental illness,

but the decision to deinstitutionalise has almost invariably been seen as an opportunity to bde-hospitaliseQ.As the World Health Organisation has noted, the two are not synonymous:

De

co

cre

11Me

12Alt

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sanctio13

Sec14

Cap15

Re

-Institutionalisation is a complex process leading to the implementation of a solid network of

mmunity alternatives. Closing mental hospitals without community alternatives is as dangerous as

ating community alternatives without closing mental hospitals.11

This is not to say that community alternatives are not provided by countries that promote community

care but, more often than not, their provision is undermined by inadequate resourcing.12

3. The legislative basis for community care in New Zealand

In New Zealand the Mental Health (Compulsory Assessment and Treatment) Act 1992, accords the

Family Court a discretion about the type of compulsory treatment order to make. Orders may be either an

in-patient order or a community treatment order. New Zealand’s commitment to community care is

reflected in a presumption in its mental health legislation in favour of community treatment orders.13

The Court can take a number of factors into consideration in making a community treatment order

including whether the service in question provides bcare and treatment on an out patient basis that is

appropriate to the needs of the patientQ and if the bsocial circumstances of the patient are adequate for his

or her care in the communityQ. Neither phrase is defined in the Act. However, Courts and Tribunals have

interpreted the terms–particularly btreatmentQ–very liberally, in one instance noting that it b. . . involvesassisting people to live in the community at their best level of functioning. . . treatment in this sense

involves rehabilitationQ.14 bSocial circumstancesQ, an even more nebulous term, has been construed

widely so as to ensure consistency with a patient’s human rights and freedoms—including the right to

freedom of movement.15

4. Statutory obligation to provide resources

The New Zealand mental health legislation illustrates an anomaly frequently seen in mental health

laws premised on community care. Although there is a presumption that a person will be treated in the

ntal Health: New Understanding, New Hope, World Health Report 2001 (WHO, 2001).

hough many of the issues apply equally to people living with mental illness who are not subject to the Act, I have deliberately restricted my

nts to people under compulsory care orders since if a person loses the right to make significant choices about their lifestyle because of action

ned by the State, then the State arguably has an obligation to create an environment which allows the treatment to be successful.

tion 28(2) MH(CAT) Act 1992.

ital Coast Health v R, (1995) 13 FRNZ 295, [1994] NZFLR 838, Frater, J. at 844.

E, (1994) 11 FRNZ 354, [1994] NZFLR 328.


community, there is no corresponding statutory obligation to provide the necessary resources.16 In other

words, a provision such as Section 28 which requires a court to be satisfied that certain conditions are

met before making a compulsory treatment order, does not translate into a duty on health authorities to

provide specific resources.17

One commentator has described the conundrum that service providers find themselves in as a result as

follows:

b.ca

ser

b.fai

the

16Tra

17R (

impose

facilitie

Mental18

Ro

disorde19

Re

legislat20

Re21

[19

. .the failure to be able to hold service providers liable at law for inadequate provision of services

n be contrasted with the very strict accountability for public expenditure required by the same

vice providers. There must be a very strong incentive for service providers to reduce services for

ich they are not accountable to keep within budgets for which they are accountableQ.18
wh
This lack of a statutory obligation to provide resources, has led Mental Health Review Tribunals,

frustrated at their inability to make orders allowing hospitalised patients to be treated in the community,

to discharge patients from compulsory treatment completely rather than to continue to detain them as in-

patients.19 In one case a Tribunal going so far as to comment that:20

. .treatment cannot include the prolonged detention of a patient in hospital simply because of the

lure of [an]. . . authority to provide other resources . . . when one examines the issue of the health ofpatient, a factor that must be taken into account is the psychological effect upon a patient of

during a serious curtailment of personal liberty.Q
en
It goes without saying that, apart from the obvious civil liberty issues, there can be real difficulties for

clinicians to maintain a satisfactory therapeutic relationship if a community care order is the best option

for a patient but the necessary services are not, in fact, available.

