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Participation and Human

Rights in Mental Health


A paper by
Liz Brosnan

Edited 12/10/2010

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Participation, Mental Health and Human Rights

Liz Brosnan

Contents

Introduction ..................................................................................................................................................... 3

Human Rights Theory ...................................................................................................................................... 3

Disability and Human Rights............................................................................................................................ 8

Human Rights and Mental Health ................................................................................................................... 9

Human Rights Based Approaches.................................................................................................................. 11

Conclusion ..................................................................................................................................................... 14

References ..................................................................................................................................................... 15

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"Participation and active involvement in the determination of one's own destiny is the
essence of human dignity" Mary Robinson

„[A]ctive and informed participation is an integral component of health systems, as


well as the right to the highest attainable standard of health. States have a human
rights responsibility to establish mechanisms that facilitate and enable participation in
health-related planning, policy-making, implementation, monitoring and
accountability. These mechanisms must be accessible to all those affected, including
disadvantaged individuals, communities and populations, as well as patients and
health workers.‟ Paul Hunt UN Special Rapporteur on the right
to the highest attainable standard of health (2002-2008)

Introduction
Marginalised and oppressed groups have much to gain from engaging with and becoming familiar
with human rights discourses. Since the Universal Declaration of Human Rights was adapted by the
UN assembly in 1948 much has been written about, and indeed tested in the courts, about what
human rights mean for marginalised and oppressed groups. The most recent Convention On the
Rights of People with Disabilities, signed into international law in 2008, in many ways illustrates the
extent to which human rights laws have evolved into instruments that can provide remedies for
failures of government to either positively or negatively provide for people's rights: perhaps more
importantly human rights discourses provide opportunities to help people improve their lives because
of the moral persuasion that can be used to effect change. This paper seeks to understand and
explain how the human rights frameworks can offer a different way for mental health activists to
engage with the system and influence improvements in how care is delivered. Before considering
what benefits there may be for advocates of change in adopting human rights-based approaches it
would be worthwhile to examine briefly some of the concepts and debates around what is meant by
human rights and how they have been understood by legal theorists. Some of the tensions and
paradoxes inherent in the discourses and practices of human rights are also discussed as they emerge
in the literature and empirical research.

Human Rights Theory

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Donnelly (2003) discusses the general principles of human rights in terms of their impact on
individuals and society. Rights holders can be said to be entitled to X, e.g. equal access to adequate
healthcare, while duty bearers have an obligation to provide or move towards providing X, in this
case, equal access to adequate healthcare. Rights are held by individuals and the individual can claim
their rights from the duty bearers and seek legal remedies if they are not forthcoming. Rights
empower, not just benefit, those who hold them because when they claim them things happen. The
ideal situation is when rights are the background upon which the state provides its services. It is
when the state does not provide, when a right is not respected, that human rights are most potent.
When a right is absent, claiming one is a powerful action, even if just at moral or symbolic level.
Donnelly describes a state of „objective enjoyment‟ of rights where the right, for instance to vote in
democratic elections, is offered by the state without any reference to its duties, therefore no action is
required by the rights holder to assert their right, (except to vote). This is the most favourable
position in terms of the rights holders as the right is enjoyed without effort, it is usually taken for
granted in these cases. It is when rights are not respected by states that rights holders may need to
take action to demand, to „assertively exercise‟ the right. This is where the power of human rights
law is most potent, in demanding that the state actively respect a duty they have towards fulfilment
of a right.

Under the Universal Declaration model of Human Rights as described by Donnelly (2003), there are
some core features of human rights which are understood as given in the discussions of them and the
ways they might be used. Human rights are considered to be equal, each right is of equal stature, no
one right is of more importance than another: they are inalienable, they cannot be taken away from
any person: and they are universal, every human being has the same rights, they apply to everyone
by virtue of being human. As well as being as „moral rights of the highest order‟, which „imply a
manifesto for political change‟, Donnelly argues that human rights rest on an a priori moral (and
international legal) entitlement. They can be used through moral arguments to secure legal
entitlements. Donnelly also emphasizes that human rights form part of an independent and
indivisible whole, not a menu, prohibiting states from deciding which rights they will recognize or
which they would ignore. Therefore social economic rights are on an equal basis with civil and
political rights.

