The European Disability Forum (EDF), Mental Health Europe (MHE), the European Network of (Ex-)Users and Survivors of Psychiatry (ENUSP), and the European Association of Service Providers for Persons with Disabilities (EASPD) welcome the continuation of the work of the Council of Europe’s Steering Committee for Human Rights in the fields of Biomedicine and Health (CDBIO), to promote the autonomy of persons in mental healthcare services.
We acknowledge the new draft Recommendation and its Explanatory Memorandum (EM), as pioneering documents that take up the objective of preventing the use of coercion in mental healthcare. They have clear reference to human rights standards enshrined in the United Nations Convention on the Rights of Persons with Disabilities (CRPD) and good practices in promoting respect for autonomy in mental healthcare such as the WHO QualityRights Initiative.
In several instances we welcome the strengthening of rights-based language, from ensuring that a person’s ‘wishes’ are respected to guaranteeing services and treatment according to their ‘will and preferences’. Unfortunately, there were several other instances in which our suggestions for stronger language or provisions were ignored and where existing text was softened, narrowed or removed all together.
As we have repeated throughout the process, the Recommendation is necessary to reform European mental health systems in line with the obligations undertaken by now all Member States of the Council of Europe under the CRPD.
To further refine the document prior to adoption, avoid legal complications at the international level with the CRPD, and protect the rights of persons with disabilities and those experiencing mental health problems,
- Remove the reference to the principles of Rec(2004)10 concerning the protection of the human rights and dignity of persons with mental disorder, since the latter reinforces coercion in mental healthcare settings and is outdated;
- Remove all mention of the draft additional protocol to the Oviedo Convention, which has not been adopted by the Council of Europe
- While acknowledging the need to eliminate involuntary measures, remove all mention of involuntary measures as a last resort or exception to the general rule
- Include clear reference to the right to self-determination for persons receiving mental healthcare as well as substantive applications for recovery-oriented services in the EM
- Detail mechanisms on how to ensure the prevention of coercion in mental healthcare
- Broaden the definition of care in the EM to include support and services beyond medical treatment
- Remove references to a person’s capacity to consent, recognising instead the right to equal recognition before the law and necessary supported decision-making models
- Broaden the scope of complaint procedures and availability of resulting data, allowing research on the incidence of coercion and potential improvements of general care, beyond concrete victims (revert to previous article 12(1-3) text)
- Reinstate the article detailing publicly available information (article 20) that could contribute to the improvement of autonomy in mental healthcare
At the same time, we urge your additional consideration of two recent developments, to ensure continuity in the Council of Europe’s efforts to promote autonomy in mental healthcare. The first, is the recent decision of the European Committee of Social Rights on Complaint No. 188/2019, which states that one of the minimal elements of a human rights-compliant approach to mental health should be, among other things, “mental health legislation and strategies that are in line with the Convention on the Rights of Persons with Disabilities.” Therefore, the Recommendation should not depart, or support the departure from the case law of the Committee.
Secondarily, we urge you to consider the most recent Parliamentary Assembly Recommendation 2275 (2024) on “Ending the detention of “socially maladjusted” persons.” Considering the right to liberty as one of the most fundamental human rights, the Assembly recommends that any Council of Europe guidance on promoting autonomy in mental healthcare services should be fully in line with the Convention on the Rights of Persons with Disabilities.
Please find our proposed edits in the annex.
We remain at your disposal for further discussion and support.
Sincerely,
John Patrick Clarke, Vice-President of European Disability Forum
Kristijan Grđan, Vice-President of Mental Health Europe
Olga Kalina, Chair of the European Network of (Ex-)Users and Survivors of Psychiatry
James Crowe, President of European Association of Service providers for Persons with Disabilities