5. Judicial ambivalence over the resource issue in the health context

Given the impact of resources on how health services are provided, it was probably inevitable

that the courts would become involved to ensure transparency and accountability for decisions.

The courts are generally reluctant to question the allocation of resources where it is necessary to

second guess clinical decisions. For example, in R v Cambridge District Health Authority ex p B21

the English Court of Appeal upheld a local health authority’s refusal to fund further treatment of a child

pski’s Family Law, Vol.3, MH28.07.

on the application of K) v Camden and Islington Health Authority, [2001] EWCA Civ. 240, [2002] QB 198 CA: bWhere [legislation]

s a duty on Health Authorities to provide after care facilities for the benefit of discharged patients. . . the nature and extent of those

s must, to a degree, fall within the discretion of the Health Authority which must have regard to other demands on its budgetQ but see R v

Health Review Tribunal, ex p Hall, [1999] 3 All ER 883 (rev’d in part on appeal [1999] 4 All ER 883.

binson, F.C.J., bThe right to treat and the right to be treated: the law relating to compulsory treatment of patients suffering from mental

r in the community.Q Paper presented to the ANZAPPL conference Auckland 2000, September.

PTP, 29/6/94, SRT40/94; Re H, 16/3/94, SRT8/94. Compare, however, the situation in England and Wales where the mental health

ion specifically recognizes the right of patients to after care in the community: R v Ealing HA ex p Fox, [1993] 3 All ER 170.

H, ibid.

95] 2 All ER 129 (CA), [1995] 1 WLR 898.


with leukaemia, stating that it was not the Court’s role to decide between conflicting medical opinions or

how a health authority’s limited budget should be allocated when there were competing claims on

resources. And in New Zealand, in Shortland v Northland Health Ltd,22 the High Court held that the

decision not to admit a patient to a dialysis programme was as much a result of co-morbidities as resource

limitations, the Judge observing that ba decision is still a clinical decision even though one of the factors inthat decision-making process has to do with the availability of resourcesQ.23

But while the Courts maybe reluctant to become involved in substantive matters they are less hesitant

to query procedural issues. While the United Kingdom has been to the forefront in this development,

other countries with analogous jurisdictions such as New Zealand, Canada and Australia, are

experiencing a similar phenomenon.24 The importance of this should not be underestimated–particularly

with the increasing bureaucratisation of the health system–since procedural rights provide a useful

conduit for requiring decision makers to justify their decisions and, in some cases, rectify them.

In the UK, for example, policies not to provide interferon for patients with multiple sclerosis25 or

provide funding for gender reassignment26 have been successfully challenged in this way. In Canada, the

Supreme Court has upheld the need for state governments to accommodate members of disadvantaged

groups so that they benefit equally from services offered to the general public, when the service (in this

case, provision of sign language to allow deaf people to access medical services) reflects government

policy.27

Despite such developments there are still limitations on effecting change to resourcing decisions by

querying existing policies or decisions, particularly when more substantive rights are involved.

However, increasing acceptance of an obligation to respect the human rights of affected individuals adds

an extra dimension which may require a court to assess not only procedural matters, but to consider

whether available resources are adequate to ensure the rights are observed.28

6. International obligations and the problem of justiciability

When a country ratifies an international treaty, it accepts a commitment to give effect to the standards the

treaty contains. Most often this is done by enacting domestic legislation which allows the right in question

to be enforced by local courts. Usually the rights and freedoms in the International Covenant on Civil and

Political Rights (ICCPR) will be protected by constitutional documents such as Bills of Rights (as is the

case in New Zealand).29 The ICESCR rights, however, are complex and States have been reluctant to

accord them the same constitutional status as civil and political rights. As a result, socio-economic rights

22[1998] 1 NZLR 433.

23Ibid p.12.

24Stewart, C. (2000) Tragic choices and the role of administrative law, 321 British Medical Journal 105.

25R v North Derbyshire Health Authority ex parte Fisher, [1997] EWHC Admin 675.

26R v NW Lancashire HA v A.D & G (2000), 53 BMLR 148 [1999] EWHC Civ 2022.

