Appendix – Comments on the draft additional
protocol to the Oviedo Convention, concerning the protection of
the human rights and dignity of persons with mental disorder, with
regard to involuntary placement and involuntary treatmentNote
1. Introduction
1. On 18 June 2018, the Council
of Europe Committee on Bioethics (DH-BIO) sent the draft Additional Protocol
to the Convention on Human Rights and Biomedicine (ETS No. 164,
“Oviedo Convention”), concerning the protection of the human rights
and dignity of persons with mental disorder, with regard to involuntary
placement and involuntary treatment, to the Parliamentary Assembly
for comments. Within the Assembly, under their respective terms
of reference, two committees are competent to deal with this matter: the
Committee on Social Affairs, Health and Sustainable Development
and the Committee on Equality and Non-Discrimination. These committees
held a joint hearing on 9 October 2018 on “Protecting the rights
of persons with psychosocial disabilities with regard to involuntary
measures in psychiatry”, with the participation of Ms Beatrice Ioan,
Chairperson of the Council of Europe Committee on Bioethics; Ms Catalina
Devandas-Aguilar, United Nations Special Rapporteur on the rights
of persons with disabilities; Ms Dunja Mijatović, Council of Europe
Commissioner for Human Rights; Mr Christos Giakoumopoulos, Director
General of Human Rights and the Rule of Law of the Council of Europe;
Ms Olga Runciman, Psychologist and owner of Psycovery.
The elements put forward by the speakers have been taken into account
in the present comments.
2. The Committee on Equality and Non-Discrimination thanks the
Committee on Bioethics for this opportunity to provide comments
to the draft protocol in the context of an informal consultation.
It recalls that the position of the Assembly has previously been
spelt out in
Recommendation 2091
(2016) on the case against a Council of Europe legal instrument
on involuntary measures in psychiatry, in which it “recommend[ed] that
the Committee of Ministers instruct the Committee on Bioethics to:
withdraw the proposal to draw up an additional protocol concerning
the protection of the human rights and dignity of persons with mental
disorder with regard to involuntary placement and involuntary treatment;
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 their health” and indicated that “[s]hould 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 recommended by the CRPD and Assembly
Resolution
2039 (2015) on equality and inclusion for people with disabilities”.
Note
3. The main thrust of the contribution of the committee in its
present comments is on equality and non-discrimination aspects.
Its reference is the landmark international instrument worldwide
for the protection of the rights of persons with disabilities, the
United Nations Convention on the Rights of Persons with Disabilities (CRPD).
This Convention, which puts persons with disabilities at its heart
and promotes the vision “Nothing about us without us”, has been
ratified by 46 of the 47 Council of Europe member States.
Note The
committee emphasises that it would be a matter of serious concern,
and dangerous for the rights of all persons with disabilities, if,
by adopting new international standards lower than those recognised
under the CRPD, the Council of Europe – the leading European human
rights organisation – undermined international human rights work
in this field. Indeed, the 46 member States that are Parties to
the CRPD have not only committed themselves to respecting the letter
of the latter’s provisions, but have also made a political commitment
to achieving the paradigm shift that this convention represents.
4. The principles of inclusion and protection of the rights of
persons with disabilities upheld in the CRPD are of primary importance
in the disability-related work of the Committee on Equality and
Non-Discrimination and of its Sub-Committee on Disability, Multiple
and Intersectional Discrimination. In its
Resolution 2039 (2015) on equality and inclusion of persons with disabilities,
based on a draft resolution unanimously adopted by the Committee
on Equality and Non-Discrimination, the Assembly called on member
States to “give up the culture of institutionalisation, … and to
give consideration to alternatives to care in institutions, taking
account of the choices of people with disabilities”.
2. General considerations
“Of
all tyrannies, a tyranny sincerely exercised for the good of its
victims may be the most oppressive. … [T]hose who torment us for
our own good will torment us without end for they do so with the
approval of their own conscience.” C.S. Lewis, God in the Dock;
Essays on Theology (Making of Modern Theology), as quoted by Ms Runciman
at the hearing of 9 October 2018.
1. As was pointed out at the hearing
of 9 October 2018, there is agreement that persons subjected to involuntary
measures in psychiatry face grave violations of their human rights,
and that States must act to stop this. The judgments of the European
Court of Human Rights and the reports of the European Committee
for the Prevention of Torture and Inhuman or Degrading Treatment
or Punishment (CPT) all too clearly show this reality. Yet many
Council of Europe member States have legislation that provides for
involuntary measures, and continue to apply it today.
2. There is also consensus that saving lives and supporting persons
with psychosocial disabilities, including in situations of extreme
crisis or severe distress, is a common goal, and that member States
need guidance in order to design and implement effective alternative
measures that respect the dignity and rights of persons with psychosocial
disabilities.