Another feature of rights that Donnelly outlines is the distinction between positive and negative
duties of states associated with every right. Traditionally, negative rights, where the State apparently

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desists from action, for example, prohibiting torture, or police brutality, were argued by conservative
legal theorists such as Cranston, (1964), and Bedau (1979), to be cost neutral therefore more likely to
be realisable than more costly measures, those seen to be positive rights implying duties of provision
on States, for example to provide adequate health care. However, the negative rights do imply action
on the part of the State, to train the police forces in antidiscrimination policies, in non-conflict
resolution etc. Complying with these negative duties is therefore a costly exercise as Holmes and
Sunstein (1999) have illustrated in the US context. And under the UN system, resource arguments
are not acceptable justifications for inaction: states are obliged to demonstrate that they are making
reasonable movement towards progressive realization of the rights. Technically this point is outlined
in the International Covenant on Economic and Social Rights (ICESCR) but it is accepted as
applying to States generally.

Claiming rights, and the complex question of what rights are justiciable, or amenable to legal
adjudication, is a complicated matter because it involves the interaction of the courts and other
branches of the state to resolve questions, in the Irish context, about conflicts between different
interpretations of constitutional text and judicial precedent. International human rights laws are yet to
be used as common practice by Irish judges in arriving at their decisions, in part because many such
laws have not been incorporated into Irish law by the Oireachtas. Because exercising rights through
legal action requires an interpretation by individual judges one would need to have an expectation of
a positive outcome, which is fairly remote given the conservative nature of the current Supreme
Court in Ireland. By conservative I mean that the Court understands its role in narrow terms, failing
to move beyond a restricted, traditional, liberal interpretation of the constitution, indeed often
arguing to protect the State against citizens‟ rights. As we can see later, it is questionable if it is
worth getting a result that sets back the social progress of a movement towards realising rights,
especially for marginalised and oppressed groups. While many successes have been achieved in
different jurisdictions in human rights advocacy, for example in the US in relation to racism, by the
1980s Critical Race scholars were writing about the rolling back of gains made earlier, Delgado and
Stefancic(1998). There appeared to be a promising direction in Irish law in a series of cases in the
1980s and 90s to pursue the state‟s obligation to provide for the needs of troubled children and the
right to education, resulting in decisions by several Justices to hold the State to account for failures to
provide for vulnerable children‟s rights. In July 1998, Justice Kelly issued an order to force the
Minister for Health to provide sufficient accommodation for the children appearing before him in
order to vindicate their constitutional rights, and he concluded his statement „It is no exaggeration to

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characterise what has gone on a scandal…. I have come to the conclusion that the response of the
Minister to date falls far short of what this Court was reasonably entitled to expect concerning the
provision of appropriate facilities for young people with difficulties of the type with which I am
dealing.‟ (Kelly 1998, cited in O Sullivan 2009 p 253-4). However this direction of ruling on the
side of the rights of the individual against the State was firmly stalled by Supreme Court majority
decisions using the reasoning of judicial separation from the Executive branch of the State, Whyte
(2006), and Mullally (2004).1

Before leaving this brief discussion of human rights, it is worth noting two other themes of critique
in the scholarship around human rights. Firstly, a significant critique analyses the discourses within
which rights are framed. Siobhan Mullally (2004) reviews various debates within feminist
scholarship which critique the separation of the „ethic of care‟ from the „ethic of justice and rights‟ in
order to argue for a normative reconstruction of the legal sphere to include a „politics of recognition‟
of diversity and discrimination of women bound by networks of reciprocal obligations. The concept
of the „ethic of care‟ was first articulated by Carol Gilligan (1982), who described a style of moral
reasoning that considers the individual in relation to others and the interdependent relationships we
all have. This moral code of caring and the maintenance of relationships is juxtaposed to the
prevailing ethic of justice and rights which sees the individual as separate and autonomous, with
relationships being either hierarchical or contractual. Neta Ziv also points to the individualist -
liberal conceptualisation by which rights correspond to the fulfilment of responsibilities, with the
individual assumed to be autonomous and independent, achieving choice and participation through
maximising the opportunities available. She points out how social rights are termed as freedoms,
„freedom from want for a decent standard of living,‟ or „freedom for decent work without
exploitation‟, reflecting the managerial mindset of liberalist doctrines, Ziv (2007 p 370). This
approach fails to recognise the concept of capabilities, people's abilities to pursue freedom, the
constraints in particular on people with disabilities and others in need of protection from harm or
material deprivation. Amartya Sen (1992) has developed a concept of justice that critiques this
liberal notion, calling for recognition of the actual power or ability of the person to do certain things
that can improve their situation or overall well-being. Ziv has developed Sen‟s concept of justice as

