Research Stream: Symposium
Author: Roberta Esposito, Doctoral Course in Public, Criminal and International Law, University of Pavia, Recent Visiting PhD Researcher in ALL
On November 27th, Maynooth University (MU) unveiled the “Elephant in the Room” (EIR) sculpture. This initiative highlights the university’s commitment to promoting mental health and well-being, fostering an inclusive, safe, and positive campus culture. It serves as a poignant reminder to the entire academic community and society at large that mental health challenges can affect everyone. I started my professional journey at MU years ago and recently returned to the ALL Institute as a visiting PhD researcher to better structure my research project on the right to mental health. Always feeling, even from afar, part of this warm community, the MU’s initiative has been an occasion for me to reflect on how cumbersome this Elephant truly is.
In 2019, one in eight people worldwide lived with a mental health condition, mainly anxiety and depression ─ a statistic that has only worsened due to the high level of stress experienced by people across the globe during this time of crisis because of the COVID-19 pandemic, economic instability, ongoing conflicts, digitalisation, and climate change. The perception of mental health as a concern has increased significantly since the pandemic began. In the European Union (EU), even before the COVID-19 pandemic, one in six people suffered from mental health conditions. As of today, this situation has deteriorated, particularly among vulnerable groups. The 29 Country Health Profiles, covering all EU Member States, plus Iceland and Norway, show an uneven distribution of mental health problems. In fact, women (not least in their role as informal carers), population groups with lower socioeconomic status and education levels, and people suffering from chronic conditions are at higher risk of developing mental health problems.
Usually, when I present or discuss my research, I start by asking what comes to mind when thinking about “mental health”. In fact, reading books, newspapers, watching TV or listening to podcasts, we generally think about “mental health” in a meaning similar to the definition drafted by the World Health Organization (WHO) in 2001, according to which mental health is “[a] state of well-being in which the individual realizes his or her own abilities, can cope with the normal stresses of life, can work productively and fruitfully, and is able to make a contribution to his or her community”. Yet, the concept of mental health has historically and specifically been intended to concern (and protect) individuals with mental illnesses. Despite growing awareness, the response to mental health needs by governments across the globe has largely focused on the treatment of the ill rather than the prevention of the illness.
The idea of mental health as a human right “for everyone” is enshrined, more or less explicitly, in international and regional human rights systems (and related legal frameworks), though it has evidently not been fully achieved. An international human rights system with universal application has been developed under the auspices of the United Nations. The Universal Declaration of Human Rights (UDHR) (1948) lays the groundwork for the right to health and well-being in Article 25(1), which guarantees an adequate standard of living for health and well-being. While the UDHR itself is not legally binding, it has heavily influenced subsequent international and regional treaties, as well as national constitutions (among others, Schabas, 2021; Hannum, 1996). More directly relevant are
the WHO Constitution (1946), which states in its Preamble that “[h]ealth is a state of complete physical, mental and social well-being and not merely the absence of disease or infirmity” and the International Covenant on Economic, Social and Cultural Rights (ICESCR) (1966), which is binding on its state parties and explicitly requires the recognition and full realisation of “the right of everyone to the enjoyment of the highest attainable standard of physical and mental health” under Article 12.
The EU Member States are parties to both treaties.
Though the European integration began with predominately economic focus, human rights became increasingly important from the late 1960s onward (Wouters and Ovadek, 2021). Thus, here we consider the EU as one of the human rights regional systems in Europe (geographically speaking), and therefore its primary law. This includes the aim to promote the well-being of its peoples (Article 3 of the Treaty on the European Union) (TEU) (Lisbon Treaty, 2007), as well as the social clause to act taking into account the protection of human health (Article 9 of the Treaty on the Functioning of the European Union (TFEU) (Lisbon Treaty, 2007). Hence, the TFEU provides the EU with a dual nature of competences in health: Article 4(2)(k) grants the EU shared competences in addressing “common safety concerns in public health matters”; while Article 6(a) provides it with supplementary competences in the “protection and improvement of human health”. That twofold aspect of EU competences is mirrored in the words of Article 168(1) TFEU, which specifies that a “high level of human health protection shall be ensured in the definition and implementation of all Union policies and activities”, allowing the EU to adopt different types of measures depending on the specific health issue at hand. More precisely, Article 168(1) also mandates the EU to complement national policies in preventing mental illnesses and eliminating dangers to mental health. Additionally, this legal setting includes the Charter of Fundamental Rights of the European Union (CFREU) (2000), which states in Article 3(1) “[e]veryone has the right to respect for his or her physical and mental integrity” and in Article 35 recognises “the right of access to preventive health care and the right to benefit from medical treatment under the conditions established by national laws and practices” for everyone.
Focusing on EU action, most of the EU competences in health are complementary to those of the Member States, and the primary legal basis for adopting health laws and policies is Article 168 of the TFEU. However, other articles have also been used to enact legislation that impact on, or regulate, certain aspects of health, such as Article 114 (internal market), Article 153 (social policy), and Articles 122 and 222 (solidarity), etc. Responsibility for healthcare is in the hands of Member States, as outlined in Article 168(7). As a result, the EU enhances national policies, encourages collaboration between Member States, and facilitates the exchange of best practices and knowledge. Among the most significant recent EU initiatives on mental health, the Communication on a comprehensive approach to mental health (2023) adopted by the former European Commission (EC) is noteworthy.
The inability of our current national mental health systems in the EU to address and meet the increased needs of the population is clear. According to a Eurobarometer survey on mental health (2023), one in two respondents across the EU declared to have experienced an emotional or psychosocial problem in the previous year; more than half of the respondents experiencing a mental health issue declared lack of help from a professional. What emerged demonstrates that, due to various factors, including the EU’s imperfect competences on the matter, limited harmonisation across the EU-27, and the variability in the implementation of mental health policies among them, more and urgent actions are needed to put mental health first throughout the EU.
The re-elected EC President von der Leyen, in her Political Guidelines 2024-2029, presented to the European Parliament on the day of her election, has cited mental health and well-being in four key points: she underlined the urgent need to “step up our work on preventive health, in particular for mental health” to tackle what she has called “the greatest challenge in this decade”, placed a focus on the mental health of children and youth, proposed initiatives to study the impacts of social media on well-being, and promised a new “Action Plan on the Implementation of the European Pillar of Social Rights” which considers the impact of an “‘always on’ culture on people’s mental health”. Based on these Guidelines, the President, together with the new Commissioners, has defined the priorities of the new EC for 2024-2029, setting a “unique” European social model aimed at delivering “wellbeing for everyone”.
The High Commissioner for Human Rights, Volker Türk, recently and aptly stated: “[i]nvesting in mental health is a human rights imperative that makes social and economic sense” as an enabler for sustainable investments (and development) that will be repaid many times over. Given the lesson learned from the COVID-19 pandemic (among others, McKee and de Ruijter, 2023; Alemanno, 2020) and the global call to action on mental health, the EU has a timely opportunity to lead by example as a global actor, translating words and ambitions into tangible and effective actions to treat mental health as the right it is, not merely as a political tool, seizing (and not missing) the chance to guide the Elephant out of the Room.