3. Different approaches exist, however, as to the best means
of achieving this goal. As explained by its Chair at the hearing
of 9 October 2018, the Committee on Bioethics takes the view that
for as long as laws providing for involuntary measures exist and
are applied, clear safeguards must be in place to ensure that they are
used only as a last resort, as well as to enable persons with psychosocial
disabilities to exercise their rights. However, the United Nations
Special Rapporteur emphasised that involuntary measures have always
been constructed on the basis that they should be exceptional and
surrounded by safeguards – yet it is precisely in those States where
such legislation is in place that the rate of recourse to involuntary
measures is the highest. Thus, in essence, safeguards in this field
may introduce more hurdles, but they cannot achieve what is most urgently
needed: that is, to overturn the status quo. She and other speakers
moreover emphasised that there is no evidence that coercive measures
reduce self-harm. To the contrary, as both Ms Runciman and a speaker on
behalf of the European Network of (ex-)users and survivors of psychiatry
(ENUSP) emphasised, coercive measures destroy the trust of the person
subjected to them in the capacity of psychiatry to support them,
and lead to their avoidance of all contact with the health care
system. This is another reason why, as one speaker stressed, “coercion
is not care”.
4. Alternatives to coercion already exist. Examples include home
intervention strategies, crisis or respite services, peer-run initiatives
and advance planning. While little academic writing yet exists in
this field, a literature review published in October 2018 shows
that such alternatives can be highly successful, and are worthy
of considerably more attention from States.
Note
5. It is important to emphasise that persons with psychosocial
disabilities are frequently disempowered, and that coercive measures
are the epitome of this disempowerment. The failure to recognise
the capacity of persons with psychosocial disabilities to decide
for themselves is one of the most fundamental forms of discrimination
that they face, as discussed further below. The stereotypes and
stigmas that surround persons with psychosocial disabilities in
society moreover lead to widespread perceptions that all persons
with psychosocial disabilities are dangerous, both to themselves
and to others. This in turn leads all too rapidly to their exclusion
from society. All of these factors heighten the discrimination faced
by persons with psychosocial disabilities. As Ms Runciman made clear,
it is crucial to listen to the stories of persons with psychosocial disabilities
to understand their lived history, and to understand why they are
insistent that what is needed is not more of the same, but a paradigm
shift.
6. One element of this paradigm shift is to cease to use the
term “persons with mental disorder”, as they are referred to in
the title and text of the draft protocol, and to take on board and
use the terminology of the CRPD Committee, i.e. “persons with psychosocial
disabilities”. Indeed, the choice of the term is not neutral. It reflects
a different approach to the matter, or an emphasis on different
aspects and concerns. While “persons with mental disorder” reflects
the approach long used in psychiatry, “persons with psychosocial
disabilities” is the accepted human rights terminology.
3. Specific issues concerning equality
and non-discrimination
11. States Parties to the CRPD have
undertaken to “refrain from engaging in any act or practice that
is inconsistent with the … Convention and to ensure that public
authorities and institutions act in conformity with the … Convention”
(Article 4(d) of the CRPD), and to “take all appropriate measures
to eliminate discrimination on the basis of disability by any person,
organization or private enterprise” (Article 4(e) of the CRPD).
“States Parties shall prohibit all discrimination on the basis of
disability and guarantee to persons with disabilities equal and
effective legal protection against discrimination on all grounds”
(Article 5.2 of the CRPD). It is the potential conflict of the draft
additional protocol with these commitments, in particular as regards
respect for the right to equality, that is at the heart of the committee’s
comments below.
12. Equal recognition before the law
(Article 12 of the CRPD): The rights of all persons with
disabilities, including those with psychosocial disabilities, to
recognition everywhere as persons before the law, and to enjoy legal
capacity on an equal basis with others in all aspects of life, are
enshrined in Article 12 of the CRPD. The CRPD Committee has drawn
attention to the importance of distinguishing between a person’s
legal capacity (legal standing and legal agency) and their mental
capacity (decision-making skills).
Note Where a person’s mental capacity is impaired,
special measures may be needed in order to guarantee their right
to enjoy their legal capacity on an equal basis with others, in
accordance with Article 12 of the CRPD. Depriving them of their
legal capacity is however not compatible with their right to equal
recognition before the law under the CRPD.
13. The right to liberty and equal
recognition before the law (Articles 14 and 12 of the CRPD): The
CRPD provides that “the existence of a disability shall in no case
justify a deprivation of liberty” (Article 14(b)). The CRPD Committee
has moreover made clear that “denial of the legal capacity of persons
with disabilities and their detention in institutions against their
will, either without their consent or with the consent of a substitute decision-maker,
constitutes arbitrary deprivation of liberty and violates articles
12 and 14 of the [CRPD]”.
