In 2013, the Committee on Bioethics
of the Council of Europe (DH-BIO) started drawing up an additional protocol
to the Convention on Human Rights and Biomedicine (ETS No. 164,
“Oviedo Convention”), aimed at protecting the human rights and fundamental
freedoms of people with “mental disorders” with regard to the use of
involuntary placement and involuntary treatment.
this end, a drafting group was set up, which held its first meeting
on 19 and 20 June 2013.
On 1 October 2013, with a view to ensuring the maximum impact
of the Parliamentary Assembly’s views on the additional protocol’s
drafting process and its final result, the Committee on Social Affairs,
Health and Sustainable Development tabled a motion for a recommendation
entitled “Involuntary placement and treatment of people with psychosocial
disability: need for a new paradigm”, which this report originates
from. Referring to the United Nations Convention on the Rights of
Persons with Disabilities (CRPD) and its rights-based approach characterised
by non-discrimination, autonomy and inclusion of people with disabilities,
the motion stressed that the very principle of involuntary measures
for people with psychosocial disabilities (mental health problems)
was being challenged.
On 11 March 2014, jointly with the Bureau of the DH-BIO, the
drafting group organised a hearing of international non-governmental
organisations (INGOs) representing different stakeholders (including
patients, health professionals and people with psychosocial disabilities).
On 6 May 2014, the DH-BIO held a first exchange of views on a preliminary
draft additional protocol prepared by the drafting group on the
basis of DH-BIO delegations’ comments and INGOs’ remarks formulated
at the aforementioned hearing. At its meeting on 13 November 2014,
the DH-BIO held an exchange of views on the revised version of the
draft additional protocol.
On 24 March 2015, I presented to the Committee on Social Affairs,
Health and Sustainable Development an introductory memorandum in
which I raised my doubts about the compatibility of the draft additional
protocol with the CRPD and the appropriateness of elaborating, at
Council of Europe level, a legally binding instrument on involuntary
placement and treatment of people with psychosocial disabilities.
I also raised my concerns with regard to the additional protocol’s
drafting process, which was being conducted behind closed doors,
without direct involvement of disability rights organisations, as
required by the CRPD and the Assembly.
In order to ensure that the
Assembly’s views and concerns were heard at an early stage, I proposed
to make the memorandum available to the DH-BIO as well as the Commissioner
for Human Rights of the Council of Europe. The committee agreed
to this proposal.
5. On 5 May 2015, I attended the DH-BIO meeting and presented
in person the concerns raised in my introductory memorandum. The
DH-BIO considered that in the preparation of the additional protocol,
due account had been taken of existing legal instruments, in particular
the CRPD. At the same meeting, the DH-BIO agreed to make public
for consultation a draft version of the additional protocol.
6. The public consultation was launched in June 2015 and lasted
until 15 November 2015. In total, 39 submissions were received,
including from the Parliamentary Assembly’s General Rapporteur on
the rights of lesbian, gay, bisexual and transgender (LGBT) people,
the Commissioner for Human Rights, the Committee of experts on the
rights of people with disabilities of the Council of Europe, United
Nations bodies, the European Union Agency for Fundamental Rights
and non-governmental organisations (NGOs). There were mainly two types
of replies: those which had fundamental concerns about the draft
additional protocol, underlining the incompatibility of its approach
with the CRPD, and requesting that the proposal to draw up a protocol
be withdrawn; and replies with drafting proposals, implicitly or
explicitly accepting the approach taken by the draft additional
7. At its last meeting on 1 December 2015, the DH-BIO held an
exchange of views on the comments received during the public consultation.
Present during the discussions, I expressed my full trust that the concerns
raised by several human rights bodies with regard to the compatibility
of the draft additional protocol with the CRPD (for similar reasons
to those presented in my introductory memorandum) would be heard
by the DH-BIO. Considering the nature of the comments received,
the DH-BIO agreed to reflect on the possible ways forward on this
topic. To this end, DH-BIO delegations were invited to reply to
a number of questions, including on whether the DH-BIO should continue
its work on the additional protocol.