27Eldridge v British Columbia (Attorney-General), [1997] 3 S.C.R. 624.

28R (on the application of KB & Ors) v MHRT and Secretary of State for Health, [2003] 2 All ER 209, [2002] EHWC 639, [2003] 3 WLR

185, 2003 UKHR 499 QB at para [49].29

The New Zealand Bill of Rights 1990 does not have the same constitutional status as comparable bills of rights in other countries since the

Courts cannot strike down inconsistent legislation. It does, however, require legislation to be interpreted consistently where possible and

provides a mechanism for holding public authorities accountable for their actions.


tend to be found scattered throughout a wide variety of legislation which often anticipates resource

constraints as a valid consideration, making enforceability problematic.30

Justiciability is the ability of the courts to provide a remedy for aggrieved individuals claiming a

violation of their economic and social rights.31 Historically judicial ambivalence to adjudicating on such

rights is attributed to the fact that it can involve compelling the State to allocate resources—a function

that is considered to more properly belong to the political and executive arms of government. But unease

is increasingly being expressed, both domestically and internationally, at bprogrammatic approaches

that depend solely upon legislatures and/or administrative agencies for the implementation of economic

and social rights. . .Q32 since it is considered that a country truly committed to socio-economic rights,

should translate that commitment into rights that can be claimed and adjudicated upon, not leave them

simply as policy objectives.33

In countries such as New Zealand and Australia one reason for emphasising the enforcement of civil and

political rights (which are essentially about protecting the freedoms of individuals) rather than economic

and social rights (which often involve issues that affect groups or classes of people) is that it is assumed that

enforcement does not trespass as much on decisions relating to the allocation of resources. However, this is

clearly not correct. Enforcing civil and political rights also comes with a cost. For example, the right to a

fair trial involves funding legal aid to ensure that everyone can access the courts.34

The distinction between the different types of rights is therefore considered artificial particularly since, as

noted earlier, all rights are interrelated and implementation of one will often effect how the others operate.

7. How the Courts have approached socio-economic rights35

In New Zealand the issue of justiciability was raised recently in relation to the right to

education.36 In Daniels v Attorney General37 a group of parents challenged a government policy which

involved mainstreaming the education of children with special needs. They argued that the children were

disadvantaged because they received inadequate support in conventional classrooms.

30For example, s.3(2) of the New Zealand Public Health and Disability Act 2000.

31Steiner, H., & Alston, P. (2000). International Human Rights in Context: Law, Politics and Morals (2nd ed.) at 275.

32Ibid. Similar criticism was leveled at the initial version of the European Social Charter which limited economic and social rights to policy

objectives in contrast to civil and political rights which were outlined in the European Convention and protected through the ECHR. The Indian

Supreme Court, faced with a Constitution which explicitly makes socio-economic rights unenforceable, has resorted to interpreting civil and

political rights in a way that includes socio-economic rights, for example, the right to life as meaning the right to an adequate quality of life: Olga

Tellis v Bombay Municipal Corporation AIR (1987) LRC 351; or the right to education: Mohini Jain v State of Karnataka JT [1992] 4 S.C. 292

(India).33

It is important to distinguish between justiciability as it relates to a State’s performance internationally which will focus more on availability

of resources, and domestically which is likely to relate to legislative or administrative enforcement which is more closely linked to the economic

and social climate of the State concerned: M. Craven, The International Covenant on Economic, Social and Cultural Rights—A Perspective on

its Development (1998) at 128.34

S. Holmes, and C. Sunstein, The Cost of Rights: Why Liberty Depends on Taxes (1999) 48, cited in A Gibbon, Social Rights, Money matters

and Institutional Capacity 14 N.J.C.L. 363 (2003). See also the comments of the Constitutional Court of South Africa In re Certification of the

Constitution of the Republic of South Africa 1996(4) SA 744(CC) at para 78 where the Court stated bThe fact that socio-economic rights will

almost inevitably give rise to such (budgetary) implications does not seem to us to be a bar to their justiciability.Q35

These cases differ from the health cases noted earlier as the claims depend on the existence of bfree standingQ (as opposed to statutory) rights.36

See also cases such as Curtis v Minister of Defence, [2000] 1 NZLR744; or CREENZ Inc v Governor-General, [1981] 1 NZLR 172 (CA).37

[2003] 2 NZLR 742.


