Keynote address II: Mental Health and Human Rights in Detention Centres

18 April, 2024, Amsterdam

Dear guests, dear colleagues,

It is a pleasure to address you today on behalf of the Office of the High Commissioner for Human Rights. My name is Elena Kountouri Tapiero, and I am the acting Representative of the UN Office for Human Rights in Europe. I thank the World Health Organization Europe for the invitation, as well as other co-organizers for continuing to push for a human rights-based approach to health care, including mental health care, in prisons and other places of deprivation of liberty.

Let me start by quoting the title of an article in the Economist magazine this week “death at the exit: prisoner’s health” which cites a Dutch study that found that prison has no net effect on inmates’ pre-existing health. The article says that basically if you go in unwell, you come out unwell and unprepared for what awaits outside jail.

In today’s societies across the world, we, as humanity, have still not seen a critical change in how mental health is perceived. There is a vicious cycle between discriminatory laws and social misconceptions, fears, stigma, including self-stigma, and prejudice. Often laws have a medicalized and sometimes criminalized approach to mental health challenges which have resulted in exclusion, institutionalization, coercion, and a lack of holistic and person-centered services and support systems in the community. These issues only begin to outline how we perceive mental health challenges and those who experience them.

There is still an overwhelming belief that mental health challenges somehow pertain to someone else and not to all of us. There is lack of acknowledgment that mental health is the area in which most of the health challenges occur in recent years, including in Europe. Yet, and therefore expectedly, this is the area in which there is still a vast space of visibility to be won and discrimination to be eradicated.

Many persons with mental health conditions and with psychosocial disabilities have also repeatedly experienced numerous human rights violations, affronts to their dignity and absence of appropriate support. From deprivations of legal capacity and informed consent, to coercive treatment and detention, to marginalization, and segregation. The challenge is how to remain visible to the systems and people around us and around them. National legislation related to mental health in every region of the world is still based on a coercive and institutionalized approach.

It is worth mentioning that OHCHR and WHO joined forces in 2023, to publish a Guidance and practical tool for countries to support their legislative efforts around mental health which uphold human rights. It is noteworthy that many countries are adopting measures for legal reform regarding mental health or are considering doing so. These measures are not always in line with human rights obligations. This publication aims to inspire a new pathway for national laws and policies and to provide practical guidance to do it. It hopes to inspire reform that is firmly grounded in human rights understandings.

The recent crisis of Covid-19 hitting the world at large, has tested our own resilience, as well as that of our health systems and mechanisms. Although societies have become more aware of just how much we were affected by restrictions, fear, solitude and effects of the pandemic, this crisis has also confirmed exactly how impactful the neglect of mental health has been, as well as how disproportionate that impact has been on different people and groups.

This leads me to my second point. The matter of access to human rights in prison and other detention settings has always been one of the longest standing. Whereas human rights standards draw a very clear line on where the legitimate and legal limitations of human rights start and where they should end, as well as the connection between dignity and accessing different rights and services in detention, the practice of States shows that there are still grave violations and risks.

Against a rather restrictive backdrop, the human rights standard of equal access to health care services, and even more so to specialized ones, remains still a far-away goal for the UN member States.

The magnitude of discrepancy between the human rights standards and practice is quite tangible as the normative scope of the universal right to health requires countries to address the health needs of the entire population, including groups that have specific health or healthcare access needs.The obligation to respect the right to health requires that States refrain from denying or limiting equal access for all persons, including prisoners or detainees, to preventive, curative and palliative health services. This includes free, timely and informed access to specialized mental health support services, based on the free and informed consent of each individual.

The worldwide prison crisis shows record numbers of people imprisoned globally (over 11.7 million) and 102 countries reporting prison occupation levels that exceeded 110 per cent. The number of unsentenced prisoners or pre-trial detainees has been rising - from 3.4 million people in 2019 to 3.5 million in 2021.

In such contexts, specific health needs of prisoners and detainees may arise not only from unsettling living conditions, over crowdedness, risks of violence or an unhealthy environment, but also due to lack of recognition of the right to health of a whole population in a situation of increased vulnerability. The background and cumulative impact of previous experiences of rights holders in detention include severe trauma, post-traumatic stress or social exclusion and instances of structural discrimination, which also come into play. Many of these experiences have never been addressed in the past.

Without deliberate and proactive efforts to address these gaps and shortcomings, people in prisons and detention may not access health services that are essential for them. The possible underlying economic, social and cultural factors and circumstances of mental health distress and discrimination must be given attention too.

Moreover, although a discriminatory denial of access to physical and mental health services to prisoners and detained population is chronic and widespread, it does not always proportionally affect everyone the same way.

Certain groups will require particular attention or will bear additional risks to their health, including mental health, owing to the heightened risk of discrimination and abuse. Those categories may include women, children and young people, older persons, people with disabilities, LGBTIQ+, to name only a few. The overall denial of access to mental health care will most likely be gravely exacerbated for those particular rights holders who face heightened risks to their health or those facing discrimination and neglect.

At the backdrop of the dire global prison situation, UN entities jointly developed the United Nations System Common Position on Incarceration. The Common Position is guided by international human rights law and is fully in line with UN standards and norms on crime prevention and criminal justice and the 2030 Agenda for Sustainable Development and its Goals.

This encouraging Common Position duly recognizes that prisoners’ need to have access to health services free of charge and of a standard of quality at least as high as that applicable to the rest of the community. These should include psychological support and sexual and reproductive health care, as well as access to essential medicines. Such access is particularly important for prisoners, as they often have poorer physical and mental health than the general public.

Prison health services need to be in a position to provide for the health-care needs of prisoners, including needs of a gender-specific nature. Health-care professionals in prisons must be guided by the same ethical and professional standards as those applicable to patients in the community. Such recognition is fully in line with the normative scope and intention of the universal human right to health. Let me conclude; while advocating towards equality and non-discrimination in healthcare in detention and prison setting, including care for mental health, and its essential and interrelated elements of availability, accessibility, acceptability and quality of all health care, we should remain fully aware that mental health care plays a crucial role in times before and after incarceration. We need to consider the full cycle, and address root causes of offending, to recovery approaches which allow individuals to gain and preserve control over their lives and autonomy, to people-centered efforts towards full and effective social reintegration. All these topics will be addressed during the next two days to make sure that former detainees do not come out of jail worse off than when they went in.

The UN is well placed to initiate, together with States, rights holders, including survivors of psychiatry and institutionalization, and people with lived experiences, civil society, programmes and policies that are holistic, deep-diving and far-reaching. And most importantly programmes and policies that are rooted in and driven by human rights.

Human rights are a tool that can support all efforts to rethink our approaches to mental health and enable the prevention and transformation of laws and practices towards ones in which human life, health and dignity of people deprived of liberty are not relativized and are made a full priority on an equal basis with others.

There is a spectrum of partners at regional, national and local levels, who are also present here, that could lead and inform our joint efforts. I know that together, we can make this an urgent task for all duty bearers.

Thank you.