By Sofia Vanzan, International Health Law Student, University of Groningen

In 2022, Italian detention facilities registered the highest number of suicides of the last ten years. A total of 84 detainees decided to end their life because of the unbearable distress caused by detention and the lack of prospects for the future.^[i] The fact that, while the prison population decreases, the number of people taking their life increases, underlines a serious emergency of the health state of detainees and of the conditions of these facilities. The high suicide rate can, among other factors, be linked to the impact that detention has on mental health and the inadequacies in the prison mental healthcare system, together with the lack of rehabilitation and prospects for the future. In fact, the probability of suicides in prisons is 15 times higher compared to the suicide rate of the population outside of detention.^[ii]

In the ‘70s, Italy embarked on a deinstitutionalization journey which aimed to move the institutionalized concept of mental health facilities to a community-based care for the mentally ill.^[iii] In fact, deinstitutionalization aims at closing mental institutions, where people are often restrained against their will and their living conditions are unsatisfactory.^[iv]  When talking about deinstitutionalization of mental health care of criminally liable detainees, the process was concluded only in 2017, when the last psychiatric prison was closed. The health treatment of detainees suffering from serious mental health is now conducted in facilities called Residenze per l’Esecuzione delle Misure di Sicurezza (REMS).^[v] These new specialized divisions welcome mentally ill individuals that are socially dangerous or in the case their psychological conditions need to be ascertained, in the case that the ordinary prisons do not appear suitable for the subject.^[vi]  However, only a small number of people can be admitted to REMS, due to the limited number of beds available in the country, which are not situated inside the ordinary detention facilities.^[vii]

In the general prison system, almost half of detainees are under medical psychiatric treatment.^[viii] However, only some prisons have dedicated areas to treat people with mental health illnesses.^[ix] Hence, the psychiatric conditions underline the existence of an emergency in the mental healthcare Italian prison system, due to the fact that the majority of people with psychological conditions are situated in ordinary detention, where specialized and continuous care and assistance is not always granted, because of the limited availability of beds in the specialized mental facilities.^[x]

The human rights framework posed by the International Covenant on Economic, Social and Civil Rights (ICESCR)^[xi] together with the Convention on the Rights of People with Disabilities (CRPD)^[xii] shall be taken into consideration in the application and implementation of mental healthcare in prison, where human rights violations of mentally ill people are very high.^[xiii] Specifically, the international framework for the right to mental health care is mainly provided under article 12 ICESCR, and article 25 CRPD, which imposes certain obligations on states.  Lack of mental healthcare for detainees can also amount to violations of civil and political rights, such as the prohibition of ill-treatment and the right to life.^[xiv]

Article 12 of the ICESCR establishes the right of all individuals to enjoy mental health and it requires states to create “conditions which would assure to all medical service and medical attention in the event of sickness”.^[xv] These obligations shall apply also to mental healthcare of detainees.^[xvi]  Thus, states have an obligation to ensure the safety and health of prisoners with regard to mental illnesses.^[xvii] Moreover, article 25 CRPD protects the right of a person with mental disability to enjoy health without discrimination on the basis of the disability and under article 14(2) States also are under the obligation to guarantee the protection of human rights of people who suffer from mental disabilities, in the case their liberty is limited.^[xviii]

The right to mental health in Italian prisons can be assessed through the Availability Accessibility Acceptability Quality (AAAQ) principles developed by the Committee on Economic Social and Cultural Rights with the aim to assess national public health policies and to measure the impact on human rights of possible national reforms.^[xix] This will be applied in the following paragraphs.

First of all, the right to health requires the availability of mental health assistance for detainees. This means that facilities, goods and services, also dedicated to mental health, shall be available in sufficient quantity.^[xx] The Italian legal framework provided for it, also by instituting REMS.^[xxi] However, the lack of sufficient mental health professionals and the lack of hosting facilities makes it unavailable for all of those needing care.^[xxii]

Secondly, accessibility to health services must also be ensured in prison and it must be granted without discrimination. Yet, in practice, the Italian system critically underlines unequal access of mental health care for people in ordinary prison facilities compared to free citizens and also to people that are in REMS, where mental assistance is taken into consideration more carefully, because not all of those needing continuous and specialized care can be admitted to REMS. It must not be forgotten that people in ordinary detention places also need mental facilities.^[xxiii] This was also the situation of the case SY v Italy, where the detainee was not admitted to the REMS due to lack of space and because of the prison system deficiencies he committed suicide while waiting to accede.^[xxiv] As a result, a violation of the prohibition of inhuman and degrading treatment was found, because of the inadequate treatment offered to the individual needing care. The Court claimed that adequate care must be assured to detainees, regardless of the place where the detention is taking place.^[xxv]

Thirdly, acceptability requires that the care provided is in compliance with medical ethics and culturally appropriate. However, it has been proven that overmedication to make mentally ill detainees numb is common practice, as well as non-consensual treatment.^[xxvi] Lastly, quality of the facilities, services and treatment is crucial. A mental health service provided to prisoners must include the presence of skilled medical personnel, the availability of approved drugs and medical equipment. While the Italian penitentiary law requires that the most advanced medical knowledge and equipment shall be used for the treatment of prisoners’ health,^[xxvii] the fact that not enough governmental funds in Italy is invested on prison mental health services hinders the quality of mental health care provided.^[xxviii] The inadequate allocation of resources has also been underlined by the High Commissioner for Human Rights as a systemic challenge, potentially violating article 2(1) ICESCR.^[xxix]

In summary, it can only be argued that 2022 has been a dark year for Italian prisoners, considering the high suicide rate caused by the mental distress people deprived of their liberty encounter. However, there must be a way in order to make amendments and pay respect to the 84 detainees who took their life this year.^[xxx] A system reform would therefore be required to ensure accessible and acceptable mental health care both in the REMS and in the ordinary detention facilities, as concluded by the Italian Constitutional Court.^[xxxi] A sufficient number of trained medical staff must be hired in every prison infrastructure, control mechanisms shall be ensured to avoid violations of the right and funds shall be invested in the creation of specialized mental health facilities in every prison. A more rights-based approach that takes into consideration human rights, dignity and non-coercive practices shall be implemented also with regard to detention facilities, because prisoners are entitled to mental health, too.^[xxxii] This is the key in order to ensure the right to health of detainees in conformity with the international requirements, not merely within the law but also in practice.

