The challenges faced by most mental health professionals working in corrections are daunting: impossibly large caseloads, physically unpleasant facilities, and institutional contexts that are less than sympathetic to the importance of mental health services. Gains that are made in staffing, programs, and physical resources have all too frequently later been swamped by the tsunami of prisoners with serious mental health needs. Particularly in these times of straitened budgets, legislators have been reluctant to provide the funding needed to ensure appropriate correctional mental health services. Overburdened staff are hard pressed in their capacity to respond even to psychiatric emergencies, much less to promote recovery from serious illness and the enhancement of coping skills. In addition, although prisons may effectively be the nation's mental health facilities, prison rules are still primarily the province of officials with little grounding in mental health principles. Mental health staff confront custodial practices and conditions that can make little sense - indeed can be antithetical to - comprehensive and effective mental health treatment.
What do human rights offer to beleaguered mental health professionals? Unfortunately, not a solution. But they do offer a cogent and powerful framework which supports professionals' efforts to treat properly the prisoners in their care.
Human rights are the rights that all people have simply by virtue of being human beings. They were first articulated in modern times by the Universal Declaration of Human Rights (UDHR), the international community's 1948 affirmation of the inherent dignity and the equal and inalienable fundamental rights of all persons. A number of international and regional human rights treaties have since codified these rights; states that are parties to the treaties must respect and protect the rights delineated in them. There are also international instruments that are considered "soft law" -standards to which states are not legally bound but which are recognized as providing authoritative guidance on human rights compliance.
Not surprisingly, given the origins of the modern human rights movement in the aftermath of the Holocaust, human rights treaties and the mechanisms for their fulfillment pay particular attention to the treatment of people involuntarily confined, especially in prison. Taken as a whole, human rights standards and their interpretation by treaty bodies and experts provide a comprehensive and effective framework for prison operations, as Andrew Coyle of the International Centre for Prison Studies demonstrates in his handbook for prison staff, "A Human Rights Approach to Prison Management." Obviously, prisons with abysmal physical conditions in which prisoners are treated with constant brutality fail to pass human rights muster. Fortunately, such prisons are rare in the United States. But many US prisons nonetheless fall below human rights standards, e.g., those that are unnecessarily harsh and destructive of prisoner well-being, are built around regimes of deprivation, callousness and lack of respect for prisoners, or are guided solely by a punitive ethos.
Several discrete but inter-related human rights concepts are particularly important for mental health professionals who work in prisons: human dignity, the right to rehabilitation, the right to the highest attainable standard of health, and the right to freedom from torture or abuse. Article 10 of the International Covenant on Civil and Political Rights (ICCPR), to which the US is a party, states that persons deprived of their liberty "shall be treated with humanity and with respect for the inherent dignity of the human person." The first of the eleven principles in the United Nation's (UN) Basic Principles for the Treatment of Prisoners states: All prisoners shall be treated with the respect due to their inherent dignity and value as human beings." Respect for the dignity of patients is, of course, also central to medical ethics. For example, the code of ethics of the World Medical Association states that physicians shall be "dedicated to providing competent medical service...with compassion and respect for human dignity."
Drawing from the concept of human dignity, Article 10 of the ICCPR affirms the "essential aim" of imprisonment shall be "reformation and social rehabilitation." Human rights principles thus mandate a positive goal for corrections, something beyond mere punishment through deprivation of liberty. A rights-compliant prison cannot be focused solely on security and safety. While those are necessary components of a well-run prison, the period of incarceration should prepare prisoners for successful reentry. As stated in the UN approved Standard Minimum Rules for the Treatment of Prisoners (the "SMR"), "the purpose and justification of a sentence of imprisonment...is ultimately to protect society against crime. This end can only be achieved if the period of imprisonment is used to ensure, so far as possible, that upon his return to society the offender is not only willing but able to lead a law-abiding and self supporting life....[the treatment of prisoners] shall be such as will encourage their self-respect and develop their sense of responsibility."
Mental health professionals obviously play a crucial role in rehabilitation for the substantial proportion of prisoners with or at risk of developing mental illnesses and disorders. As the SMR states:
... The medical services of the institution shall seek to detect and treat any physical or mental illnesses or defects which may hamper a prisoner's rehabilitation. All necessary medical, surgical and psychiatric services shall be provided to that end.
The right of prisoners to receive mental health services - and the concomitant obligation of prisons to provide such services - is also inherent in the right to health, one of the many rights which prisoners do not leave behind at the prison gates. The International Covenant on Economic, Social and Cultural Rights (ICESCR), signed but not ratified by the United States, recognizes the right of every person to "the enjoyment of the highest attainable standard of physical and mental health." (Article12). States should take specific steps to protect and promote health by instituting measures and providing facilities, good and services to meet health needs and by protecting people from unhealthy or dangerous conditions. Health care services should be available, accessible, acceptable, and of appropriate and good quality, provided by trained medical and professional personnel. The Economic, Social and Cultural Rights Committee, the ICESCR's monitoring body, has stressed that governments may not discriminate against prisoners or detainees or limit their equal access to preventive, curative and palliative health services. Indeed, by depriving people of their liberty, states take on a special responsibility to look after their health - in terms of the conditions under which they are detained and through the provision of health services.
