Is There a Human Legal Right to Mental Health?

Abstract

While recent decades have seen an increased focus on the idea of rights to health and health care, these ideas were particularly advanced by the United Nations (UN) Convention on the Rights of Persons with Disabilities in 2006 and the importance that the World Health Organization attached to the essential role of law in advancing the right to health in 2017. The UN made explicit the rights of persons with mental illness in 1991 with its Principles for the Protection of Persons with Mental Illness and the Improvement of Mental Health Care. There are, however, potential disadvantages with legalistic and rights-based approaches to health and health care: protecting rights can be expensive (especially in courts of law), result in paradoxical unfairness (owing to unequal access to legal systems), diminish efficiency and increase opportunity costs (as scarce resources are diverted from care provision), lead to conflict between rights (such as rights to liberty and treatment in severe mental illness) and prioritise individual rights over families and communities in ways that are not always accepted in certain societies. Despite these issues, human rights still offer a credible, logical and generally helpful approach to issues of injustice, such as the unequal distribution of health care. Against this background, India commenced what is effectively the world's largest experiment in rights-based health care in 2018 when its Mental Healthcare Act, 2017 granted a legally binding right to mental health care to India’s population of over 1.3 billion people, one sixth of the planet's population. The legislation states that 'every person shall have a right to access mental healthcare and treatment from mental health services run or funded by the appropriate Government'. Realising this right will be complex and challenging in practice, but the experience in India will help inform future debates about the usefulness of rights to health and health care in improving the experiences of the physically and mentally ill around the world, especially among vulnerable groups such as older adults, children, the homeless and others.