In the High Court, the Judge–despite his expressed concern at overstepping what he saw as the

legitimate boundary between the judiciary and the Executive–appears to have considered that there

was a free standing right to education (as opposed to that conferred by the statute), and that each

student should have been individually assessed on the introduction of the policy whether the

education offered was suitable for their particular needs. The Court of Appeal disagreed, stating

that the standard was not capable of bjudicial supervisionQ—although it did concede that the

Minister of the day had erred in applying the relevant statutory criteria.

The issue of socio-economic rights had also been considered some years earlier in Lawson v

Housing New Zealand.38 In Lawson the complainant sought judicial review of a government policy to

increase the rent of state housing to market levels. Mrs Lawson claimed that she was unable to meet the

rent and as a consequence would be forced out of her home. She alleged that the deprivation of

affordable shelter amounted to a breach of the right to an adequate standard of living, and that this

contravened the ICECSR which New Zealand had ratified.

The High Court held that the matter complained of involved:

b. .co

b. .pro

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pro

be

ca

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the

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bTbe

38[19

39R v

40R v

41[200

42[19

. strong policy considerations and was [therefore] not amenable to judicial review. . . the issue ofmpliance with international treaties was determined by international forums not by the Court.Q

Williams J went on,

. the Courts should be less inclined to intervene in the absence of manifest unfairness in the

cedures by which those decisions were arrived at. A perfect match between benefits and policies of

tional application and the needs of every state house tenant was scarcely conceivable. However, the

cess by which the reforms and benefit changes were publicised, refined and implemented could not

stigmatised as being procedurally improper or inherently unfair notwithstanding that, when they

me to be applied to Mrs Lawson, they caused adverse financial consequences. Those consequences

the result of the application of those policies once determined but, given that the process by which

y were determined does not offend against the legal requirements . . . any hardship which she

erienced is insusceptible to judicial review.Q

The Courts in the United Kingdom have addressed the right of sick and disabled people to community

services39 and the right to education40 and, in most cases, adopted a similar approach to that in New

Zealand eschewing intervention on behalf of individual complainants.

In Sinnott v Minister for Education41, a case heard by the Supreme Court of Ireland, Hardiman J

(quoting Costello J–as he then was–in O’Reilly and Ors v Limerick Corporation, Minister for the

Environment and Ireland42) noted (at paras 340, 341) that,

here is an important distinction to be made between the relationship which arises in dealings

tween individuals . . . and the relationship which arises between the individual and those in

97] 2 NZLR 474.

Gloucester County Council ex parte Barry, [1997] 2 WLR 459.

East Sussex County Council ex parte Beth Tandy, [1997] EWCA Civ 2278.

1] IESC 39, [2001] 2 IR 505.

89] ILRM 181.

au

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43Go

(BC C44

See45

Bai46

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thority in a political community (which for convenience I will call the Government) when goods

ld in common for the benefit of the entire community (which would nowadays include wealth raised

taxation) fall to be distributed and allocated. . . no independent arbitrator, such as a court, can

judicate on a claim by an individual that he has been deprived of what is his due.Q

While the Canadian courts have taken a more robust approach in recent years, acknowledging that the

concept of non-justiciability does not present an insurmountable barrier to claims against the State, they

have still veered away from deciding issues relating to resource allocation or consideration of social

welfare programmes and the like.43 The case law seems to suggest that, although the Courts may not

have positively enforced socio-economic rights, they have not ruled it out. What is also evident,

however, is that the courts are less likely to intervene if (as was the case in Lawson) the policy as a whole

cannot be impugned for unfairness or evidence of legislative non-compliance.44

To enforce an economic or social right in law it helps if there is a clear direction in principle from

Parliament.45 But even an unambiguous direction may not be enough. South Africa provides a good

illustration of this. The Constitution of the Republic of South Africa46 specifically refers to the socio-

economic rights (and therefore, by implication, incorporates the ICESCR).

