September 4, 2018

Re: Additional Protocol to the Oviedo Convention

Dear Mr. Jagland,

We are writing to express our serious concern about the draft Additional Protocol to the Oviedo Convention concerning “the protection of human rights and dignity of persons with mental disorder with regard to involuntary placement and involuntary treatment,” currently being prepared by the Council of Europe.

We urge you to oppose the further development or adoption of the draft Additional Protocol.

Human Rights Watch is an independent international nongovernmental organization dedicated to defending and promoting human rights in more than 90 countries around the world. We have done extensive research on disability rights issues, particularly the rights of persons with psychosocial disabilities (mental health conditions) in countries around the world, including in Europe.

We strongly believe that the draft Additional Protocol to the Oviedo Convention is not only unnecessary but potentially very harmful to the protection of the rights of persons with psychosocial disabilities, as higher, pre-existing standards for their protection already exist, in particular, in the UN Convention on the Rights of Persons with Disabilities (CRPD), to which 177 states are party, including 46 out of 47 Council of Europe member states.

The CRPD, which has already been in force for a decade (since May 3, 2008), is the most comprehensive instrument protecting the rights of persons with disabilities. It is also one of the most widely ratified UN treaties. It constitutes the authoritative framework on the rights of persons with disabilities, including people with psychosocial disabilities, whom the draft Additional Protocol disturbingly refers to as persons with “mental disorder.”

The draft Additional Protocol to the Oviedo Convention contradicts and undermines the human rights standards set by the CRPD, insofar as it accepts and seeks to regulate involuntary treatment and involuntary placement of people with disabilities.

At the heart of the clash between the draft Additional Protocol and the CRPD are articles 12, 14 and 25 of the CRPD on equal recognition before the law, liberty and security of the person, and the right to health, respectively.

The CRPD provides that involuntary placement and treatment of people with disabilities is a violation of the right to equal recognition before the law and informed consent should be the basis of any healthcare provided to people with disabilities.1 In addition, the CRPD explicitly prohibits deprivation of liberty on the basis of disability. Under article 14, any involuntary placement of a person with “mental disorder” based on that “disorder” constitutes arbitrary and discriminatory deprivation of liberty, as only people with disabilities can be subject to it.  Therefore, while the CRPD prohibits discrimination based on disability, the draft Additional Protocol facilitates it by diminishing protection for the category of persons with psychosocial disabilities. The draft Additional Protocol is proposing standards in direct contradiction to Council of Europe member states’ existing human rights obligations, creating an unnecessary and unhelpful conflict.

We understand the concerns that prompted the Committee of Ministers to call for the development of the draft Additional Protocol, noting the wide variation in practices across the Council of Europe region and number of cases brought before the European Court of Human Rights as a result of involuntary measures. Indeed, involuntary placement and involuntary treatment cause human rights violations in many countries around the world. Human Rights Watch has documented these abuses in many countries.2

The cause of such human rights violations, however, is not a lack of standards or safeguards for the use of involuntary measures.  Involuntary placement and particularly involuntary treatment of people with psychosocial disabilities inherently violate the rights of those subjected to them, including non-discrimination, liberty and security of the person, right to health and may also violate the prohibition on torture and inhuman or degrading treatment. These protections are established in the European Convention on Human Rights (ECHR) and developed in the European Court of Human Rights’ jurisprudence. By creating a framework to facilitate involuntary placement and treatment, the Additional Protocol would sanction serious violations of these rights of people with disabilities.

To address abuses against people with psychosocial disabilities, states should develop alternatives to involuntary placement and treatment based on informed consent, that respect the rights guaranteed under the ECHR, and are in line with their obligations under the CRPD. Such alternatives already exist and can grow through information exchange and the sharing of good practices between member states.

Although the draft Additional Protocol supports promoting the use of alternatives to involuntary placement and involuntary treatment, it is not sufficient for human rights protection to have such measures operating in parallel while involuntary placement and involuntary treatment are allowed to continue in violation of human rights standards.

As we have noted the scope of issues identified in the draft Additional Protocol is already covered by the CRPD. Promotion of consistency of international human rights standards should be a goal with the adoption new human rights instruments, not as with the Additional Protocol, the creation of regressive, conflicting legal standards that provide weaker protections. As 46 Council of Europe member states are already parties to the CRPD, a far more constructive and productive route would be to adopt measures that reinforce positive changes underway to implement the CRPD.

We strongly urge you to oppose the draft Additional Protocol to the Oviedo Convention. By objecting to the draft Additional Protocol, you can be a leader for the rights of people with psychosocial disabilities in Europe and promote the development of alternatives to involuntary measures for people with psychosocial disabilities. We stand ready to collaborate and support you in this effort.

Yours sincerely,

Jane Buchanan                    
Deputy Disability Rights Director
Hugh Williamson
Europe and Central Asia Director

 

(Similar letters were sent by Human Rights Watch to a number of Council of Europe bodies and member states.)