8. At its next meeting to be held from 31 May to 2 June 2016,
the DH-BIO will discuss possible ways forward on the issue, based
on delegations’ replies. By providing an official Assembly position
with regard to the draft additional protocol, this report aims to
contribute to the upcoming DH-BIO discussion.
2. The United Nations Convention
on the Rights of Persons with Disabilities and the paradigm shift
As clearly reflected above,
the issue of involuntary placement and treatment of people with
psychosocial disabilities cannot be addressed without due consideration
of the CRPD, which is the first global treaty on the rights of people
with disabilities. With 163 States Parties as of February 2016,
the CRPD is one of the most widely ratified of the United Nation’s
human rights treaties. A total of 41 member States of the Council
of Europe have ratified it, as well as the European Union.
It is currently the reference
instrument in the field of disability, in the light of which measures
taken at international and national levels are evaluated.
10. The CRPD does not create new rights or rights specific to
people with disabilities but reaffirms a number of substantive rights
for them. Disability is not formally defined in the CRPD, but its
Article 1 states that “[p]ersons with disabilities include those
who have long-term physical, mental, intellectual or sensory impairments
which in interaction with various barriers may hinder their full
and effective participation in society on an equal basis with others”.
Thus, the CRPD recognises that it is the various barriers
encountered by people with impairments which create the situation
of disability. This way of understanding disability is fundamentally
different from viewing disability as a consequence of the individuals’
impairment. It means that it is society’s failure to create an inclusive
environment that disables individuals rather than any mental or
intellectual conditions attached to the person.
the CRPD totally shifts the traditional approach where the disability
is perceived through the so-called medical model, which basically
sees the disabled person as the problem, and tries to adapt him/her to
fit into the world as it is. With the CRPD, persons with disabilities
become holders of rights (subjects) rather than being mere recipients
of charity or medical attention (objects). This also signifies a
move from paternalism to empowerment.
12. The CRPD also translates into legal terms the disability rights
movement’s slogan, “Nothing about us without us”, by obliging the
States Parties to engage in close and active consultation with the
organisations representing people with disabilities when they develop
and implement legislation and policies in order to apply the convention.
Moreover, it sets up a committee (CRPD Committee) comprising 18
independent experts, which is responsible for monitoring the implementation
of the convention. Where the States which have ratified the Optional
Protocol to the CRPD are concerned, the CRPD Committee may also
receive and examine individual and collective petitions.
3. Legal framework on involuntary
placement and treatment of people with psychosocial disabilities
Historically, as a result of
the medical model, curing or managing disability revolved around
identifying and understanding it, and learning to control it and
alter its course. Therefore, the response to disability has been
mainly one of social compensation through the development of specialist
caring services (in institutions). However necessary and well-intentioned
they may be, such responses have compounded the problem of exclusion
and led to stigmatisation. Taken together with the risk of violence
inherent to institutionalisation, they are no longer considered
as appropriate responses to disability. States have therefore been
called upon to give up the culture of institutionalisation of people
with disabilities and move towards community-based services.
14. Nevertheless, all over Europe, hundreds of thousands of people
with disabilities continue to live in institutions, sometimes against
their will. This is the case in particular for people with psychosocial
disabilities. In fact, mental health laws in many countries authorise
their involuntary placement and treatment based on their alleged
danger to themselves or to others.
3.1. The CRPD and the CPRD Committee’s
15. The CRPD does not explicitly
refer to involuntary placement or treatment of persons with disabilities.
Its Article 14.1 reiterates the formulation of the right to liberty
and security and clearly states that the deprivation of liberty
based on the existence of disability would be contrary to the CRPD.
