Against Rights: Critiquing the contemporary neoliberal management of “difficult” mental health
Purple background, with pink text that reads Against Rights & an abstract graphic
By Lizzie Hughes & Jenny Logan
Introduction
When someone becomes unwell they are often told that they can no longer care for themselves. The state intervenes to do that “care”. When we want to fight back against the state’s carceral mechanisms of care, why do we so often turn to rights? Why, when in other contexts we oppose forms of state violence and discrimination, do systems that include heightened surveillance, criminalisation, forced sectioning, and forced medication appear as “care” in the first place? In this article, we critique contemporary management of “difficult” mental health, offering a discussion of Community Treatment Orders (CTOs) and the limitations of rights advocacy, and offer some alternative avenues for organising against the neoliberal and carceral management of “difficult” mental health.
“Difficult” Mental Health
We’re starting from the obvious point, but worth stating, that everyone has mental health, and everyone is likely going to experience some kind of irregulation or stress in relation to that mental health. And we don’t mean that in a liberal moderate sense, because of course, how we have and experience that mental health, and how that mental health is responded to, differs according to a subjects’ context. But, nevertheless, the point stands that we all experience some kind of mental health trouble at some point in our lives.
For example, in their training, Hearing Voices Network deliver an exercise that highlights how, if you can hear, you have likely had some kind of auditory hallucination at some point – such as hearing a notification on your phone, when there isn’t one. As well, they run a useful exercise that illustrates how some thoughts are normalised whilst others are interpreted as evidence of “paranoia” by asking participants to place comments on a scale, beginning with “I know my partner is cheating on me, but I have no proof” through to “the government is listening to my conversations”. Point being, certain paranoias are normalised and others are only understood through notions of unwellness.
Pointing this out is not to neutralise the experience of living with continuous unusual auditory information, visions, and/or unusual thoughts. Rather, it’s to highlight that the binary of “us” and “them” and “well” and “unwell” is less solid than we are encouraged to think. In fact, this dualism is baked into how statutory bodies and most charities approach mental health: the “unwell service user” comes to the “well worker”, who can relay “treatment”; even in so-called co-production models where clients are asked for their input into their own care, often the final say - including all the power and resources - is with the institution or organisation.
So, by “difficult”, we mean a mental health experience that disrupts someone’s everyday life, what might therefore be marked as a crisis: everyday tasks that were once more simple to do now become difficult or impossible; the loss of commitments, such as relationships, employment; and, threatening and/or doing violent behaviour to themselves or to others. Context, relativity, and scale matters here: just because someone quits their job and shuns their friends doesn’t mean they are having a crisis (maybe they just wanted to quit their job and get new friends), but these are generally the signs that someone is experiencing something difficult. But, by “difficult” we also mean to call into question what it means to be difficult: to stick out, to cause a problem, to get in the way, to do things differently, to go against the norm. This is an integral part of understanding how people whose minds become difficult are treated.
Currently, statutory and most charity responses to “difficult” mental health are carceral – meaning, that the only way to manage the person who is experiencing “difficult” mental health is to surveill them, contain them, and control them. Liat Ben-Moshe’s Decarcerating Disability (2020) is a useful resource for an in-depth examination of carceral approaches to mental health in the US. Generally, carceral responses to “difficult” mental health might encompass: being beaten, tasered, arrested, or subdued by police; being treated by securitised nurses wearing body-cams, who are trained in physical restraint; being sectioned in secure mental health wards temporarily or longer term; being medicated (injected, forced to take tablets) with or without your consent.
Here, we also make the case that supposedly community-based treatment, such as Community Treatment Orders (CTOs) are enactments of carceral control under the guise of “gentler” “community-based” care, achieved and legitimised through rights-based frameworks.
