B Explanatory memorandum
by Ms Carmen Leyte, rapporteurNote
1 Introduction
1. The idea of developing an additional
protocol to the Convention on Human Rights and Biomedicine (ETS No.
164, “Oviedo Convention”) arose from the observation made in 2004
by the Steering Committee on Bioethics (CDBI)
Note that
involuntary measures were sometimes decided in member States without
the necessary legal safeguards to ensure that they were applied
only in exceptional circumstances and as a last resort, and to guarantee
that the persons concerned could effectively exercise their rights.
2. The Committee of Ministers then mandated the Committee on
Bioethics (DH-BIO) to develop an instrument to strengthen legal
safeguards and ensure that involuntary measures were effectively
applied only in exceptional circumstances and as a last resort.
Work began in 2012 and was completed in 2020.
3. The Parliamentary Assembly was formally seized for opinion
on this draft protocol in February 2025 and transmitted this request
to the Committee on Social Affairs, Health and Sustainable Development.
On this occasion, other texts were also submitted to it: the draft
recommendation on respect for autonomy in mental healthcare, the
report on the case law of the European Court of Human Rights on
the rights of persons in relation to involuntary placement and treatment
in mental healthcare facilities and the compendium of good practices
to promote voluntary measures in mental health services.
2 Reminder of the Assembly's previous
positions on the subject
4. The rapporteur recalls that,
on several occasions, the Assembly has expressed its views on the appropriateness
of a protocol on involuntary treatment and involuntary placement.
5. In its Recommendation 2091 (2016) “The case against a Council
of Europe legal instrument on involuntary measures in psychiatry”,
the Assembly recommended that the Committee of Ministers instruct
the DH-BIO to withdraw the proposal to draw up an additional protocol
on the protection of the human rights and dignity of persons with
mental disorders with regard to involuntary placement and involuntary
treatment and, instead to 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 their health.
6. In its Recommendation 2158 (2019) “Ending coercion in mental
health: the need for a human rights-based approach”, the Assembly
reiterated the urgency for the Council of Europe, as the leading
regional human rights organisation, to fully integrate the paradigm
shift initiated by the United Nations Convention on the Rights of
Persons with Disabilities (CRPD) into its work regarding the protection
of human rights and dignity of persons with mental health conditions
or psychosocial disabilities. It thus called on the Committee of Ministers
to prioritise support to member States to immediately start transitioning
to the abolition of coercive practices in mental health settings.
Finally, noting the continued widespread opposition to work on a
protocol, the Assembly invited the Committee of Ministers to redirect
efforts from the drafting of the protocol to the drafting of guidelines
on ending coercion in mental health.
7. Following on from this, in Recommendation 2227 (2022) “Deinstitutionalisation
of persons with disabilities”, the Assembly recommended that the
Committee of Ministers refrain from endorsing or adopting draft
legal texts which would make successful and meaningful deinstitutionalisation,
as well as the abolition of coercive practices in mental health
settings more difficult, and which go against the spirit and the
letter of the CRPD – such as the draft protocol.
8. While bearing in mind these previous positions, the rapporteur
examined all the texts that have been submitted to the Assembly
and wanted to hold hearings in order to take a fresh look at the
draft text.
3 Committee
hearings
9. The Committee on Social Affairs,
Health and Sustainable Development held two hearings, on 8 April
and 16 May 2025. During the first hearing, it emerged that the CDBIO,
which is responsible for drafting the protocol, believed that a
binding instrument would strengthen the protection of fundamental
rights in the context of involuntary measures by clarifying and
developing the standards of protection applicable to involuntary treatment,
based on the case law of the European Court of Human Rights. Conversely,
for the Committee on the Rights of Persons with Disabilities, the
draft protocol is in flagrant contradiction with the legal obligations
of member States under the CRPD and risks setting a dangerous precedent
by introducing less stringent standards that circumvent essential
international treaties and undermine the rights of persons with
disabilities.