16. In September 2015, the CRPD Committee adopted guidelines with
a view to providing further clarification on Article 14. It noted
that the legislation of several States Parties, including mental
health laws, still provided instances in which persons may be detained
on the grounds of their actual or perceived impairment, provided
there were also other reasons for their detention, including that
they were deemed dangerous to themselves or others. According to
the CRPD Committee, this practice is incompatible with Article 14,
discriminatory in nature and amounts to arbitrary deprivation of
In the aforementioned guidelines, referring to the negotiations
leading up to the adoption of the CRPD, the Committee noted that
Article 14 prohibited the deprivation of liberty on the basis of
actual or perceived impairment even if additional factors or criteria
were also used to justify the deprivation of liberty.
It stressed that involuntary
commitment to mental health facilities carried with it the denial
of the person’s legal capacity to decide about care, treatment and
admission to a hospital or institution, and therefore violated Article
12 (Equal recognition before the law) in conjunction with Article
Already in 2014, in its General Comment No. 1 concerning Article
12, the CRPD Committee had clarified that States Parties should
refrain from the practice of denying the legal capacity of persons
with disabilities and detaining them in institutions against their
will, either without the free and informed consent of the persons concerned
or with the consent of a substitute decision-maker
, and considered
this practice to be an arbitrary deprivation of liberty violating
Articles 12 and 14 of the Convention.
19. In the same General Comment, the CRPD Committee stated the
following concerning involuntary treatment: “The right to enjoyment
of the highest attainable standard of health (art. 25) includes
the right to health care on the basis of free and informed consent.
States parties have an obligation to require all health and medical
professionals (including psychiatric professionals) to obtain the
free and informed consent of persons with disabilities prior to
any treatment … 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 rights to personal integrity
(art. 17); freedom from torture (art. 15); and freedom from violence,
exploitation and abuse (art. 16). This practice denies the legal
capacity of a person to choose medical treatment and is therefore
a violation of article 12 of the Convention. … Forced treatment
is a particular problem for persons with psychosocial, intellectual
and other cognitive disabilities.”
On this basis, the CRPD Committee recommended that “States
parties abolish policies and legislative provisions that allow or
perpetrate forced treatment, as it is an ongoing violation found
in mental health laws across the globe, despite empirical evidence
indicating its lack of effectiveness and the views of people using mental
health systems who have experienced deep pain and trauma as a result
of forced treatment”.
3.2. Council of Europe instruments
3.2.1. European Convention on Human
of the European Convention on
Human Rights (ETS No. 5, “the Convention”) explicitly allows for
the detention of persons of “unsound mind”. The European Court of
Human Rights (“the Court”) has established when the deprivation
of liberty on grounds of “unsound mind” could be justified: either
the person concerned constitutes a serious threat because of his
or her violent behaviour, or the detention is required for therapeutic
reasons. The Court also established criteria concerning the medical
assessment, which should be based on the person’s actual state of
mental health and not solely on past events, as well as on the thresholds which
must be met for the deprivation of liberty to comply with Article
Moreover, the Court set some procedural
safeguards, such as the requirement for a speedy determination of
the lawfulness of the detention in situations where people are detained
in psychiatric institutions.
22. The Convention does not contain any specific provision on
involuntary treatment. However, relevant cases brought before the
Court have been examined under Articles 3 (prohibition of torture)
and 8 (right to respect for private life). In the landmark case
of Herczegfalvy v. Austria concerning
an applicant who had been placed under guardianship, forcibly administered
food and neuroleptics, isolated and handcuffed to a security bed
(with consent to treatment from his guardian), the Court considered
that it was for the medical authorities to decide on therapeutic
methods to be used for patients entirely incapable of deciding for
themselves. As a general rule, a measure which was a therapeutic
necessity, could not be regarded as inhuman or degrading, but the
medical necessity of a measure had to be convincingly shown.