De-Institutionalisation of Mental Health Care in the UK
In the late 1990s, under Margaret Thatcher’s government, there was an aggressive and persistent shift towards a structure of “care in the community”. Purported to be driven by a moral shift that sought better, kinder treatment for people with severe mental illness than the cruelty of asylum systems, in reality the shift is more to do with developments in pharmaceutical treatments that enabled medicine to be delivered away from hospitalised settings, and is part of a broader shift towards neoliberal decentralisation, commercialisation, and privatisation of statutory care, including profiting off of the sales of hospital and asylum land. A significant shift in responsibility occurred - where care should take place changed, but no resources were put into actually making sure communities and families could cope, and individuals - who were previously deemed “too unwell” were now essentially made responsible for their own welfare.
Scull (2021) describes this in the following way:
Welfare ‘reform’, in Britain as in the United States, has become a term of art disguising repeated assaults on the social safety net and the demonisation of those dependent upon it. ‘Community care’ in the era of neoliberal politics has turned out to be an Orwellian euphemism masking a nightmare existence for all too many of those afflicted with serious psychoses and for their families.
We add to this that care-in-the community enables the extension of the carceral state into people’s everyday lives in neoliberal ways that actually harm people in need of care and harm communities.
Community Treatment Orders (CTOs)
CTOs were introduced in England and Wales in 2008, and are a legal means through which people living with mental health troubles can be made to accept treatment whilst living outside of the hospital. A CTO is made by a “responsible clinician” – such as doctors, psychologists, nurses, occupational therapists, and social workers. They can last up to 6 months but can be repeated as many times as deemed fit by that “responsible clinician”. They can only be challenged at Mental Health Tribunals.
They are issued to people sectioned under Section 3, Section 37, and Section 47 of the Mental Health Act. For context: section 3 is when you have been detained for your own health or safety, or for the protection of other people, and you have a diagnosis that requires hospital treatment, and this can last indefinitely; section 37 is when you are sent to hospital for treatment by a Crown Court, before or after conviction of a crime; and section 47 is when you have been transferred from prison to hospital because of mental health problems.
CTOs involve compulsory conditions such as restricted travel, living in a certain place, being sober, attending compulsory appointments for treatment, and forced injections and medication, which are proven to cause other health issues (Moncrieff, 2013). If someone refuses or fails to meet any of these conditions, they can be taken forcibly back to hospital by the police at any time. CTOs can only be challenged at Mental Health Tribunals, and are to an extent self-perpetuating: if the person “improves” then the CTO looks to be working, and they are more likely to be kept on it.
In 2023-2024, there were 5,618 new CTOs issued, and 109 people detained indefinitely after their CTO was revoked. CTOs are issued at the highest rate for Black or Black British people – 7 times the rate than white demographics (NHS England, 2024). This mirrors how mental health is policed more broadly, whereby people living in deprived areas are 3.5 times more likely to be detained, and Black people are 3.5 times more likely to be sectioned than white people – in fact, white people was the lowest ethnic group to be detained in 2023-24 (NHS England, 2024).
Some statistics from Mischa Frazer-Carroll’s excellent book Mad World further illustrate how endemic this racism is: Black people are 40% more likely to make contact with mental health services through the criminal justice system, more likely to be secluded and restrained on wards, and disproportionately likely to be on a medium or high secure ward. As well, Black men are 10 times more likely to receive a diagnosis of psychosis than white men and Black Caribbean people disproportionately likely to be diagnosed with schizophrenia (Frazer-Carroll, 2023).
Alongside these damning statistics, there is also a clear thread of neoliberalism running through programmes like CTOs. Whilst CTOs appear to be part of allowing people certain freedoms within community spaces, the treatment presents a cruel false choice: you must adhere to this order, and have your everyday life regulated to extreme levels, or you will be returned to confinement, and have your everyday life regulated to extreme levels. Either way, people surviving through “difficult” mental health are criminalised and carceralised.