1
Decisions in Sinnott v Minister for Education [3] and TD v Minister for Education [4] in which a majority of
the Supreme Court judges decided that the executive branches of government could not be held to account
for failures to provide educational rights to children by the judicial branch are discussed in some detail by
Gerry Whyte (2006) in (2006) 13(1) DULJ 1 Article: THE ROLE OF THE SUPREME COURT IN OUR DEMOCRACY: A
RESPONSE TO MR JUSTICE HARDIMAN : GERRY WHYTE

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it operates in relation to the human rights of people with disabilities, developing the question of an
ethics of care which regards people as interdependent, with everybody likely to require and be reliant
on others for care and support at different stages in their lives. While individuals are rights holders,
the practice of human rights and in particular human rights-based approaches are realised and
exercised in webs of social relationships (Nedelsky 1993; Minow 1987; Minow & Shanley 1996).
White and Tronto (2004) offer a valuable contribution to framing a substantive argument for the
inclusion of recognition of the role caring plays in society and its relationship with rights and justice
considerations. They highlight many of the important consequences of this omission and indeed
point to failures of rights discourse as meaningful for vulnerable groups without a re-ordering of the
political and social priorities to account for this invisible aspect of how our lives are lived in relation
to others.
Another theme within critical legal scholarship is illustrated by Pieterse. He points out „the
transformative potential of rights is significantly thwarted by the fact that they are typically
formulated, interpreted, and enforced by institutions that are embedded in the political, social, and
economic status quo‟, Pieterse (2007 p 797). Critical legal scholars have demonstrated how liberal
rights discourse has been used to „silence challenges by vulnerable sectors of society to existing
social power structures and, second, to thwart state efforts at social redistribution‟, Pieterse (2007 p
800). He illustrates how the South African Constitutional Court, in many ways a shining example of
judgments positively influencing socioeconomic policies, interpreted the human rights obligations in
terms of the State‟s abstract procedural duties to progressively realise rights rather than immediately
enforce concrete entitlements. In other words by showing it was developing policies to improve
access to health rights, the State could argue it was meeting its duties to respect human rights. And
the Applicants could die, or remain homeless, meanwhile.
Yet although critical legal scholarship may question the advances made and the real danger of
appropriation by liberal discourse or dominant interest groups, Patricia Williams offers a powerful,
eloquent and moving defence of human rights and their role in the emancipation and empowerment
of dispossessed groups like African Americans. Her argument is incontestable.
„'Rights' feels so new in the mouths of most black people. It is still so deliciously empowering
to say. It is a sign for and a gift of selfhood that is very hard to contemplate reconstructing
(deconstruction is too awful to think about!) at this point in history. It is the magic wand of
visibility and invisibility, of inclusion and exclusion, of power and no-power. The concept of
rights, both positive and negative, is the marker of our citizenship, our participatoriness, our
relation to others‟.

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Williams (1987 p 431)


I would argue this is how most people with disabilities feel about the newly won recognition for their
rights in law with the CRPD.

Disability and Human Rights


The social model asserts that disability is a product of disabling environments, rather than an
inherent attribute of a person (Oliver, 1990; Oliver and Barnes, 1998). The social model was a major
development of the Disability Movement which challenges the paternalistic and reductionist
conception of people enshrined in the medical model of disability, providing an intense sense of
liberation from attention on individual deficits of disabled people. Space does not permit adequate
discussion of the immense importance of this development here, much has been written about its
enormous impact in changing the paradigms and discourses around disability. Its influence is
obvious within the Convention on the Rights of People with Disabilities which for the first time
adopts a social model of disability in international law. There is however an inherent tension
between asserting the importance of environmental restrictions on individuals and recognising the
costs for disabled people of asserting and exercising their rights. For instance, Ruth Baily (2010) has
described how recognition of the effort the disabled person must make with and through their bodies
is not addressed in the social model of disability, and she theorises about recognition of „doing
impairment‟, or „doing energy management‟, actual daily practices by people which allow them
participate in daily activities taken for granted by able-bodied people. This recognition of the reality
of „doing the body‟, or indeed the broader concept of the ethics of care are sharp critiques of the
dominant language and discourses around disability and human rights.