3.2.2. Oviedo Convention
Article 7 of the Oviedo Convention
explicitly authorises the involuntary treatment of persons who have
a “mental disorder” of a serious nature, but only in cases where
without such treatment, there is likely to be serious harm to the
health of the person concerned. Moreover, the treatment must aim
to alleviate the mental health problem. This provision constitutes
an exception to the general rule of consent enshrined in Article
Moreover, Article 6, concerning the protection
of persons not able to consent, specifies in its paragraph 3 that “where,
according to law, an adult does not have the capacity to consent
to an intervention because of a mental disability, a disease or
for similar reasons, the intervention may only be carried out with
the authorisation of his or her representative or an authority or
a person or body provided for by law”.
3.2.3. Committee of Ministers Recommendation
In 2004, following a process
of reflection conducted within the Council of Europe on the protection
of persons with “mental disorders”, during which a public consultation
was carried out on the basis of a White Paper
, the Committee of Ministers adopted Recommendation
concerning the protection of the human rights and dignity
of persons with mental disorder. Concerning involuntary placement,
this recommendation follows the interpretation of Article 5 of the
European Convention on Human Rights and confirms the Court’s approach.
It brings together the safeguards elaborated by the Court and lays
out thresholds that should be met before a decision can be taken
on placement. In terms of involuntary treatment, the recommendation
goes beyond the European Convention on Human Rights and the Oviedo
Convention and requires, for instance, that involuntary treatment
form part of a written treatment plan, a safeguard that ensures improved
monitoring of whether the medical decisions were based on sound
evidence and whether the treatment was the least restrictive possible.
3.3. Commissioner for Human Rights
In recent years, the Commissioner
has issued three papers concerning the rights of people with disabilities,
which are clearly inspired by the CRPD rather than Council of Europe
instruments. In this context, the Commissioner has been somewhat
critical towards the involuntary placement and treatment of people
with disabilities. Indeed, pointing out that people with disabilities
were sometimes forcibly confined to institutions by court order,
or by laws which allow placement and forcible treatment of people
who are assessed as having a mental illness of a nature or degree
to “warrant” confinement, the Commissioner said that Article 14
of the CRPD countered that and prohibited deprivation of liberty
on the basis of disability.
More specifically, in his report on Norway, for example, the
Commissioner urged the authorities to “reform legislation on involuntary
placements in a way that it applies objective and non-discriminatory
criteria which are not specifically aimed at people with psychosocial
disabilities, while ensuring adequate safeguards against abuse for
the individuals concerned”.
The Commissioner also
stated that medical treatment should be based on free and fully
informed consent with the exception of life-threatening emergencies
when there is no disagreement about the absence of decision-making
4. Should the Council of Europe
draw up the additional protocol?
4.1. Compatibility of the draft
additional protocol with the CRPD
In June 2011, when the then
Steering Committee on Bioethics of the Council of Europe (CDBI)
agreed to include the elaboration of
the additional protocol in its work programme, this was the outcome
of three years of reflection about the relevance and the added value
of a new legally binding instrument in this field. To that end,
the CDBI had evaluated the impact of Recommendation Rec(2004)10
also asked the Steering Committee on Human Rights (CDDH) and the
European Committee for the Prevention of Torture and Inhuman or
Degrading Treatment or Punishment (CPT) for their opinion on the
desirability of an additional protocol. Both the CDDH and the CPT
backed the drafting of a binding instrument in this field.
28. The additional protocol is intended to develop, on the basis
of the provisions of Recommendation Rec(2004)10 and for the first
time in a legally binding instrument, the provisions of Article
5 of the European Convention on Human Rights and Article 7 of the
Oviedo Convention. By doing so, it aims to give a higher legal rank
to a number of fundamental principles for the protection of people
with “mental disorders” with regard to involuntary placement and
treatment, which then would serve as a reference in particular for
the elaboration or the revision of the relevant national legislations.
29. However, the Council of Europe instruments the draft additional
protocol aims to build upon fall below the CRPD standards, as they
authorise the involuntary placement and treatment of people on the
basis of their “mental disorder”, a practice clearly rejected by
the CRPD Committee because of its discriminatory nature. This may
sound severe, especially considering that the rationale behind these
instruments and the draft additional protocol is the protection
of people with psychosocial disabilities from human rights abuses.
