Reply to Recommendation | Doc. 14199 | 16 November 2016
The case against a Council of Europe legal instrument on involuntary measures in psychiatry
The Committee of Ministers has carefully examined
Parliamentary Assembly Recommendation
2091 (2016) on “The case against a Council of Europe
legal instrument on involuntary measures in psychiatry” and has forwarded
it to the relevant committees and bodies for information and comments. 
The Committee of Ministers agrees with the Assembly that the
utmost should be done to promote alternatives to involuntary measures.
It nevertheless considers that in exceptional situations where there
is risk of serious harm to the health of the person concerned or
to others, and in the absence of alternatives, involuntary measures
could be justified subject to strict protective conditions. The
Court has said that “a mental disorder may
be considered as being of a degree warranting compulsory confinement
if it is found that the confinement of the person concerned is necessary
as the person needs therapy, medication or other clinical treatment
to cure or alleviate his/her condition, but also where the person
needs control and supervision to prevent him/her from, for example,
causing harm to him/herself or other persons.” For this reason,
involuntary measures in psychiatry continue to be provided for in
the laws of member States and regularly applied.
The Committee of Ministers observes, however, that there is
a wide variation in the application of such measures and notes in
this context the number of cases regularly brought before the European
Court of Human Rights that relate to violations as a result of involuntary
measures. Bearing in mind this reality, the Committee considers
that an Additional Protocol to the Oviedo Convention could be an
effective tool to ensure that in all circumstances, involuntary
measures are embedded with the guarantees required by the European Convention
on Human Rights so as to (i) safeguard the human rights of the person
concerned, and in particular provide the
possibility for the right to an effective remedy against such a
measure and (ii) prevent violations of the Convention similar to
those already found by the European Court of Human Rights. Better protecting
the rights of the persons concerned both in law and in practice
and strengthening the necessary safeguards would be essential to
ensure that involuntary measures are exceptional and used as a last
resort in the absence of alternatives.
The Committee of Ministers agrees on the importance of information exchange and sharing of best practices with a view to the complementary development of guidelines to reduce the use of involuntary measures and that the CAHDPH has a particularly important role to play in this context.
With regard to paragraph 12 of the Assembly recommendation, the Committee of Ministers notes that for the purpose of the preparation of the draft protocol, several consultation procedures have taken place, including with international non-governmental organisations (representing patients and their families, health professionals, human rights defenders and advocacy groups). However, as has been suggested by the Assembly, it would encourage the DH-BIO to directly involve disability rights organisations to participate in the work still to be undertaken.
Finally, the Committee of Ministers reiterates that involuntary measures should be exceptional and only be envisaged in the absence of alternatives. It is convinced that the possible drawing up of a legal instrument to lay down the necessary framework for such measures within the Council of Europe would not diminish in any way the credibility of the Organisation, but would on the contrary contribute to prevention of abuses and encourage the progressive transition to a more uniform application of voluntary measures in psychiatry by the member States, in accordance with the spirit of the United Nations Convention on the Rights of Persons with Disabilities.