Beyond libertarianism and the behavioural state: (Notes) towards a framework for

analysing fundamental (mental health) rights

Mick Carpenter Department of Sociology

University of Warwickm.j.carpenter@warwick.ac.uk

What lies behind the title…

• When human rights of mentally/emotionally distressed people are being compromised, danger of polarising debate between: – ‘negative’ libertarianism and ‘Lockeian’ rights to be left

alone, versus– social authoritarianism and/or social engineering of

human behaviour associated with New Labour • Therefore sketch out a ‘positive’ alternative – a

humanistic/holistic capabilities and human rights (CHR) approach to mental health and illness

• This embraces and combines both in indivisible ways• It links what is happening in mental health to wider political

economic and social policy processes

Working through a CHR approach

• A broad, ‘positive’ approach to human rights, based on ontological principles of what it is, universally, to be human

• Locke/Mill/Rawls versus Rousseau – Liberal-individualist versus social conception of humans and public intervention (Anglo- American v Continental European discourses)

• This led to division between CP and ESC rights• Capabilities approach of Sen, Nussbaum, etc,

and ‘needs’ theory of Doyal & Gough, Fraser etc – a broad combined approach uniting them

Defining Capabilities approach

• Sen – development as ‘real freedoms’ • Human Potentiality = capabilities • ‘Functionings’ = realisation in practice• Have to involve democracy, autonomy and

choice’ in economic and social spheres• Need to address equality and discrimination

barriers • Nussbaum from a feminist angle develops a

‘thick’ concept beyond ‘basic needs’ – realisation of ‘personhood’

Differences from Post-structuralism(s)

• Suspicious of HR as a new ‘grand narrative’ or ‘will to power’ based on enlightenment ‘reason’

• Anti-foundational and relativist – just a discourse or political construct

• If HR tends to be a ‘negative’ and libertarian – eg Foucault, Rose

• Anti-holistic and social models – eg Lupton• Decentring of identity - critique of personhood

Implications for health and mental health

• Links to Doyal and Gough – health as a precondition, with autonomy and self direction as a human need

• WHO definitions, less focus on wellbeing and more on ‘functional’ view of health? (each linked to 2nd and 3 rd waves)

• Ottawa Charter of health promotion – particularly equality and empowerment principles

• Rights: (1) to mental health generally and (2) for self-realisation of people experiencing mental/emotional distress

• Enhance social rights generally and for particular groups and strong legal measures to tackle discrimination

• Support for a social rather than a medical model – but room for debate about what this means in practice, as ‘needs talk’ can be contested – Nancy Fraser

WHO 2001 World Health Report – a landmark, but…

• First to focus centrally on mental health and illness, – raised it’s status and draws attention to increasingly visible

mental health problems – Recognizes the social influences on mental health, to a

degree, and public health upstream approach– Mental health as cornerstone of all health

• However– A biopsychosocial ‘medical’ model rather than a fully social

model compatible with a capabilities approach, thus:– Facilitates a medical, pharmaceutical and social

engineering rather than an empowering approach– Uses a ‘burden’ model with attendant dangers – Problematically defines epilepsy, alcoholism and

Alzheimer’s as mental illnesses

Broad conception of human rights – implications of capabilities approach

• Supports combined civil and political (CP) and Economic, Social and Cultural (ESC) human rights approach –

• Inalienable, indivisible, justiciable – enshrined in Universal Declaration of Human Rights UDHR and the 2 Covenants etc.

• Also Solidarity rights (not formally recognized) – to redress global inequalities, peace and protect environment

• EU Fundamental Rights of proposed new European constitution (which British government not happy with)

Klug’s three HR waves

• First: American and French revolutions Removal of arbitrary state and religious power (negative) CP rights

• Second: Post World War 2 Global ‘settlement’ Assertion of ESC rights but Cold War separates them with CP rights seen as ‘primary’ in capitalist world

• Third: Post 1989 End of divided world reunites indivisibility of CP and ESC rights, and stresses role of ‘civil society’ in realising them. Hmm, if only it were as simple…

First HR wave – freeing or re-imprisoning the ‘mad’ (and others)

Unresolved ‘enlightenment’ tension in capitalism between theory of individual freedom and actual need to impose social discipline to make markets work and asserts ‘property rights’ (1) Individual rights – e.g. Pinel freedom from chains – Quakers pursuing religious freedom through lay approach, civil rights campaigns around lunacy legislation, etc(2) Behaviour change Benthamite – behavioural control and change – individual responsibility (moral treatment) increasingly professionalized and institutionalised(3) Paternalistic/Authoritarian approach – protect society and ‘look after’ the lunatic - Lord Shaftesbury’s evangelical Toryism ‘Fused’ around 1845 Lunacy Act with (1) subsumed by (2) and (3). Also arguably reflected in current debates, with arguably Thatcherism emphasizing first and New Labour shifting balance from the first to second and third?

Second Wave – benefits in the wake

• Post 1945 extension of CP and ESC citizenship• Critique of Nazi and other ‘total institutions’ (CP)• Rights to voluntary treatment (CP)• Access to professionalised services –

incomplete ‘sick role (ESC)• Plus community support and ‘social inclusion’

(ESC in theory but less in reality)• Elsewhere I have criticised both the Scull and

Kathleen Jones take on these developments

Third Wave pluses and minuses

• Potentially can re-unite CP and ESC and solidarity rights (Klug) – but have to struggle for them, as:

• In practice triumph of neoliberal globalisation led to emphasis on CP rights within a global market (Fukuyama)

• Limited social intervention – capacity building and communitarianism (Etzioni and Putnam)

• Can lead to emphasis on changing people’s behaviour rather than structures – social and behavioural control – so-called Third Way

Good news on human rights and equality in Britain

• Acknowledgement of (mental) health inequalities• Adoption of European Charter of Human Rights

Act into law in 1998 - mainly CP though• Equality Act 2006 and set up of Commission for

Equality and Human Rights (CEHR) • Single Equality Act (SEA) coming• Positive equality duties for Gender, Race and

Disability• Equalities Review for CEHR endorses

capabilities and human rights approach

Less good news – part of a pattern

• Backing away from human rights to fight ‘war on terror’• Enforced social inclusion as far as possible into paid work

– loss of enhanced Incapacity Benefit• Largest prison population in Western Europe• Increased tendency towards community control – ASBOs,

Respect, etc, Obesity as child abuse, etc• Behavioural change substituting for structural change

White Paper ‘Choosing Health’– Tackling ill-health promoting forces– Redistributive measures targeting inequality

• Current mental health legislation…..policy making by media outrage to reassure ‘middle England

• Layard’s Benthamite project to prescribe happiness

Conclusions: a contradictory and contested policy field

• With departure of Blair possibility of a slightly more open political landscape, susceptible to pressure from below?

• If legislation passes, possibility of human rights challenges

• mental health and distress politicised – potential radical agenda around it

• Debate around the EU ‘constitution’ – don’t be fooled

• The New Equalities Agenda - CEHR creates a possibility for positive struggle to realise a capabilities and human rights agenda