CTOs can therefore be understood as a particularly problematic combination of governance, whereby carceral and neoliberal techniques of control work together to manage “difficult” mental health and “difficult” subjects. With this example, it is fairly clear that so-called care in the community is indicative of broader reforms that proliferate and spread the reach of the prison outside the formal site, under the guise of gentler, community-based responses. CTOs are akin to community-based probation orders that appear to be about rehabilitation and respecting the rights of the individual, but in reality spread the carceral reach under “kinder” “gentler” reforms (see, Schenwar and Law, 2020).
In trying to protect people who are subject to heightened state surveillance and control, we may be tempted to invoke rights as a bulwark against these intrusions. But relying on rights to manage state violence makes invisible the unequal availability and application of rights in the first place. As our example makes clear, if you are deemed as unable to care for yourself, if you are deemed as a danger to others, if you are too mad, you forgo rights because the law prioritises “public protection” and risk-management. It is akin to expecting the police to police themselves - the criminal justice system is legitimised as the recourse to justice. But we know it isn’t.
Law as a terrain of struggle
Why, then, do we turn to law – and specifically, rights – as an answer to the problem of state violence of persons with difficult mental health? As Hunt (2010) observes, modern democratic societies have, through the operation of law, produced systematic disadvantages for the least advantaged social classes. Law thus constitutes an arena of struggle with-in which social classes can seek to advance their relative positions. As Hunt states, ‘claims capable of translation into a discourse of individual rights and those interests congruent with existing rights categories are more likely to succeed than claims not matching these characteristics’ (Hunt, 2010, 364). This observation represents a long strain of thinking regarding the role of rights in social justice: as Radha D’Souza (2018) notes, social movements engage with rights to advance social transformation to bring about a just world.
As we argue below, however, rights advocacy in anti-carceral movements by and for persons with difficult mental health is not the way forward. We conclude by offering some alternatives to rights advocacy in this field of struggle, drawing on evidence from a qualitative study of organisations that are already doing the work of building anti-carceral treatment and resource centres for persons with difficult mental health.
The CRPD and Co-Optation
The United Nations (UN) Convention on the CRPD was adopted in 2007 and has since been ratified by 177 countries, including the UK in 2009. It is thought to represent a paradigm shift from an impairment-focused, biomedical model of disability to a socially focused, human rights–based model. Article 12 of the CRPD provides for equal representation before the law, which has been interpreted in General Comment 1 as asserting universal legal capacity for individuals with difficult mental states. For advocates, this means that the CRPD is incompatible with a carceral model that includes forced treatment and substitute decision-making, and provides instead for individual liberty and, when necessary, “supported” decision-making.
Following the adoption of the CRPD, then, regional groups began to organise to leverage the CRPD’s guarantee of rights to contest the medicalisation of mental distress (Davar, 2020). As Karter (2021) notes, these efforts were often co-opted by powerful actors. According to one participant in Karter’s (2021: 94) study:
“in these institutionalised spaces, people with psychosocial disabilities are seen only as an endorsement. They care about our testimony, not our participation in any active way that could lead to transformation.”
While we might be tempted to call for more rights and more protections in response to infringements of those rights, D'Souza (2018) points out that rights don’t do the things in the world that we want them to. If we had different and better institutions and institutional practice then we wouldn’t need to talk about rights. So, instead of focusing on rights as a panacea, we could focus on redistribution of resources towards institutions already doing anti-carceral treatment and resource work.
Conclusion: So how else can we manage “difficult” mental health?
It is important to note that a lot of mental ill-health originates in – whether that is personal trauma, intergenerational, cultural, and/or familial trauma. Responding to how we manage difficult mental health is also therefore about enabling earlier intervention to present it happening in the first place. This is not to legitimise “early intervention” schemes being currently deployed by statutory councils that enable early psychiatrisation or early contact with mental health systems, which we know makes far more likely criminal justice contact for marginalised subjects. Rather, using a structural approach, it is about putting in place better funded communities, better access to resources and material goods, better structures for dealing with family, sexual, and gendered harm, and efforts to preventing cycles of trauma, such that is offered through transformative justice programmes. Charities are not the way forward here. Most charities, no matter how well-meaning, are embedded with the inherent power imbalances that perpetuate the harmful notions of “well” and “unwell” that permit and legitimise patronising and punitive treatment of people experiencing crises and living with challenging mental health. Charities might pick-up the language of reform, even seemingly radical notions of mental health such as leading by ‘lived experience’ but this should not be taken as inherently positive (for example, see NSUN’s blog series on the limitations of “lived experience” models). Workers within charities may live by these principles. But, most charities are still held to particular “safeguarding” practices that rely on the criminal justice system. For example, when facing someone who is threatening harm against themselves they will be forced to call the crisis team, who then call the police, leading to the person being at risk of criminalisation and sectioning.