10. At the second hearing, civil society organisations spoke out
strongly against the draft protocol. They either highlighted its
incompatibility with the CRPD and its ineffectiveness, or even its
counterproductivity in practice, or, more pragmatically, its uselessness,
pointing to the good practices of certain countries that have reduced
the use of coercion.
4 Analysis
by the rapporteur
11. As a doctor, the rapporteur
is aware that, given current practices in Europe, involuntary measures
cannot be phased out immediately. A paradigm shift is certainly
necessary, but there is no doubt that it will take a long time.
She therefore recognises that involuntary measures must be regulated,
as they cannot be completely abandoned overnight. An appropriate
legal framework should first seek to uphold the principle of autonomy
and only then “temporarily” regulate exceptional measures of last
resort.
12. The rapporteur notes that the additional texts transmitted
to the Assembly clarify the context in which the draft protocol
was prepared: it does not aim to encourage involuntary placement
and involuntary treatment, but to regulate a practice that must
be exceptional and a last resort. However, the protocol must be
autonomous, and its objective should be clear without the need for
accompanying texts.
13. The draft protocol should therefore have focused on respect
for the principle of autonomy and only subsequently provided a framework
for exceptional measures of last resort. The few limited changes
made to the draft text over the years do not go in this direction
and do not comply with the principle of non-discrimination. The
rapporteur points out in particular that replacing “persons with
mental disorders” with “persons” does not make any substantive change,
as most of the persons affected by involuntary measures are persons
with disabilities.
14. The rapporteur notes that the Committee of Ministers has decided
to continue work on the protocol despite the Assembly's concerns,
in particular regarding its incompatibility with the CRPD, concerns
shared by several prominent human rights bodies, including the former
Council of Europe Commissioner for Human Rights, the committee responsible
for monitoring the implementation of the CRPD, and the United Nations
High Commissioner for Human Rights.
15. In this regard, she proposes to recommend that the Committee
of Ministers ensure the legal certainty of the draft protocol, in
particular with regard to its compatibility with the CRPD, an instrument
ratified by all Council of Europe member States.
16. The rapporteur would also like to make a few comments on the
draft text. The provisions of the draft protocol would apply to
involuntary placement and involuntary treatment “with mental healthcare
services.” This territorial element, which is restrictive in principle,
should be defined. For example, as a doctor, she does not see whether
the case of a person who is experiencing a sudden and serious psychotic
episode at home or in the street and requires emergency treatment
could be covered. Yet it is precisely for this type of intervention that
she herself is required to take involuntary measures. In mental
healthcare services, including psychiatric institutions, it is much
easier to put in place appropriate mental healthcare measures with
the consent of the individuals concerned, in accordance with the
CRPD.
17. The reference in the preamble to the draft protocol to the
fact that “the work carried out at international level on the protection
of the dignity and rights of persons with disabilities, in particular
the United Nations Convention on the Rights of Persons with Disabilities”
is taken into account therefore appears to be incorrect and should,
if necessary, be amended. The same applies to the reference to “taking
into account [...] the previous work [...] of the Parliamentary
Assembly of the Council of Europe in this field” as the draft protocol does
not accurately reflect the Assembly’s position.
5 The
draft recommendation of the Committee of Ministers to member States
on respect for autonomy in mental healthcare
18. The rapporteur welcomes the
drafting of a recommendation on respect for autonomy in mental healthcare,
which, like the CRPD, aims to eliminate coercion and promote practices
based on autonomy. She also welcomes the publication of positive
resources such as the compendium of good practices to promote autonomy
in mental healthcare and refers to the World Health Organization's
“QualityRights” initiative, which supports human rights-based health
systems through training and reform.
19. The rapporteur considers that member States must focus their
efforts on the autonomy of individuals in order to eliminate involuntary
measures and thus comply with the CRPD. To this end, good practices
must be shared, and sufficient financial resources must be allocated
for early detection and treatment, as well as for the education
and training not only of health personnel but also of those who
come into contact with people with mental health problems. In addition,
research aimed at promoting respect for autonomy must be supported. Member
States must equip themselves with the means to eliminate involuntary
measures.