[i] Carceri. Antigone: "Il 2022, l'anno dei suicidi, ci dice della necessità di riformare il sistema" (2022, Antigone) accessed at https://www.antigone.it/news/antigone-news/3455-carceri-antigone-il-2022-l-anno-dei-suicidi-ci-dice-della-necessita-di-riformare-il-sistema.

[ii] Garante Nazionale dei diritti delle persone private della libertà personale, “Per un’analisi dei suicidi negli Istituti penitenziari” (5 December 2022) accessed at

https://www.garantenazionaleprivatiliberta.it/gnpl/resources/cms/documents/baefe95d2cc04f34eb23db56ba3b6fea.pdf.

[iii] Enrico Vincenti, Floriana Irtelli “A quarant’anni dalla Legge 180” in Franco A, Ricerca psicoanalitica: rivista della relazione in psicoanalisi (2018), 37-51.

[iv] World Health Organization and the Gulbenkian Global Mental Health Platform, “Innovation in deinstitutionalization: a WHO expert survey” (2014, World Health Organization).

[v] REMS stands for Residence for the Execution of Security Measures. See Michele Miravalle, “Pazze galere. Esiste una “questione psichiatrica” nel sistema dell’esecuzione penale?” In XVIII Rapporto sulle condizioni di detenzione (2022, Antigone).

[vi] Michele Miravalle, “Dagli ospedali psichiatrici giudiziari alle residenze per l'esecuzione delle misure di sicurezza: un approccio socio-giuridico” in Mantovani G, Donne Ristrette (2018, Ledizioni) 368-390, 382.

[vii] There is an availability of around 550 places of detention in REMS all over Italy.

[viii] Michele Miravalle, “Pazze galere. Esiste una “questione psichiatrica” nel sistema dell’esecuzione penale?” In XVIII Rapporto sulle condizioni di detenzione (2022, Antigone).

[ix] Ibid.

[x] Ibid.

[xi] International Covenant on Economic, Social and Cultural Rights (adopted 16 December 1966, entered into force 3 January 1976), 993 UNTS 3 (ICESCR).

[xii] Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008), 2515 UNTS 3 (CRPD).

[xiii]  P.H.P.H.M.C. Van Kempen, M.J.M. Krabbe, “Mental health and criminal justice: international and domestic perspectives on defendants and detainees with mental illness” (2021, The Hague: Eleven).

[xiv] Ibid. 169.

[xv] Art. 12(2)(d) ICESCR.

[xvi] UN Committee on Economic Social and Cultural Rights, General Comment No 14 The Right to the Highest Attainable Standard of Health (Art. 12), E/C 12/2000/4 (2000) para 18 and 34.

[xvii]  Van Kempen (n vi) 27.

[xviii] Ibid. See Convention on the Rights of Persons with Disabilities (adopted 13 December 2006, entered into force 3 May 2008), 2515 UNTS 3 (CRPD).

[xix] UN Committee on Economic Social and Cultural Rights, General Comment No 14 The Right to the Highest Attainable Standard of Health (Art. 12), E/C 12/2000/4 (2000) para 12.  See also Brigit Toebes, Mette Hartlev, Aart Hendriks, Katharina O Cathaoir, Janne Rothmar Herrmann, Henriette Sinding Aasen, “Health and Human Rights” 2nd Edition (2022, Intersentia) 33-34.

[xx] Ibid.

[xxi]  Giulia Camera, “Liberi, detenuti in carcere e ristretti in strutture dedicate: diverse prospettive del diritto alla salute” in Massaro A, La tutela della salute nei luoghi di detenzione (2017, Romatre-Press) 103-149.

[xxii] Viviana Lanza, “Senza assistenza la salute mentale nelle carceri è solo un miraggio” (2021, Il Riformista) accessed at https://www.ilriformista.it/senza-assistenza-la-salute-mentale-nelle-carceri-e-solo-un-miraggio-190046/.

[xxiii] Camera (n xv).

[xxiv] European Court of Human Rights, SY v Italy App. No. 11791/20 (24 January 2022).

[xxv] Miravalle (n iv).

[xxvi] Ibid.

[xxvii] Art. 113 Italian Penitentiary Order.

[xxviii] Constitutional Court No. 22/2022 (16 December 2021, registered 27 January 2022).

[xxix] Human Rights Council, “Mental health and human rights: Report of the United Nations High Commissioner for Human Rights“ A/HRC/34/32 (31 January 2017) para 19.

[xxx] Carceri. Antigone: "Il 2022, l'anno dei suicidi, ci dice della necessità di riformare il sistema" (2022, Antigone) accessed at https://www.antigone.it/news/antigone-news/3455-carceri-antigone-il-2022-l-anno-dei-suicidi-ci-dice-della-necessita-di-riformare-il-sistema.

[xxxi] Constitutional Court (n xxi).

[xxxii] Human Rights Council, Report of the Special Rapporteur on the right of everyone to the enjoyment of the highest attainable standard of physical and mental health, A/HRC/44/48 (15 April 2022) paras 54-57.