The case against a Council of Europe legal instrument on involuntary measures in psychiatry
- Parliamentary Assembly
debate on 22 April 2016 (18th Sitting) (see Doc. 14007, report of the Committee on Social Affairs, Health and
Sustainable Development, rapporteur: Ms Guguli Magradze). Text adopted by the Assembly on
22 April 2016 (18th Sitting).
1. Involuntary placement and involuntary
treatment procedures give rise to a large number of human rights violations
in many member States, in particular in the context of psychiatry.
Relevant provisions of the European Convention on Human Rights (ETS
No. 5) and the Convention on Human Rights and Biomedicine (ETS No. 164,
“Oviedo Convention”), as well as Committee of Ministers Recommendation
Rec(2004)10 concerning the protection of the human rights and dignity
of persons with mental disorder, authorise but strictly regulate
the use of involuntary measures in psychiatry, with a view to protecting
people with mental health problems (better termed “people with psychosocial
disabilities”) from human rights abuses.
2. Since 2013, the Committee on Bioethics of the Council of Europe
(DH-BIO) has been working on drawing up an additional protocol to
the Oviedo Convention, aimed at protecting the human rights and fundamental
freedoms of people with mental disorder with regard to the use of
involuntary placement and involuntary treatment.
3. While the Parliamentary Assembly understands the concerns
that prompted the Committee on Bioethics to work on this issue,
it has serious doubts about the added value of a new legal instrument
in this field. Nevertheless, the Assembly’s main concern about the
future additional protocol relates to an even more essential question:
that of its compatibility with the United Nations Convention on
the Rights of Persons with Disabilities (CRPD).
4. During the public consultation on a draft version of the additional
protocol conducted in 2015, a number of high-profile human rights
bodies, including the Commissioner for Human Rights of the Council
of Europe and the committee which is responsible for monitoring
the implementation of the CRPD (“CRPD Committee”), expressed fundamental
concerns about the draft additional protocol, underlining the incompatibility
of its approach with that of the CRPD, and requested that the proposal
to draw up a protocol be withdrawn.
5. The Assembly recalls that since its entry into force in 2008,
the CRPD is the international benchmark in the field of disability,
in the light of which measures taken at international and national
levels are evaluated. Thus, the CRPD should be the point of departure
for any Council of Europe work in this area.
6. The CRPD does not explicitly refer to involuntary placement
or treatment of people with disabilities, including people with
psychosocial disabilities. However, Article 14 on liberty and security
of the person clearly states that a deprivation of liberty based
on the existence of disability would be contrary to the CRPD.
7. The CRPD Committee interprets Article 14 as prohibiting the
deprivation of liberty on the basis of disability even if additional
criteria, such as dangerousness to one’s self or others, are also
used to justify it. The committee considers that mental health laws
providing for such instances are incompatible with Article 14, are
discriminatory in nature and amount to arbitrary deprivation of
liberty, as other people who might be at risk of being a danger
to themselves or others are not subjected to the same limitations
of their rights. It also considers that forced treatment by psychiatric
and other health and medical professionals is a violation of the right
to equal recognition before the law and an infringement of the right
to personal integrity, among others.
8. In view of the above, the Assembly concludes that any legal
instrument that maintains a link between involuntary measures and
disability will be discriminatory and thus violate the CRPD. It
notes that the draft additional protocol maintains such a link,
as having a “mental disorder” constitutes the basis of the involuntary treatment
and placement, together with other criteria.
9. The Assembly notes that member States face challenges in reconciling
the non-discrimination principles of the CRPD with traditional mental
health-care and human rights provisions. It also notes that there
is resistance from some member States with regard to accepting the
above interpretation of the CRPD Committee. However, it considers
that the Council of Europe’s position ought to be independent from
the position of some of its member States. Ignoring the interpretation
of the CRPD by its monitoring body established under international
law would not only undermine the Council of Europe’s credibility
as a regional human rights organisation, but would also risk creating
an explicit conflict between international norms at the global and
10. The Assembly also notes that at their 1168th meeting, the
Ministers’ Deputies instructed the steering and ad hoc committees
to assess the necessity or advisability of drafting additional protocols
to the conventions for which they have been given responsibility.
It considers that an additional protocol drawn up in such circumstances
could not fulfil the “advisability” criterion required by the Committee
Consequently, the Assembly recommends that the Committee of
Ministers instruct the Committee on Bioethics to:
11.1 withdraw the proposal to draw
up an additional protocol concerning the protection of human rights and
dignity of persons with mental disorder with regard to involuntary
placement and involuntary treatment;
11.2 instead focus its work on promoting alternatives to involuntary
measures in psychiatry, including by devising measures to increase
the involvement of persons with psychosocial disabilities in decisions affecting
Should a decision to go ahead with the additional protocol
nevertheless be taken, the Assembly recommends that the Committee
of Ministers encourage the Committee on Bioethics to directly involve
the disability rights organisations in the drafting process, as
required by the CRPD and Assembly Resolution 2039 (2015)
and inclusion for people with disabilities.