By Dr. Elaine van Rijn (Scientific Officer, European Commission, Joint Research Centre (JRC), Ispra, Italy, ELAINE.van-rijn ec.europa-.eu ), Dr. Natalie Abrokwa (University of Groningen, natalie.abrokwa rug.nl ) and Dominique Mollet, LLM, (PhD Candidate, European Commission, Joint Research Centre (JRC), Ispra, Italy, and University of Groningen, DOMINIQUE.mollet ec.europa.eu ; s.d.mollet rug.nl ).

This is part II of a series of blog posts on the European Commission's Communication on a Comprehensive Approach to Mental Health . Part I [NA1] discusses the content of the Communication and where mental health fits within EU law. Part II reflects on the Communication from a right to mental health-perspective. The series is published in light of World Mental Health Day , 10 October 2023.

The theme of this year’s World Mental Health Day, taking place on 10 October 2023, is the universal right to mental health. To strengthen the efforts of the European Commission’s Communication on a Comprehensive Approach to Mental Health, we will reflect on the Communication based on a simplified framework of the right to health. We will include the most relevant provisions of the International Covenant on Economic, Social and Cultural Rights (ICESCR), the Convention on the Rights of the Child (CRC), and the Convention on the Rights of Persons with Disabilities (CRPD).[1]  Since we aim to offer a novel perspective on the matter, we focus on the right to mental health under international law. We have not included the applicable rights under the European Union’s (EU) Charter of Fundamental Rights (CFR) here.

The EU and international human rights law

Before diving into the substance of the right to mental health under international human rights law, it is important to first address questions of applicability: are the European Union and its Member States bound to international human rights law? The EU itself is not a party to the ICESCR and CRC and it is not directly bound by these treaties. Nevertheless, the norms are applicable throughout the EU, given that all Member States have ratified it. ^[2] Accordingly, the Member States bear the obligation to ensure the rights provided in these treaties, while the EU does not have a formal role under these treaties.

The CRPD, on the other hand, is the only international human rights treaty that the EU has ratified. ^[3] Accordingly, the obligations stipulated in the Convention are directly binding on the EU, but only to the extent that they are in accordance with the division of competences between the EU and the Member States. ^[4]   Put simply, this means that the obligations of the CRPD only apply to the EU in the policy areas where it has competences (for a brief introduction to EU law and mental health, see blog post I of this series).[5] For example, the EU bears the responsibility of ensuring the rights under the CRPD in relation to its own public administration, but the responsibilities of providing an accessible health care system remain with the Member States.

Table 1 provides an overview of how the EU and the Member States are bound to the three international human rights laws (ICESCR, CRC and CRPD). For the purposes of this post, the most relevant rights for the content of the Communication are followed, namely Articles 12 ICESCR, 24 CRC and 19 CRPD. ^[6]

Table 1 Overview of how the EU and its Member States are bound to the relevant provisions of international human rights law.

The right to mental health under international human rights law

Article 12 ICESCR prescribes the highest attainable standard of physical and mental health. ^[7] In promoting mental health and preventing ill-health, it requires States to ensure specific conditions, in the setting of (mental) health care, as well as the underlying determinants of (mental) health. ^[8] Regarding healthcare, Article 12 also sets out the right to health facilities, goods and services, including the provision of, and timely access to, appropriate mental health treatment and care. ^[9] This right includes the State obligation to ensure facilities, goods and services are Available, Accessible (geographically and economically), Acceptable (culturally), in line with medical ethics, and of high Quality. ^[10] This is also known as the AAAQ principle. The underlying determinants of health include, but are not limited to, physical environmental determinants (access to safe food, water, housing etc.), emotional and psychosocial determinants (relationships, social connections, community identification etc.), as well as political and structural determinants. ^[11]

While the principles of Article 12 ICESCR apply to all persons, Article 24 of the CRC offers additional protection for children, specifically targeting their vulnerabilities. ^[12] According to the CRC’s Committee’s interpretation, this includes the right of children and adolescents with mental ill-health to be treated and cared for, as far as possible, in the community in which they live. ^[13]