The interdependence and indivisibility of human rights is reflected in Section 27 which refers to the

right of everyone to have access to health care services, food and water, and social security (including

social assistance, if they cannot support themselves or their dependents) and that no one can be refused

emergency medical treatment. Section 27, however, also includes the most contentious aspect of the

ICESCR, namely the concept of progressive realisation and the potential limitation of resource

constraints.47

Progressive realisation and resource limitations are included in the ICESCR48 since even relatively

wealthy countries are unlikely to be able to meet their obligations as soon as they ratify the Covenant.

Compliance is contemplated happening incrementally or, to use the language of the Covenant,

bprogressivelyQ, depending on the available resources and the competing claims and priorities on those

resources. What a State cannot do, however, is commit itself to the Covenant and then indefinitely delay

taking steps towards meeting the commitments it has assumed in doing so.49

Section 27 and its relationship to the right to health was first considered in Soobramoney v Minister of

Health (Kwazulu-Natal).50 The appellant had end stage renal failure and appealed to the Court claming a

constitutional right to receive dialysis. Interestingly, he did not seek to rely on access to health services

but rather the right not to be refused emergency medical treatment. Why this was so is not immediately

sselin v Quebec (Attorney-General) 2002 SCC 84 but see Auton v British Columbia (Attorney-General) (2002), 220 DLR (4th) 411

A).

Gibbon supra at fn 34, p.377.

ley bThe Right to a Adequate Standard of Living: New Issues for Australian LawQ [1997] AJHR 22.

t No. 108 (1996).

tion 27 displays a certain pragmatism compared to the Covenant which requires compliance to bthe maximum of its available resourcesQ.nly refers to bavailableQ resources.International Covenant on Civil and Political Rights, by comparison, does not include the concept of progressive realisation. The nature

rights is such that immediate realisation is expected of contracting States.

further discussion on how these terms have been interpreted see P. Alston, and G. Quinn, The Nature and Scope of States Parties’

tions under the International Covenant on Economic, Social and Cultural Rights, 9 Human Rights Quarterly 156 (1987).

8 (1) SA 756 (CC), 1997 (12) BCLR 1696 (CC).


apparent, although it may have been an attempt to circumvent the resource issue and consequent

permissible limitation. The Court declined to interfere in the clinical decision citing budgetary reasons as

the reason. Soobramoney demonstrates that even where socio-economic rights are enshrined in law,

economic constraints can still influence the outcome.

The decision has been compared unfavourably with another, Grootboom and Ors v Oosteenberg

Municipality and Ors51 which related to the right to housing. Although resource implications were again

raised as an obstacle for not enforcing compliance, the Court was more assertive about the positive

obligation on the State to enforce the rights provided in the Constitution. One commentator described it

as bdemonstrat[ing] a willingness on the part of the judiciary to enforce a socioeconomic right even in

the face of a plea of budgetary constraints on the part of the executiveQ and a significant attempt to

address the issue of progressive realisation in the context of international human rights jurisprudence.52

More significantly, in Minister of Health and Ors v Treatment Action Campaign and Ors53 a

government policy which meant that an anti-retroviral drug which prevented mother to child

transmission of HIV was not available in the public sector, was challenged under Section 27 as

denying access to health services. Although the Constitutional Court acknowledged that there was no

free standing right to health, the Court clearly considered that the doctrine of the separation of powers

did not impede its ability to make decisions that required the Government to adopt a policy that was

consistent with its obligations under the Constitution.

8. International obligations and community care

New Zealand’s commitment to the international instruments means that it is obliged to protect the

rights of its citizens as a matter of international law. Although justiciability is one way of ensuring

fulfilment of international commitments, as the cases demonstrate, it does not follow that the Courts will

intervene even where a country has committed itself to the international standards. However, this is not

the only avenue available.