Kayness and French are part of a substantial body of writers whose work that focuses on the right of
disabled people to participate, pointing out the central importance of the concept of citizenship in
contemporary theories of disability and disability rights. Claiming citizenship, and the dignity and
equality it entails, is fundamental to overcoming dehumanisation and exclusion. For persons with
disability, the effective denial of citizenship through failure to accommodate affects of impairment,
means a denial of the opportunity to participate in everyday activities but also in public policy
formulation and decision-making which affects their lives. The effective exclusion of persons with
disability from public policy formulation and decision-making processes is a profound distributive
injustice, denying them the opportunity to argue for their needs and rights in the contest for social

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resources, and for the reform of oppressive laws. This „wrong‟ is intensified by the exercise of overt
and covert executive power over the lives of many people with disability by means of compulsory
assistance (or coercive treatment), or, more subtly, through effective control over the social resources
that sustain people with disability. This history of disempowerment and paternalism has resulted in a
deep suspicion of administrative power and the demand for radical participation, which is
encapsulated by the credo „nothing about us without us‟: now a universal claim of the disability
rights movement internationally and a fundamental principle of equality (Kayness and French 2008).

Human Rights and Mental Health

Early recognition of disabled people, including people with mental illness, in human rights law
tended to be paternalistic, and legitimise segregation through specialised services and institutions.2
While the 1991 adoption by the UN General Assembly of the Principles for the Protection of Persons
with Mental Illness and the Improvement of Mental Health Care (Principles) was the first time
mental health conditions were included in human rights discourses they were controversial as they
enshrined the paternalistic medical model. The Principles established mental health care standards
and procedural guarantees for the protection of people with mental illness against human rights
abuses in mental health facilities, such as excessive or prolonged use of physical restraint or
involuntary seclusion, sterilisation on the grounds of mental illness, psychosurgery and irreversible
treatment. However, the continued focus on treatment and protection has meant the Principles have
been critiqued by many legal theorists, (Rosenthal and Rubinstein 1993, Gendreau 1997, Harding
2000) and rejected by service user activists for their perpetuation of a medical model of disability.
Harding (2000) critiqued the Principles in several ways: they lacked formal international treaty
status; there was no requirement on States to adopt them as minimum standards; in relation to
consent to treatment they removed rights rather than protect them; and finally the failure to provide
for a redress or any form of monitoring inspection and supervision by an independent international
body.

2
There is an active debate as to whether mental health conditions should be considered a disability. Many mental
health service users do not want to identify as having disability particularly as the condition is usually episodic, but most
accept that mental illness causes impairments, and accept the benefits that accrue from the protection of rights
afforded by the CRDP.

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The Convention of the Rights of People with Disabilities (CRPD) covers mental health conditions,
which is a core strategy of the disability movement: the inclusion of all people with disabilities in
policies and frameworks rather than developing impairment specific frameworks or principles.
Kayness and French (2008 pp 29 -30) reviewed the process of the drafting of the CRPD and their
account of the negotiations and compromises the activist must engage in when seeking to influence
policy or laws is illuminating. Consider Article 17. It was perhaps the single most contentious
Article negotiated by the Ad Hoc Committee, and, in large part as a consequence of this, its text is
the most limited of the substantive human rights Articles. The Article is confined to a simple
statement of principle with no specific application of this principle to the human right violations it
purports to address. Due to irreconcilable differences and implacable opposition to prohibiting the
use of compulsory treatments in the field of mental health, the Ad Hoc Committee abandoned an
earlier proposal that would have required the strict regulation of compulsory treatment. The
International Disability Caucus (IDC) and World Network of Users and Survivors of Psychiatry
(WNUSP) sought the ultimate goal of the CRPD „outlawing‟ all forms of compulsory assistance, but,
when this proved impossible to achieve, they adopted the alternative lobbying stance that there ought
to be no reference to compulsory treatment in the CRPD as this would provide it with legitimacy.
One of the most critical areas of human rights violation for people with disability, the use of coercive
State power for the purpose of „treatment‟, therefore remains without any specific regulation. This
issue of positive rights to treatment: to be able to access the choice in the form of treatments
available, to have appropriate care in the community, to have alternatives to medication only
treatments , and the corollary negative right, to be free from compulsory treatment are core human
rights issues within the mental health field.. 3