Finally, Article 19 of the Convention on the Rights of Persons with Disabilities provides for the right to live independently and be included in the community. ^[14] This implies that individuals should have the choice of how, where and with whom they want to live, ^[15] as well as have access to the health and support services they need in order to be fully included and participate in society, ^[16] to prevent segregation and isolation from the community, and thus, ensure reintegration into society after recovery. Such services include a range of high-quality, individualised in-home, residential and other community support services, as well as inclusive mainstream services in the community. ^[17]

The right to mental health within the EC’s Communication on a Comprehensive Approach to Mental Health

The Communication’s guiding principles and its precise text are in line with a number of requirements that the right to mental health under international law stipulates. For instance, it has a clear focus on vulnerabilities, by focusing one priority solely on ‘helping those most in need’.[18] Additionally, it emphasises the need to improve access to treatment and care. In doing so, the Communication highlights the importance of identifying ‘best practices and innovative solutions to improve the availability, quality, accessibility and affordability of mental health care’.[19] Additionally, it explicitly considers inequalities, stating that tailored care must be offered to vulnerable groups. This clearly highlights its adherence to the AAAQ principle. Furthermore, in accordance with the right to mental health under the ICESCR, the Communication also awards attention to key mental health determinants, ^[20] such as living conditions, better housing, clean air, access to sport, culture, green areas, better work-life balance and the risks of violence. ^[21] The Communication’s text only explicitly refers to the right to healthcare, while implicitly it covers the broader scope of the right to health as understood under international law.[22] As indicated above, the right to mental health under international human rights law extends beyond healthcare and also concerns the underlying determinants of health. 

Similarly, in line with Article 24 CRC’s tailored protection for children, one of the Communication’s priorities is ‘boosting the mental health of children and young people’.[23] Besides prevention and early intervention, focus is put on the link between mental health and the use of digital tools. The Digital Services Act (DSA) recognises the risks that may arise from minors from the use of online platforms, for example through (un)intentional exploitation of their weaknesses and inexperience. Building on the DSA, one of the Communication’s flagship initiatives will support a code of conduct on age-appropriate design as well as ‘facilitate continuation and reinforcement of the work under the code of conduct on countering illegal hate speech online’.[24] Additionally, Member States are urged to ensure that children have better access to mental health services, an action clearly in line with Article 24 CRC.

Finally, Article 19 CRPD offers an interesting perspective to the third guiding principle of the Communication (see blog post I of this series [NA2] ) concerning reintegration in society after recovery. Article 19 is the key norm when it comes to community inclusion of persons with mental ill health and it states that persons with (mental) disabilities have the right to be included in the community. ^[25] This provision concerns the (continuous) integration of persons with (mental) disabilities and does not emphasise the importance of reintegration, which is a different approach from the Communication. The Communication’s guiding principles focus on prevention, treatment and reintegration after recovery. Emphasising the role of integration only after recovery differs from the rights-based perspective where inclusion is key, especially during the experience of mental health episodes, mental health treatment and care. It is pertinent to highlight that none of the above is to say that the Communication does not have sufficient attention for social inclusion. The Communication does refer to social inclusion and the EC commits to issuing guidance to Member States concerning independent living and inclusion in the community. ^[26]

The Way Forward: How can an international human rights law-perspective foster implementation of the Communication and foster mental health?

Now that the EC’s Communication has been launched, the next question is how the proposed actions will be implemented. A right to mental health-based perspective can potentially aid this process by offering a more comprehensive approach. For instance, each of the Communication’s  priority areas includes a number of flagship initiatives, but these do not cover everything mentioned in the text. For example, various vulnerable groups are listed under the priority of ‘helping those most in need’, but only two flagship initiatives are announced. In order to be more inclusive, it would be important to know how the other vulnerable groups could be helped. Similarly, from a human-rights perspective, it would be desirable to have additional guidance on deliberate and concrete steps taking into consideration Member States’ available resources, as is required under the right to mental health norm.

Given the enormous burden of mental health problems in the EU, it is vital that it remains a priority, both on EU and national levels. The EC’s Communication creates a useful platform for Member States to work together and exchange best practices, as well as  to monitor progress on the implementation of the initiatives. The funding that has been set aside to address mental health in the EU is a welcome incentive to assist countries in their efforts.