On July 30, the United States signed the Convention on the Rights of Persons with Disabilities. Many of the provisions of the Convention have unique relevance for prisoners with mental disabilities. The Convention in Article 5, for example, prohibits discrimination on the basis of disability, and requires states to provide "reasonable accommodation" to persons with disabilities. The Special Rapporteur on Torture has pointed out that the lack of reasonable accommodation in detention facilities may increase the risk of exposure to neglect, violence, abuse , torture and ill-treatment.1 In addition, Article 15 of the Convention affirms the right to be free of torture or cruel, inhuman or degrading treatment or punishment, Article 16 of the Convention prohibits violence, abuse, and exploitation of persons with disabilities, and Article 17 recognizes the right of every person with disabilities to respect for his or her physical and mental integrity.
The failure to provide appropriate mental health services not only may violate human dignity, the right to health and the rights of the disabled, it may also amount to prohibited cruelty. Article 7 of the ICCPR, for example, states that no one "shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment," a prohibition that is fleshed out in the Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, to which the US is a party. Torture is defined as an act by which severe pain or suffering, whether physical or mental, is intentionally inflicted on a person for a specific purpose (e.g., to obtain a confession or as punishment) and with the involvement of a public official. Cruel, inhuman or degrading treatment, however, can exist in the absence of a specific purpose. If prisoners' mental health deteriorates and they endure serious psychological suffering because of a lack of staff to provide needed treatment, their right to be free of cruel or inhuman treatment may have been violated, regardless of the reason for the staff shortage.
Article 7 may also be violated if prisoners are confined under specific conditions that put them at high risk of psychological harm. Segregation, for example, with its lack of meaningful social contact, abnormal stimulus, unstructured days and extremely limited access to therapeutic interventions, can exacerbate symptoms of mental illness or provoke a reoccurrence.
Ethical principles of beneficence, non-malfeasance, and respect for the rights and dignity of all patients have led international and national professional organizations to affirm the ethical obligation of physicians to refrain from countenancing, condoning, participating, or facilitating torture or other forms of cruel, inhuman or degrading treatment Mental health professionals seeking to get patients removed from segregation or to change segregation policies can point to the their ethical obligation to not only attend to the mental health needs of their patients, but to protect them from inhuman treatment that violates Article 7.
The contrast between human rights guaranteed under international law and rights protected by the US constitution is striking. The Eighth Amendment's prohibition on "cruel and unusual" punishment is the principal source of prisoners' constitutional protection. The notions of human dignity which the courts have found inherent in the Eighth Amendment are cramped in spirit and breadth. Under current jurisprudence, officials have satisfied the constitution as long as they provide prisoners with a bleak diet of "the minimal civilized measure of life's necessities." Miserable conditions that do not threaten health pass muster. Miserable conditions that do threaten health pass muster if officials did not know of and ignore the risk, i.e., if they were not "deliberately indifferent" to the risk. Rehabilitation is an option that prison officials can adopt or discard as budgets, the political climate, and their own interests dictate. Devoid of a positive vision for prisons, the constitution offers little help to mental health staff seeking support for something better than the exceedingly low constitutionally acceptable minimum.
Unfortunately, there are no direct enforcement mechanisms for internationally recognized human rights. Lawsuits cannot be predicated on them, and US courts will not enforce them. Treaty bodies and authorities review US treaty compliance (with the help of submissions from non-governmental organization) and make recommendations, but have no power to compel the United States to comply with those recommendations. The Committee against Torture, for example, in 2006 expressed its concern about excessively harsh conditions in, and the mental health impact of, supermaximum security prisons in the United States and urged the US to review regimes of prolonged isolation. There is no evidence such a review has been undertaken or even contemplated. The US has not signed on to treaty provisions, such as the first optional protocol to the ICCPR, which would allow treaty bodies, e.g., the Human Rights Committee and the CAT, to consider communications from individuals claiming that their rights under the treaty had been violated.
Human rights are important for mental health practitioners nonetheless. They offer a framework of principles that supports correctional mental health services and from which practitioners can draw sustenance for the daily struggle to do enough with not enough. As Physicians for Human Rights stated in its report, Dual Loyalty, "for health professionals, a human rights framework provides a steady moral compass, a blueprint of a just and humane social order that at its core articulates the principles of the dignity and equality of every human being." Human rights provide a universally acknowledged set of precepts that can be used during internal advocacy. They can be used during external advocacy as well - individually, or through their professional organizations, practitioners can provide information and analysis to the public, elected officials and US treaty bodies regarding the reality of mental health services in prisons and how they meet, or fail to meet, human rights norms. Finally, human rights are integral to medical ethics, and support practitioners' ethical responsibilities to the well-being of their patients, to provide the best services they can even under difficult circumstances and to advocate for practices and policies - including custody practices and policies - that meet their patients' mental health needs.
In short, for practitioners who want improved policies and practices, human rights offers a powerful rationale and vision for a different kind of correctional mental health services than that which exists in most prisons; indeed, a different kind of prison. A prison operated within a human rights framework would provide a full range of mental health services with the staffing, resources and facilities needed to serve the prison's population. Custodial policies and practices would be adjusted to ensure security and safety needs do not compromise mental health treatment. Staff would no longer constantly find themselves forced to choose between what they know they "should" be doing in terms of standards of care and principles of treatment, and what is feasible in the circumstances. Ethical standards of beneficence, non-malfeasance and loyalty to patients would not be constantly challenged.
It is a good vision, one well worth working for.