Note Involuntary placement is discriminatory
because, quite simply, it ignores the legal capacity of the person concerned.
Special measures are instead needed in order to guarantee the right
to equality and respect for the principle of non-discrimination,
such as providing support in decision-making on health-related matters
or alternative service models that are respectful of the will and
preferences of the person.
Note Such measures eliminate the “need”
to have recourse to involuntary placement.
14. Autonomy, free and informed consent
and equal recognition before the law (Articles 25 and 12 of the CRPD): As
part of States’ recognition that persons with disabilities have
the right to the enjoyment of the highest attainable standard of
health without discrimination on the basis of disability, Article 25(d)
of the CRPD requires that health care be provided to persons with
psychosocial disabilities on the basis of their free and informed
consent. As the United Nations has recognised, free and informed
consent to treatment is meaningless unless the person concerned
also has the right to refuse it.
Note There is no justification
for treating persons with psychosocial disabilities differently
from others in this respect: again, ignoring their legal capacity is
not compatible with their right to equal recognition before the
law, and special measures should instead be implemented wherever
necessary to guarantee access to supported decision-making processes.
15. Exposure to additional human rights
violations once subjected to involuntary placement and/or treatment (Articles 15
and 17 of the CRPD and Articles 3 and 13 of the European Convention
on Human Rights): Broad agreement exists that there is
an “unacceptably high prevalence of human rights violations in mental
health settings” and that immediate measures to bring about change
in this field are needed.
Note In
addition to the violations of the right to equal recognition before
the law outlined above, persons with psychosocial disabilities are
exposed to further human rights violations when they are placed
involuntarily in mental health settings. In particular, they may
disproportionately experience violations of their right to physical
integrity, notably due to the use of force, restraints (whether
physical or chemical, including sedation), isolation or seclusion,
in breach of Article 17 of the CRPD and (in particular where the
use of such measures is prolonged) in breach of the prohibition
on torture and inhuman or degrading treatment under Article 15 of
the CRPD and Article 3 of the European Convention on Human Rights.
Note The
World Health Organization itself recognises that “psychiatric institutions
… are associated with gross human rights violations including inhuman
and degrading treatment and living conditions”, and that these violations
“often occur behind closed doors and go unreported”
Note – meaning that no investigation
into such violations is carried out, and no redress can be granted.
Persons with psychosocial disabilities thus face specific and serious
violations of their rights under both the substantive and procedural
arms of Article 3 and under Article 13 of the European Convention
on Human Rights, as well as under Articles 15 and 17 of the CRPD.
In short, the involuntary placement and/or treatment of persons
with psychosocial disabilities based solely on their disability
is also discriminatory because it exposes them to a series of grave
human rights violations to which other persons are not subjected.
16. The Committee on Bioethics has argued that the safeguards
included in the draft additional protocol are designed to assist
States in aligning their legislation with the case law of the Court
in the field of involuntary measures. However, it was equally argued
at the hearing of 9 October 2018 that the Court’s case law is evolving
and coming closer and closer to the standards of the CRPD. The risk
is thus that the additional protocol may crystallise standards that
are not only today in conflict with the CRPD, but will soon be lower
than those set under the European Convention on Human Rights, as
interpreted in the case law of the Court. Member States, of course,
remain under the obligation to give prompt and full execution to
the judgements of the European Court of Human Rights.
Conclusions
17. For all of the above reasons,
the Committee on Equality and Non-Discrimination considers that involuntary
placement and treatment violate the right of persons with psychosocial
disabilities to equality and to be free of discrimination, and reiterates
the view already expressed by the Parliamentary Assembly that the Council
of Europe should cease its work on the draft additional protocol
to the Oviedo Convention. Indeed, this work can only serve to refine
mechanisms that by their very nature perpetuate discrimination and
other human rights violations. Not even the most careful wording,
nor the strongest emphasis on the need to prioritise the autonomy
of persons with psychosocial disabilities, can eliminate this flaw,
which is inherent in the very conception of the draft additional
protocol.
18. To guarantee the right of persons with psychosocial disabilities
to equality and non-discrimination, all sectors of the Council of
Europe need to work together to ensure that these persons are not
subjected to involuntary placement or treatment and that the human
rights standards designed today are forward-looking and protect
human rights to the highest degree. States should invest in promoting
a paradigm shift from coercive to alternative measures, ensuring
that alternative treatments are available and accessible. The Council
of Europe should focus its efforts and resources on supporting its
member States in this process.