But what can we do once the crisis is happening, or has happened?
Create survivor-led safeguarding and crisis-management toolkits and guides for practitioners (and everyday people): there are plenty of organisations that are already doing this alternative work and demonstrating clearly, powerfully, and with success that these techniques work. For example, NSUN and Act Build Change developed a collaborative guide called The Shape of Safety, aimed at changing how practitioners respond to young people; Campaign for Psych Abolition (CPA) have developed how-to guides for crisis plans, and also for how to intervene safely if we see someone in crisis without calling police; Recovery in the Bin are also a survivor-led network that campaigns against notions of recovery as a linear institutionalised term, redesigning the “recovery star” to accurately represent how mental health interacts with structural inequality. What is important is that all of these are based in fundamental non-legalised principles of agency and autonomy – where the person in crisis is given the information and care they need to decide what they want to do – not what is thought best by neoliberal regimes of productivity.
2. De-centre the neuro norm: no matter how well-meaning concerns are, it does not mean someone is “unwell” if they choose to not live their lives as you would. Despite the proliferation of discussions around neurodiversity and mental health in everyday life, a damning perspective on certain types of “mad” people persists. This is a class issue - if someone is “too mad” (they lose their job, they never had one in the first place, they never “get fit to work”) they are not afforded the same social currency as someone who “claims” their neurodiversity, but still “functions”. Indeed, neurodiversity has become a buzzword without the inherently harmful structures that enable some people to be termed “unwell” in the first place being challenged. Anything that reifies and legitimises big-pharma in our everyday life is not a win. Moreover, judging someone as having “lack of capacity” because they do not function as you do is fundamentally ableist. Focusing on what someone wants to do, focusing on how someone can express themselves is essential to making sure people feel autonomous to make their own decisions.
3. Pro-actively resist the neoliberalising of mental health: this is about rejecting the fundamental idea that mental health happens to an individual and therefore requires individual-based responses, including that the individual needs to “recover”. Mental health is a community problem; it is a response to the world around us. Recovery in the Bin’s ‘Unrecovery Star’ rejects the linear notion of “recovery” that many mental health care systems dictate is essential to someone’s survival. It shows how structural inequalities like poverty, loss of the welfare state, unstable housing, and sexism, homophobia, transphobia, and racism make that recovery difficult (sometimes impossible). They write, ‘We really mean it when we say some of us will never feel ‘recovered’ due to the social and economic conditions we experience because they frame everything’. Moreover, we need to actively resist viewing “improving” mental health through capitalism: that you are only well if you are productive, that you go to work, that you make money, that you reproduce reproduce reproduce. Some people need some type of care and support forever - they will never work, will never make money. This does not mean they are less than.
4. Wide-spread education about what mental health crises actually consist of: despite the prevalence of conversations about mental health that are framed through vague notions of celebrities telling us “it’s ok to not be ok”, there is a dangerous lack of information about the realities of difficult mental health, what it looks like, what it means, and how it can be supported. The general public often responds to some diagnoses, in particular, for example, paranoid schizophrenia, with discomfort and fear because of how mental health is conveyed by the media. You’re more likely to be struck by lightning than you are to be harmed by someone with a diagnosis of paranoid schizophrenia. In fact, they are far more likely to harm themselves, in part because of the internalised stigma, shame, and social isolation that makes their everyday lives impossible to live. Rather than engaging with someone in pain, the state works to warehouse that problem away and most of us are complicit in this warehousing - whether that is a literal shuffling out of sight, or a refusal to see.