It is evident that much has been gained by the leverage of human rights in international and national
legal and policy domains of society. There are also significant criticisms of the limitations of human
rights discourse, including suggestions that the more powerful can appropriate rights talk to defend
their privileges or to assimilate and subsume social movements (Pieterse 2007). Patricia Williams
articulated clearly and passionately the power an appeal to human rights has for disposed people.
Neil Stammers argues for the need to examine the role and potential for social movements to

3
The issue of informed consent to treatment and use of non-consensual psychiatric treatments as a human rights
violation is argued by Tina Minkowitz in her paper discussing the international protections of human rights afforded
people with psychosocial difficulties under the CRDP. See
http://psychrights.org/Countries/UN/TMinkowitzOnNonconsensualPsychInterventions.pdf

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challenge and redefine how human rights can contest some of the power plays of dominant interest
groups. Substantial gains have been made by adapting a social movement/community development
approach to the use of human rights. A social movement has emerged around the Human Rights
Based Approach, which seeks to engage local people on the ground with the ideas of human rights
activism and it is worth looking at what has been achieved in this arena, in particular through the
work of the Participation and Practice of Rights Project in Belfast.

Human Rights Based Approaches


The right to participate in decisions which affect one‟s life is both an element of human
dignity and the key to empowerment – the basis on which change can be achieved. As such, it
is both a means to the enjoyment of human rights, and a human rights goal in itself. Amnesty
International (2006 p 48)

Human rights based approaches (HRBA) seek to ensure that human rights are a central plank
underpinning policymaking and political choices by ensuring that people have the political,
institutional and material resources to demand, exercise and monitor their human rights, and to
actively participate in decision-making processes. It requires the integration of minimum standards
into all plans, policies, budgets, processes and institutions. By definition HRBA is as concerned with
the process as the outcome. In the context of mental health services for instance, HRBA requires that
strategies and goals be explicitly based on the norms and values of international human rights law,
but also that those strategies be identified, applied and reviewed with active and informed
participation of the relevant communities, in particular those who use services. The use of human
rights language and participatory processes empowers rights holders, to both assert their human
rights and hold accountable those legally responsible for their delivery.

The five inter-connected principles, which have been internationally recognised as forming the core
of HRBA are: express application of the international human rights framework; empowerment;
participation; nondiscrimination and prioritisation of vulnerable groups; and accountability. I will
examine just one of these principles in more detail as it specifically relates to the emergent concept
of user involvement in mental health services.

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The active and informed participation of individuals, communities and populations is an integral
component of the right to the highest attainable standard of health (Hunt 2008). Helen Potts (2008)
points out that this includes participation in identifying overall health strategy, agenda-setting,
decision-making, prioritisation, implementation and accountability. She clearly distinguishes
participation in health policy development from education, informing or consultation, as none of
these concepts guarantees that the „voice‟ of individuals and groups will be heeded, or that there will
be follow through on any information gathered during the conduct of these activities. Potts describes
the learning from several projects that used HRBAs to look at participation in health policy
development in different countries. She argues that institutional mechanisms must be put in place to
ensure participation is fair. This must address three aspects: agenda setting; rule making and
facilitation; and discussion. Participation in the context of the right to health permits a preliminary,
predetermined agenda because a starting point is necessary in policy formation but fairness means
allowing everyone the same chance to put their concerns on the agenda. Rules must be established to
overcome the difficulties all participants can have as a result of personal, interpersonal and
institutional dynamics, setting out how discussions are managed and decisions reached. Appointing
an independent facilitator can also help ensure everyone has a chance to have their voice heard.
Transparent information on which to base decisions must be available. This means complex
epidemiological data or health management systems are explained in an accessible manner, free of
jargon, and that community perspectives and understandings of the health issues are available to
health services officials. Health service providers and government departments are firmly committed
to governance through policies and procedures, including ways to measure progress against these in
the form of indicators and benchmarks. Through the development of policies which use indicators
and benchmarks that make intuitive sense to people and are relevant to their concerns, they can show
how the „voices‟ of people and groups are listened to in the process and how the final decision are
made.