The remainder of this paper outlines a number of ways of promoting the right to health and their

application to people with mental illness subject to compulsory community care.

8.1. Adopting a rights based policy

In some countries the provision of resources for mental health services is specified in legislation54 but

in most the funding of the services is seen as the responsibility of the executive and policy makers.

Funding of community care can be achieved by policies which anticipate integrating mental health

care into general health services.55 This has certain advantages as it not only minimises the stigma that

attaches to people with mental illness if they are treated in segregated facilities, but it also makes it easier

512001 (1) SA 46(CC), 2000 (11) BCLR 1169 (CC).

52Ngwena, C. (2001). The recognition of access to health care as a human right in South Africa: Is it enough?, 5 Health and Human Rights 35.

53532002 (5) SA 721 (CC), 2002 (10) BCLR 1033 (CC).

54For example, Article 4 of the relevant mental health law in Brazil (no. 102216) allows the government to bdesignate budgetary resources to

build and maintain a network of mental health services that shall be both diverse and competentQ.55

Supra. Fn 12. Chapter 4: bIntegrating mental health care into general health servicesQ.


to argue for the equitable distribution of funding between mental and physical health and to ensure

services are provided on non-discriminatory terms.56

It is also axiomatic that the introduction of new policy initiatives requires funding. However, in the

case of community care it was usually assumed that the funding that previously maintained people in

institutions would be re-deployed to ensure adequate care in the community. The difficulty with this

theory is the misconception identified in the WHO comment. Namely, that de-institutionalisation was

often equated with the closure of hospitals and this not only overlooks the need to provide some

continuing form of in-patient facility but also that proper community treatment can be more, rather than

less, expensive than inpatient care.

This happened to a certain extent in New Zealand. Not only is there limited provision for the care of

the comparatively small percentage of people who are acutely unwell, but people are often discharged

prematurely. The closure of mental institutions has also meant that there is a lack of asylum, in the most

benevolent sense, for people who are not unwell but simply need time out. The inevitable consequence

of this is that people can become ill again more rapidly and more frequently. When this is added to the

effect of the discrimination faced by people with mental illness and their inability to often access what

most people take for granted, it can be seen that people subject to compulsory community care face

significant difficulties in addition to simply coping with their illness.

One reason that many of the policies relating to community care have not always succeeded may be the

reasons of policy makers adopting a bneeds basedQ approach to policy rather than a brights basedQ one.57

Although the two approaches are not necessarily antipathetic, if policy is formulated on the premise that

people were owed certain things as a right, rather than as a matter of charity, a different picture might

emerge. Particularly if, as suggested earlier, a holistic interpretation of the right to health is adopted.

This is because inherent in entitlement to a right is the corresponding duty58 on the State to provide it.

While this will be subject to the limitations identified earlier, approaching policy from a rights

perspective emphasises the moral importance of the right and can influence its priority in terms of

resources. The indivisibility and interdependence that are an integral part of a rights based approach also

mean that those aspects of community care, such as housing or meaningful employment, that may not

immediately be considered to be relevant to the right to health, will be taken into account. And, finally,

an aspect of a rights based approach to policy making that will resonate with many consumers is the

expectation that those affected by the policy should have a say in how it is implemented.59

8.2. Non-discrimination

An aspect of ICESCR that could prove to be the lynchpin for requiring better community care is Art.

2(2) which relates to non-discrimination and equality. The requirement that ICESCR rights are provided

56Problems can still arise around decisions on apportioning funding even if mental health funding is bring-fencedQ to prevent it being

subsumed in a global health budget. See the comments by Judge Mason in The Report under Section 47 of the Health and Disability Services

Act in Respect of Certain Mental Health Services (1996) (dThe Mason ReportT) which identified a lack of consistency and equity in funding of

mental health services in New Zealand.57

Comment by officials from the Ministry of Health, August 2003. A rights based approach is one that is explicitly based upon the norms and

values set out in the international law of human rights.58

In the case of economic and social rights, there are a number of different facets to the ddutyT. These are the obligation to respect (not to

violate the right); protect (respond to infringement by third parties) and fulfil (establish systems to ensure meaningful access to the right).59