5. Creating community structures that have the resources they need to function. Respondents in a recent study (Logan and D’Ambrozio, 2025) noted three common barriers to performing anti-carceral mental health work: economic limitations, co-optation by formal systems of care, and difficulty engaging stakeholders. This testimony suggests that we need more money and autonomy to build infrastructure and community. Specifically, participants lamented the lack of unrestricted resources for both maintaining and scaling up their practices of community care; noting that funding often came with requirements that went against their organis ational values. Notably, however, not a single respondent to the study noted a lack of rights as a barrier to doing their work.
“There is no abolition without anti-psychiatry”
To be clear, this is not a call for the abandonment of people who are experiencing “difficult” mental health – people who need this care benefit from other people being there, if they want it. They still need to be kept safe. But, secure wards, forced medications, and probation-like treatment orders, just like prison, do not keep us safe. As CPA tell us, in the pursuit of the abolition of prisons, we must dismantle the systems and structures that enable psychiatry to be seen as “caring” and “benevolent” (Campaign for Psychiatric Abolition, 2022). Statutory mental health care does not care. We must (continue to) build communities that can do this work, so that when each of us need more support we can get it – freely, safely.
References
Ben-Moshe L (2020) Decarcerating Disability: Deinstitutionalization and Prison Abolition. Minneapolis: U of Minnesota Press.
Campaign for Psychiatric Abolition (2022) ‘There is no abolition without anti-psychiatry’: The Fight for Psychiatric Abolition.
D’Souza R (2018) What's wrong with rights? Social movements, law and liberal imaginations. Pluto Press.
Davar BV (2020) From mental illness to disability: Choices for women users/survivors of psychiatry in self and identity constructions. Disability Studies in India. Routledge India, pp.333-362.
Frazer-Carroll M (2023) Mad World: The Politics of Mental Health. Pluto Press. Hunt A (2010) Marxist theory of law. A companion to philosophy of law and legal theory. 350-360.
Karter JM (2021) Inclusion toward transformation: Psychosocial disability advocacy and global mental health. University of Massachusetts Boston.
Logan J and D’Ambrozio G (2025) “It’s Possible and There’s People Doing It Now”: Examining Experiences of Organizers and Health Professionals in Creating Community-Based Alternatives to Emergency Crisis Care. Journal of Humanistic Psychology 0(0): 00221678251337495.
Moncrieff J (2013) How can Community Treatment Orders still be justified?
NHS England (2024) Mental Health Act Statistics, Annual Figures, 2023-24.
O’Loughlin A and Peay J (2023) Mental health, mental disabilities, and crime. The Oxford Handbook of Criminology. 201.
Schenwar M and Law V (2020) Prison by Any Other Name: The Harmful Consequences of Popular Reforms. The New Press.
Scull A (2021) UK Deinstitutionalisation: Neoliberal Values and Mental Health. In: Bouras N and Ikkos G (eds) Mind, State and Society: Social History of Psychiatry and Mental Health in Britain 1960–2010. Cambridge: Cambridge University Press, pp.306-314.
Lizzie lectures in Criminology at Birkbeck, University of London. They research surveillance, anti-trans politics, mental health, and the prison. They ran a community-led LGBTQI+ mental health project for seven years, based in North London.
Jenny is a Lecturer in Law at Royal Holloway, University of London. Her writing on fair housing, sexual violence, American legal history, and critical psychology have appeared in Feminist Legal Studies, Frontiers in Medical Sociology, Theory and Psychology, and the Journal of Housing and Community Development Law, among others. She is currently working on a book about the political economy of sexual violence in the United States. Jenny teaches at the Brooklyn Institute, and her next class What’s Wrong With Rights? Imperialism, Politics, and Power starts on Sunday, 13 July for 4 weeks.