Potts reports on the way the HRBA worked in several health related projects including one of the
Participation and Practice of Rights (PPR) projects in Belfast, which focused on the needs of
residents of the Seven Towers housing project. Another project of the PPR, a mental health focused
project, reported by McMillian et al (2009), worked with the Public Initiative for the Prevention of
Suicide–Greater Shankill Bereaved Families (PIPSGSBF) Rights Group to affect a change in policy
in Northern Ireland in how mental health services provide follow-up care. The background to this
project, concerned with reducing deaths by suicide, is a complex and weighty set of policy

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documents and government exercises which make frequent references to user involvement, which
however had not resulted in any changes for people on the ground. This group, in collaboration with
PPR, demonstrated how participatory processes, from the bottom- up, resulted in concrete, user
defined outcomes and indicators. These indicators were established using WHO designed
instruments and indicators to monitor governments‟ progress on international human rights
commitments. Local people, supported by the PPR, used these official measures, based on action
research carried out by the group themselves on the mental health needs of their communities to
place the spotlight back on the State. Their experiences and research helped them identify four core
concerns around mental health services in Northern Ireland: follow-up appointments: complaints,
information from General Practitioners, and service user participation. They developed six
indicators to hold the government to account for progressive realisation of these issues which they
saw as critical to realisation of their human rights. McMillian et al (2009) describe how the group
made significant progress on the first issue, specifically their campaign to have a “card before you
leave” appointment system for mental health patients implemented across the province so that people
would feel connected to and supported by the services. They took three key decisions after
consultation on their indicators with an international panel of mental health and human rights
experts. Firstly, by holding the Minister for Health directly accountable for delivery on their
indicators, he used his political authority to overcome the resistance of the Trust to making
progressive changes. As a result he announced the introduction of the „card before you leave‟ scheme
a few short months after the media campaign set up by the group, and made mental health follow-up
care one of his top 12 health priorities. The second key decision the group took was to avoid the
existing government structures for consultation as they had previous experience of the failures of
these existing mechanisms. McMillian et al define “existing consultative structures” as „those
structures, bodies, and forums designed and led by the government, which include mental health
service users as members and which have the express purpose of increasing “user involvement” in
policy processes‟, McMillian et al (2009 p 65). The group‟s issues and concerns had been frequently
raised through these fora in the past without result. Instead, the group sought a ministerial liaison, a
top level civil servant who had specific responsibility to deliver on their indicators. Finally they
decided not to rely solely on the Minister or the liaison official to deliver but also exerted outside
pressure through a successful media campaign and alliances with other community groups, including
international advocacy groups, trade unions etc.
An interesting aspect of this project was the rejection of the existing consultative structures.
McMillan et al describe some of the barriers to participation experienced by members of the

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PIPSGSBF Rights Group. These included having decisions made without them, being made to feel
stupid at meetings, the chair always filled by someone on the government side, having to constantly
repeat their stories, and no real information about obstacles presented. McMillan et al call for further
research on barriers such as these and whether they are representative of wider participation
processes. Top down consultative processes have often been criticised as failing to provide genuine
opportunities for participation, whereas the projects developed in partnership with PPR from the
ground up, building capacity in local groups through HRBA, supporting them in developing their
own user led benchmarks and indicators can be the beginnings of real participation for service users.
In addition this project demonstrated real power subversion by adapting the WHO measures and
indicators and using them to hold the government to account. There is a pressing need for more
examples of participation by people affected by mental health issues in projects which engage with
the language of human rights used to leverage change towards progressive realisation of improved
mental health services.

Conclusion
This paper has examined some of the issues and paradoxes of human rights discourses and practices.
Initial enthusiasm for the expectation that human rights law would lead to progressive realisation of
improvements in people‟s actual circumstances has been tempered by the reality of limited liberal
interpretations by courts and indeed outright subversion of rights talk by dominant interest groups,
including the state itself. This discourse was also shown to be limited by its failure to include the
standpoint of women, or other marginalised groups such as black or disabled people, for instance the
need to include an ethic of care and a concrete elaboration of people‟s realities and needs into
abstract human rights discourses. This has begun to happen by the use of HRBAs by social
movements, illustrated in the empirical discussion of the PPR projects in Belfast. Here people on the
ground showed the power of HRBAs, bypassing the established participation mechanisms, and using
official indicators drafted by the WHO and adapted by the local people to hold the government to
account to leverage some of the changes they decided could meet their needs. These examples of
human rights in action from the ground up demonstrate the continued power of human rights, (to use
Patricia Williams‟ words again) to be the„magic wand of visibility and invisibility, of inclusion and
exclusion, of power and no-power.‟

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References
Amnesty (2005) Our Rights, Our Future. Human Rights Based Approaches in Ireland:
Principles, Policies and Practice, Dublin: Amnesty International, Ireland.