Article 2(1) International Covenant on Economic Social and Cultural Rights: General Comment 4.


equally and on a non-discriminatory basis is not subject to the same caveat of progressive realisation as

Art.2(1) but takes effect as soon as a country ratifies the covenant.60

Art.2(2) reflects ICESCR’s emphasis on promoting the rights of the most vulnerable groups in society

(to which people with mental illness clearly belong). It also requires interpreting the equality guarantee

to ensure bsubstantiveQ–as opposed to bformalQ–equality. Substantive equality involves the elimination

of structural inequalities and social and economic disparity rather than simply ensuring equal treatment.

Substantive equality can, therefore, require the introduction of special measures, such as affirmative

action or reasonable accommodation, to permit groups who have been historically disadvantaged to

enjoy the same rights as other members of society.

In New Zealand, issues relating to discrimination and equality are addressed by the Human Rights Act

1993 (HRA) and the New Zealand Bill of Rights Act 1990. Until 2002, when an amendment extended

the application of the HRA to the public sector, the prescriptive nature of the legislation significantly

limited the possibility of dealing with discriminatory government policies. This changed with the

enactment of the Human Rights Amendment Act 2001.

The HRA, through a publicly funded complaints system, can now be used to challenge policies not

only of government, but of any public body acting bpursuant to an enactmentQ. This means that the

Human Rights Commission (which is charged with administering the HRA) would be able to challenge a

district plan, for example, which seeks to exclude housing for people with mental disabilities. However,

whether it would also allow the directing of funding towards supplementing adequate community care is

another question.61

The New Zealand Human Rights Commission was one of the earliest national human rights

institutions established. This is reflected in its enabling legislation which was based on a traditional

model that emphasises the investigation and resolution of complaints. Although changes brought

about by the 2001 Amendment extended the Commission’s role, the Commission’s jurisdiction

could be enlarged even more to specifically promote social and economic rights.62

The ICESCR Committee on Economic, Social and Cultural Rights issued General Comment No.

10 on the role of national human rights institutions in the protection of economic, social and

cultural rights, in 1998.63 In Comment No. 10, the Committee expressed the concern that national

institutions often neglected social and economic rights, or accorded them a low priority. To counteract

this, the Committee recommended bfull attention be given to economic, social and cultural rights in all of

the relevant activities of these institutionsQ and called on States to confer appropriate roles on national

institutions to permit them to carry out this function. It identified a number of ways this could be

achieved, including identifying national benchmarks against which the realisation of the rights could be

measured, providing technical advice and carrying out surveys.

60International Commission of Jurists, Limburg Principles on the Implementation of ICESCR and the subsequent Masstricht Guidelines.

61As happened in US in Olmstead V.L.C., 527 U.S 581 (1999) 138 F.3d 893. In Olmstead the Supreme Court held that not placing people with

mental disabilities in community settings when this was the best option, amounted to discrimination under the ADA. Although the statutory

wording was not the same as in New Zealand, the Court emphasised that the decision was not based on constitutional grounds but on

interpretation of the legislation. It also commented that resource limitations were not conclusive and that what was available had to be

distributed bequitablyQ.62

The Commission continues to deal with social and economic rights tangentially, for example, by endorsing reasonable accommodation for

people with disabilities or health programmes designed to benefit disadvantaged groups.63

UN Doc.E/C.12/1998/25 (1998).


Arguably, the New Zealand Commission could carry out most–if not all–of these functions under its

existing legislation. However, the importance of the social and economic rights could be emphasised by

either amending the legislation to include the type of provision found in South Africa–which confers on

the South African Human Rights Commission the ability to monitor state action which taken to

implement the social and economic rights contained in the Constitution–or by the addition of another

ground of discrimination designed to address economic inequality.