However, one should not forget that these instruments date back
to the pre-CRPD era, and thus reflect the medical model of disability
prevalent at the time of their adoption.
30. Consequently, the draft additional protocol, which is based
on an identical approach to that of other Council of Europe instruments,
is anything but compatible with the CRPD. Major human rights bodies’ comments
received during the public consultation reinforce this conclusion.
4.2. Criticism received during
the public consultation on the draft additional protocol
In fact, in their comments,
both the Commissioner and the Committee of experts on the rights
of people with disabilities of the Council of Europe consider that
the CRPD, as the international benchmark in the field of disability,
should be the point of departure for any work of the Council of
Europe in this area. The Commissioner, while fully sharing the concerns
expressed in my introductory memorandum,
only disagrees with the draft additional protocol’s approach (which
he considers to be incompatible with the CRPD and his own approach),
but also clearly challenges the added value of a legally binding
instrument offering safeguards for the use of involuntary measures.
He eloquently points out that the lack of adequate safeguards for
the use of involuntary measures and resulting violations is part
of a far larger phenomenon: such safeguards often prove inadequate
in practice, owing to the shortcomings of legal systems and their
inherently discriminatory nature.
also stresses the potential risks in case of the adoption of the
draft additional protocol, including in particular a conflict between
international norms at the global and European levels. In a constructive
approach, the Commissioner suggests that instead of an additional
protocol on involuntary measures, the DH-BIO provides guidance with
a view to reducing the need for coercion in psychiatry in the first
place (including by promoting alternatives to involuntary measures)
and fighting against discrimination of persons with psychosocial
As could be expected, the four United Nations bodies which
submitted comments on the draft additional protocol
that the latter falls short of, or are expressly in conflict with
the human rights standards of persons with disabilities enshrined
within the CRPD and developed by the CRPD Committee. Noting that
the text is based on the out-dated medical model of disability,
they consider it problematic for the Council of Europe to draft
standards which do not take the CRPD’s paradigm shift into account.
They also recall States Parties’ obligation to refrain from engaging
in any act or practice inconsistent with the CRPD, including by
engaging in the negotiation of regional standards that are not in
line with the human rights approach to disability enshrined in the
CRPD. They fear that the adoption of the additional protocol risks
not only lowering the level of protection of persons with disabilities,
but also undermining the progressive shift in national laws and
policies in the field of disability law that is currently under
way. In a nutshell, they implicitly or explicitly encourage the
DH-BIO to withdraw from drawing up the additional protocol and pursue
other initiatives that would enhance the protection of rights of
persons with disabilities and help bring national legislation into
line with the CRPD.
The European Union Agency for Fundamental Rights, the Norwegian
ombudsperson on equality and non-discrimination, some patients associations
and NGOs raise similar concerns with regard to the draft additional
protocol. Other replies (mainly from ministries and health professionals)
support the general approach and/or make drafting proposals to the
34. As for the Parliamentary Assembly General Rapporteur on the
rights of LGBT people, his concerns focus on the term “mental disorder”
which, in the draft Protocol, is defined “in accordance with internationally accepted
medical standards”. The draft explanatory memorandum specifies that
the World Health Organization’s international statistical classification
of diseases and related health problems which concerns mental and
behavioural disorders (ICD-10) is an example of an internationally
accepted medical standard. However, as the General Rapporteur rightly
points out, ICD-10 covers a large variety of “mental disorders” including
“gender identity disorders”, implying that transgender persons could
be included in the scope of application of the draft additional
protocol. Based on the real example of a national legislation requiring transgender
persons seeking to change their legal gender to undergo confinement
in a psychiatric institution to be diagnosed with “transsexualism”,
the General Rapporteur fears that the Protocol could be used to
justify both the qualification of “mental disorder” for transgender
persons and their placement in psychiatric institutions. I fully
share his fears.
