SHIVANI DANIELLE JACELON

In March 2020, just before the borders, schools, restaurants and other doors of the world began to shut with an aching thud, economist Anne Case hosted a lecture at the Columbia School of Social Work. In this lecture Case discussed her and Sir Angus Deaton’s book Deaths of Despair and the Future of Capitalism, which explores the continued fall of life expectancy among blue collared, working class Americans, partly due to an increase in deaths of despair, namely, suicide, drug overdoses and alcoholism. This almost poetic categorisation of deaths seems to have taken on new meaning in the wake of COVID-19. Although we are unable to see at this point in time the true effects of COVID-19 on suicides, if we are to examine the historical effects of an economic downturn on suicide rates, this may well be an indication that a notable increase will reveal itself in short order.

When examining the idea of “deaths of despair” from a human rights perspective, the question must be inevitably drawn as to whether the forced closure of society in an effort to preserve the fundamental right to physical health has come at the expense of the exponential deterioration of mental health?

A Snapshot of International Treaties & Mental Health – The ICESCR

“Deaths of despair are prevalent among those who have been left behind, whose lives have not worked out as they expected.” (Case & Deaton, 2020, p139). As COVID-19 has exposed pre-existing fault lines brought on by systemic and grotesque inequalities in society, it is plausible that despair for those who were already left behind prior to the onslaught of the pandemic will increase exponentially. In examining the increase of deaths of despair throughout the world, it has been found that not only is there historical evidence to show that suicides increased during past global outbreaks, namely the Spanish Flu and SARS, but current statistics also suggest that COVID-19 continues to have a negative impact of mental health on a global scale. With a further rise in deaths of despair on the horizon, it is therefore important to look to international treaties to determine whether they are sufficient in assisting persons in exercising their right to access to mental health care.

An important starting point in considering the role of international law in treating mental health as a human right is to consider the International Covenant on Economic Social and Cultural Rights (ICESCR). Article 12 of the ICESCR recognises “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health.” While the plain language of this provision is perfectly clear, its effective implementation is dubious for various reasons. Firstly, this provision is meaningless for states that have not ratified the ICESCR, most notably, the USA. This failure to recognise economic and social rights as fully-fledged human rights lies at the very heart of an increasingly unequal world where many people, including those who suffer with mental illness, are not guaranteed social and economic rights because of domestic political attitudes. Additionally, even where a state has ratified the treaty, Article 2 of the ICESCR allows for a significant sliding scale of compliance, as parties can take steps to achieve the mandates of the covenant “progressively” and “to the maximum of its available resources”.

From this standpoint, at the inception of the enshrinement of these rights, there are fetters and limitations. This must be taken into account when considering the lengths to which states may be willing to go in protecting a right to a high standard of mental health.

Mental Health & COVID-19

One need not look far to observe the corelation between COVID-19 and negative impacts on mental health. There are various collateral consequences of the pandemic which have a direct and dire impact on mental health, with perhaps the most prominent being the loss of jobs and livelihoods. Although unemployment has increased around the world and has brought with it an adverse impact on people’s mental health, the USA stands out in the global arena for its high unemployment numbers which are no doubt under an even closer microscope in the midst of a mercurial election season. The high unemployment numbers in the USA are inevitably exasperated by the lack of public health care which has led to dire consequences on people’s lives. Indeed it has been noted that: “The for-profit healthcare system in the United States challenges the American exceptionalist myth that the US is a democracy of and for the people.” Similarly, notwithstanding the wave of loss experienced by so many Americans, pharmaceutical companies continue to thrive in the midst of despair. This lack of readily available universal health care has not only exasperated the massive socio-economic disparities in America, but it has directly impacted upon the mental health of those who cannot afford health care.

Although there have been developments in the international arena concerning legislating towards greater and more specific human rights and safeguards for mental health, there is still work to be done in ossifying this right. For example, a recent UN publication addresses the right to health and access to health care as a human right in the context of COVID-19. The report addresses the vast discrepancies of socioeconomic consequences of COVID-19 on minorities and vulnerable members of society. What is notable however, is that this publication fails to address the relationship between COVID-19 and the human right to mental health specifically. It may be that this is a direct reflection of the competition between the right to physical health and the right to mental health as brought on by the pandemic. In other words, in an effort to preserve the physical health of as many people as possible, many countries including China, the UK, the USA, various Caribbean islands and India,  imposed (with some continuing to impose) restrictions, including but not limited to sheltering in place, which may have inadvertently led to the deterioration of the mental health of individuals.

Further yet, in examining the human right to mental health, it is crucial to view the effects of COVID-19 with a gender-focused lens which reveals even wider discrepancies of the effect of the pandemic on certain sectors of society. For example, as many households were forced to hunker down and stay in tight quarters together, in some instances this has led to an increase in domestic and sexual violence, with women and children facing the brunt. This trend is not isolated to any one country in particular, with a host of nations showing a significant rise in instances of reported domestic abuse. To complicate matters even further, this increase in reporting of incidences of domestic violence does not reflect the true number of instances as the close proximity that partners and families are forced to constantly share in the wake of the public health crisis necessarily impedes their ability to reach out for help in the first place. Further still, even when someone can call the authorities for help, there is such a large strain on resources in light of the pandemic that they may not actually receive the help that they require. 

In remarking on the patterns of the rise of domestic violence or “intimate terrorism”, the New York Times highlights the consistent patterns in Europe by noting that that, “In Europe, one country after another seems to have followed the same grim path: First, governments impose lockdowns without making sufficient provisions for domestic abuse victims. About 10 days later, distress calls spike, setting off a public outcry. Only then do the governments scramble to improvise solutions.” This imbalance of experience also demands a re-examination of the role that human rights can and must play in protecting mental health as members of society who have been subjected to the increase of violence in the intimate setting of their home, will be more at risk of experiencing detrimental health consequences and therefore, are in greater need of protection.

This article has purported to briefly reflect upon the complexities of, but fundamental and urgent need for, a bolstered human rights framework in the context of mental health in the context of COVID-19. The pandemic has led to a difficult, but my no means novel situation, where human rights may be seen as in competition with one another. While this tension between rights is understandable where restrictions on freedoms are necessary to preserve public health, the same should not lead to a complete overriding of mental health protections and the role of human rights therein. COVID-19 has unmasked a plethora of cracks and failings within our systems and has shined a macabre light on the shortcomings of society. Perhaps one of the dismal silver linings of the pandemic will be that the stigma attached to mental illness may be slowly stripped away as many more people will be confronted by mental health issues brought on by COVID-19. Hopefully, with this mitigation of stigma, there may be more room for human rights to step in and offer the safeguards so desperately needed.

Shivani Danielle Jacelon is a graduate of the NYU School of Law with an LL.M in International Legal Studies, 2020. She received her LLB from the University of Warwick in 2008 and completed the LPC at the University of Law in London in 2009. Shivani specialised in Real Estate and Estates law in her home country of Trinidad and Tobago and was a Partner at a leading law firm in Trinidad. During her time at NYU, Shivani took part in external internships at the Family Center in Brooklyn and at the Legal Aid Society at the Harlem Community Office. Shivani was awarded an LL.M Public Interest Fellowship from NYU for her work with the Legal Aid Society and she continues to volunteer with the organisation. Shivani is also a member of the Ontario Bar and recently sat the New York Bar in October 2020.