Bailey, Ruth (2010) Doing Impairment: Towards a Non Normative, Socially Shaped
Understanding of Impairment. Paper presented at BSA Annual Conference „Inequalities & Social
Justice‟, 7-9 April 2010, Glasgow Caledonian University.

Bourdieu, P. and Terdiman, R (1987) The Force Of Law: Toward A Sociology Of The
Juridical Field, Hastings Law Journal 805

Burns, J. K. (2009) 'Mental health and inequity: A human rights approach to inequality,
discrimination, and mental disability', Health and Human Rights, 11(2), 19-31

Butler, F. (2005) Improving Public Services: Using a Human Rights Approach, London:
Institute for Public Policy Research.

Delgado, Richard and Jean Stefancic (1998) „Critical Race Theory: Past, Present and Future‟,
Current Legal Problems 51, 467-91.

De Wispelaere, J. and Walsh, J. (2007) 'Disability Rights in Ireland: Chronicle of a Missed


Opportunity', Irish Political Studies, 22(4), 517 - 543.

Donnelly, Jack (2003) Universal Human Rights in Theory and Practice, 2nd edition Cornell
University Press: Ithaca, N.Y.; London.

Dhanda, A. (2008) 'Constructing a New Human Rights Lexicon: Convention on the Rights of
Persons with Disabilities', International Journal On Human Rights, 8, 42-59.

Ellis, J. A. (1988) Chronicling a Movement for Civil Rights, Law & Society Review, 22, 5,
1027-1032

Harding, T.W. (2000) Human Rights Law in the Field of Mental Health: A Critical Review,
Acta Psychiatr Scand, 101,24-30

Holmes, S. & Sunstein, C. R. 1999. The Cost of Rights: Why Liberty Depends on Taxes, New
York, W. W. Norton & Co.

Kayess, R. & French, P. (2008). Out of Darkness into Light? Introducing the Convention on
the Rights of Persons with Disabilities. Human Rights Law Review, 8, 1-34.

McMillan, F. V., Browne, N., Green, S. and Donnelly, D. (2009) 'A Card Before You Leave:
Participation And Mental Health In Northern Ireland ', Health and Human Rights, 11, 61- 72.

Minkowitz, T. 2007. The United Nations Convention of the Rights of Persons with Disabilities
and the Right to Be Free from Nonconsensual Psychiatric Interventions. Syracuse J. Int’l L. & Com.,
34, 405-428.

Page 15
Participation, Mental Health and Human Rights

Liz Brosnan

O‟Sullivan, E. (2009) Residential child welfare in Ireland, 1965-2008: an outline of policy,


legislation and practice: a paper prepared for the Commission to Inquire into Child Abuse. Available
on www.childabusecommission.ie/rpt/pdfs/CICA-VOL4-10.pdf accessed 22 Sept 2010.

Pieterse, Marius (2007) „Eating Socioeconomic Rights: The Usefulness of Rights Talk in
Alleviating Social Hardship Revisited‟, Human Rights Quarterly 29, 796-822.

Potts, H. (2008) Participation And The Right To The Highest Attainable Standard Of Health,
Colchester, Essex,: Human Rights Centre, University of Essex

Stammers, N. (1999) 'Social Movements and the Social Construction of Human Rights',
Human Rights Quarterly, 21(4), 980-1008.

Thomas, C. (2004) How is disability understood? An examination of sociological approaches,


Disability and Society 19/6, 569–583.

Williams, P. J. (1987) 'Alchemical Notes: Reconstructing Ideals From Deconstructed Rights',


Harvard Civil Rights-Civil Liberties Law Review, (Spring), 401-438

Whyte, G., (2006) The Role of the Supreme Court in our Democracy: A Response to Mr
Justice Hardiman, Dublin University Law Journal 28, 1-26

Ziv, Neta (2007) „The Social Rights of People with Disabilities‟ in Daphne Barak-Erez, and
Aeyal M. Gross (eds.) (2007) Exploring Social Rights: Between Theory and Practice (Oxford: Hart),
pp. 369-395.

Page 16