4.3. The right way forward
Some commentators and advocates
have argued that the CRPD means that no forced detention for mental
health reasons or any other disability will be permitted in any
circumstances. I do not think this is an accurate interpretation.
I believe there may be cases where involuntary measures are unavoidable.
However, such cases should be the exception,
most of all they should be neutrally defined so as to apply to all persons,
and not just to people with disabilities.
What I understand from the CRPD and the CRPD Committee’s interpretation,
as well as the critical comments received during the public consultation,
is that any legal instrument that keeps a link between involuntary
measures and disability will be discriminatory in nature and thus
violate the CRPD. The draft additional protocol discriminates against
people with psychosocial disabilities (and is therefore incompatible with
the CRPD) because it maintains the medical diagnosis (of having
a “mental disorder”) as the basis of the involuntary treatment and
placement, and does not subject other people who might be at risk
of being a danger to themselves or others to the same limitations
of their rights (for example, in the context of domestic violence, so-called
“honour crimes” or threatened murder-suicides in the family). This
does not mean that persons with disabilities, including those with
psychosocial disabilities, cannot be lawfully subject to detention
for care and treatment; it only means that “the legal grounds upon
which restriction of liberty is determined must be de-linked from
the disability and neutrally defined so as to apply to all persons
on an equal basis”.
I am aware of the challenges that the member States face in
reconciling the non-discrimination principles of the CRPD with traditional
mental health-care and human rights provisions. I am also aware
that there is much resistance from some member States to accepting
the CRPD Committee’s interpretation.
I believe that the question we should be asking ourselves is a question
of principle that is entirely independent from the position of some
member States: that is whether the Council of Europe can ignore
the CRPD’s interpretation by its monitoring body established under
international law and go ahead with drawing up an additional protocol which
is incompatible with the paradigm shift introduced by the CRPD,
without undermining its own credibility and taking the risk of creating
an explicit conflict between international norms at the global and
European levels? Can such an additional protocol fulfil the “advisability”
criterion required by the Committee of Ministers for drawing up
new legal instruments?
I truly don’t think
so. I believe that the Council of Europe should acknowledge the
position of the CRPD Committee and act accordingly. While we cannot
change already existing Council of Europe legal instruments adopted
before the CRPD, we can refrain from elaborating a new instrument
in this field, and especially a legally binding one.
Echoing the comments of the Commissioner for Human Rights,
we should also ask ourselves whether an additional protocol would
really have an added value and whether instead we should not be
focusing our energy on developing measures to increase the involvement
of persons with psychosocial disabilities in decisions affecting
their health, including by replacing their substitute decision-making
mechanisms by supported decision-making mechanisms (for example
by establishing support networks or a system of persons of trust),
abolish the plenary guardianship system whereby the legal capacity
of people with psychosocial disabilities can be removed, give up
the culture of institutionalisation and give consideration to alternatives
to care in institutions (for example community care), taking account
of the choices of people with disabilities.
39. In view of these elements, I come to the conclusion that the
DH-BIO should withdraw the draft additional protocol.
40. I trust that the Committee
of Ministers and the DH-BIO will hear the call made in this report,
as well as by several human rights bodies during the public consultation.
However, should this not be the case and the Council of Europe goes
ahead with the drafting of the additional protocol, disability rights
organisations should be fully involved in the drafting process.
The hearing of INGOs held in March 2014 was a welcome initiative, as
was the public consultation which took place in 2015. However, these
are by no means an appropriate or sufficient way of involving the
disability rights organisations. The latter should be involved in
the entire drafting process.
41. Finally, it goes without saying that the Assembly may initiate
another motion on the draft additional protocol with a view to being
involved in the drafting process should it continue despite the
many misgivings expressed by the Assembly, the CPRD Committee, the
Commissioner for Human Rights, and key United Nations organisations.
Should the Assembly choose not to do so, it will have the opportunity
to formulate its comments when the Committee of Ministers requests
its statutory opinion on the final version of the draft additional