Introducing a provision similar to the South African section in the New Zealand legislation would

probably be excessive given that a significant factor in South Africa was the attempt to redress the legacy

of the apartheid regime. The addition of an extra ground is perhaps more realistic. This was one of the

options proposed in Canada to allow the social and economic rights to be addressed, particularly in

relation to people who are poor and marginalised. Indirect discrimination on this ground would highlight

many systemic issues faced by people with mental illness.

8.3. Development of an optional protocol to ICESCR

Implicit in the international instruments is the assumption that if the rights they protect are

violated a remedy is available. In the case of civil and political rights this is guaranteed in the

Covenant itself. The ICESCR does not have such a provision, but mechanisms have been developed

for addressing violations of socio-economic rights in many countries. However, as has been

demonstrated, one of the most potentially effective, the Courts, is difficult to invoke because of the

judiciary’s reluctance to intervene in what they see as the domain of the executive, while the State

reporting procedure, the other obvious complaints mechanism, is complex and does not result in a

legally binding outcome.64 Such factors have led to a re-evaluation of how best to promote compliance

with ICESCR.

For some years now the UN has been considering the development of a draft optional protocol

to ICESCR.65 Optional protocols establish a complaints mechanism which allows individuals or groups

to complain about non-compliance with the relevant treaty to the appropriate international body, if

they have exhausted all the available domestic remedies. The optional protocol mechanism already

exists for a variety of international instruments,66 but the complexities of the socio-economic rights,

and the potential economic implications if a State is found to have abdicated its responsibilities in

relation to such rights, have hampered the development of an optional protocol for ICESCR.

Despite the fact that there has been a lengthy resistance to the idea of an optional protocol, decisions

such as the Treatment Action Campaign case–which have led the UN independent expert to conclude

that all the rights guaranteed under ICESCR are bessentially justiciableQ67–and increasing public

pressure, particularly from civil society, to hold governments accountable for their international

64The State reporting procedure involves the State in question preparing a report on compliance with the Covenant. This is considered by the

UN Expert Committee with responsible for monitoring performance which develops a number of questions based on the information in the

report. The information in both processes is provided by the State although there is a process which allows NGOs to have input. The committee

then issues concluding observations on the State’s performance but there is no mechanism for enforcement.65

See reports of the Independent Expert (UN docs. E/CN.4/2002/57; E/CN.4/2003/53) and comments in M. Craven, supra note 33, at xii.66

Instruments which provide an optional protocol mechanism are the Covenant on Civil and Political Rights, the Convention on the

Elimination of All Forms of Discrimination Against Women, the Convention on the Rights of the Child, the Convention Against Torture and the

Geneva Convention.67

E/CN.4/2003/53 at para. 51.


commitments68, suggest that it is now simply only a matter of time before an optional protocol is

introduced. Certainly the most recent comment on the development of an optional protocol suggests that

justiciability does not pose an insurmountable obstacle.69 When (or should) this happen, it will provide a

significant mechanism for advancing the provision of satisfactory community care for people with

mental illness.

9. Conclusion

Although New Zealand has mental health legislation that is premised on a commitment to community

care, the nature and quality of the care available has been compromised by inadequate resourcing. There

has been little legal challenge of decisions involving resource allocation in this area and traditional ways

of accessing further resources, such as lobbying or law reform, have not always been successful.

The increasing recognition of international human rights standards may provide a potentially more

effective vehicle for achieving change. While the issue of justiciability of economic and social rights is

likely to remain a stumbling block, the development of alternative mechanisms–such as an optional

protocol–could mitigate somewhat the effect of limitations created by the concept of progressive

realisation. The most realistic prospect of achieving change, however, is by a government commitment

to applying a rights based model when developing social policy.

68See comments, for example, by S. Leckie, Identifying Violations of the ICESCR, 20 Human Rights Quarterly 81, 83 fn 7.

69P. Hunt, (Special Rapporteur), The right of everybody to enjoy the highest attainable standard of physical and mental health, UN Doc. A/58/

427 at para 83.

What does the “right to health” have to offer mental health patients?

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