[1] International Covenant on Economic, Social and Cultural Rights (adopted 3 January 1976, entered into force 3 January 1976) 993 UNTS 3 (hereinafter ICESCR); Convention on the Rights of the Child (adopted 20 November 1989, entered into force 2 September 1990) 1577 UNTS 3 (hereinafter CRC); Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008) 2515 UNTS 3 (hereinafter CRPD).

[2] Note that, besides the obligations under international human rights law, Member States are also obliged to respect EU law and that in case of a conflict between international obligations and EU law, the latter precedes. ‘International Covenant on Economic, Social and Cultural Rights’ (United Nations Treaty Collection) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-3&chapter=4> accessed 22 September 2023; ‘Convention on the Rights of the Child’ (United Nations Treaty Collection) <https://treaties.un.org/Pages/ViewDetails.aspx?src=IND&mtdsg_no=IV-11&chapter=4> accessed 22 September 2023.

[3] To be precise, the CRPD is a mixed agreement between the EU and the Member States. ‘Convention on the Rights of Persons with Disabilities’ (United Nations Treaty Collection) <https://treaties.un.org/Pages/showDetails.aspx?objid=080000028017bf87&clang=_en> accessed 22 September 2023.

[4] For more information, please consult L Waddington, ‘A New Era in Human Rights Protection in the European Community: The Implications the United Nations’ Convention on the Rights of Persons with Disabilities for the European Community’ (2007) Maastricht Faculty of Law Working Paper No. 2007-4 2.

[5] More precisely, the EU has competences in the policy areas where it has exclusive competences and shared competences in case the laws of the Member States have been harmonized at the EU-level, Code of Conduct between the Council, the Member States and the Commission setting out internal arrangements for the implementation by and representation of the European Union relating to the United Nations Convention on the Rights of Persons with Disabilities [2010] C 340/11, paras. 4 and 5. For a more elaborate and detailed explanation of the division of competences for the implementation of obligations prescribed under the CRPD, please consult M Chamon, ‘Negotiation, Ratification and Implementation of the CRPD and its Status in the EU Legal Order’ in D Ferri and A Broderick (eds.), Research Handbook on EU Disability Law (Cheltenham, Edward Elgar, 2020) 52.

[6] ICESCR (n 1) Art. 12; CRC (n 1) Art, 24; CRPD (n 1) Art. 19. For a more comprehensive analysis, please consult N Abrokwa, ‘The right to mental health: a human rights approach’ (Intersentia, 2023).

[7] ICESCR (n 1) Art. 12.

[8] OHCHR, ‘CESCR General Comment No. 14: The Right to the Highest Attainable Standard of Health (Art. 12)  General Comment 14’ (11 August 2000) E/C.12/2000/4 (hereinafter CESCR General Comment No. 14),  para. 11.

[9]  ibid, para. 17.

[10]  ibid.

[11] Abrokwa (n 6) 61-62.

[12] CRC (n 1) Art. 24.

[13] OHCHR, ‘CRC General Comment No. 4: Adolescent Health and Development in the Context of the Convention on the Rights of the Child’ (1 July 2003) CRC/GC/2003/4, para 25.

[14] CRPD (n 1) Art. 19.

[15] ibid, Art. 19(a).

[16] ibid, Art 19(b).

[17] ibid, art 19(b); CteeRPD, ‘Guidelines on deinstitutionalization, including in emergencies (2022)’ (9 September 2022) CRPD/C/5, para. 22.

[18] Communication from the Commission to the European Parliament, the Council, the European Economic and Social Committee and the Committee of the Regions on a comprehensive approach to mental health (Brussels, 7 June 2023) COM(2023) 298 final (hereinafter Communication), 12.

[19] Communication (n 18) 19.

[20] Abrokwa (n 6) 61-62.

[21] Communication (n 18) 6.

[22] The ‘right to health care’ is stipulated in Article 35 CFR.

[23] Communication (n 18) 8.

[24] Communication (n 18) 11.

[25] CRPD (n 1) Art. 19

[26] Communication (n 18) 14.

 [NA1]hyperlink to that blog post when publishing it on the GCHL blog

 [NA2]hyperlink to that blog post when publishing it on the GCHL blog