The Convention on Human Rights and Biomedicine (CETS 164, Oviedo Convention) aimed at protecting the dignity and identity of all human beings and guarantee everyone, without discrimination, respect for their integrity and other rights and fundamental freedoms with regard to the application of biology and medicine.
The Oviedo Convention provides in its Article 31 that “Protocols may be concluded … with a view to developing, in specific fields, the principles contained in the Convention.”
At its 40th plenary meeting (21-23 June 2011), the Steering Committee on Bioethics (CDBI) agreed to include the elaboration of a new Additional Protocol concerning the protection of human rights and dignity of persons with mental disorders in the work program for 2013.
Why a new Additional Protocol?
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 a White Paper, the Committee of Ministers adopted Recommendation(2004)10 concerning the protection of human rights and dignity of persons with mental disorder.
The implementation of the provisions of the Recommendation(2004)10 was then examined within the CDBI which found legal gaps in certain Member States in particular concerning legal provisions governing measures for involuntary placement and treatment of persons with mental disorders.
In view of this observation and of the importance of the subject in relation to the protection of human rights, the decision was taken to elaborate a legally binding instrument giving higher legal rank to a number of fundamental principles and setting out indisputable individual rights, which would serve as a reference in particular for the elaboration or the revision of the national legislations concerned.
The elaboration of this new Additional Protocol to the Convention has also been supported by the Steering Committee for Human Rights (CDDH) and the European Committee for the Prevention of Torture (CPT).
Objective of such a Protocol?
The objective of this new Protocol is to develop, for the first time in a legally binding instrument, the provisions of Article 7 of the Convention on Human Rights and Biomedicine, as well as those of Article 5 § 1 (e) of the European Convention on Human Rights. The Protocol aims at setting out the fundamental guarantees with regard to this very exceptional possibility of interference in the rights to freedom and autonomy of persons.
Basis for the work
The reference texts for the elaboration of the Protocol are the Convention on Human Rights and Biomedicine, and the European Convention on Human Rights as interpreted by the decisions and judgements by the European Court of Human Rights. The work is also carried out in the light of the United Nations Convention on the Rights of Persons with Disabilities (see also the Statement adopted by the CDBI), and other relevant legal instruments adopted at the international level.
Furthermore, the work uses as a basis the relevant provisions of Rec(2004)10 of the Committee of Ministers and the standards of the CPT.
Involuntary placement and treatment (as defined in Rec(2004)10)
The notion of “involuntary” placement or treatment refers to a placement or treatment applied to a person:
- who has the capacity to consent to the measure envisaged and refuses it;
- who does not have the capacity to consent to the measure envisaged and objects to it.
Who elaborates the Protocol?
The protocol is elaborated by the intergovernmental Committee on Bioethics (DH-BIO) which has entrusted a drafting group with the task of elaborating a preliminary draft Protocol. For the purposes of the elaboration of this preliminary draft, a hearing of INGOs representing the different sectors concerned (including patients and their families, physicians and other health professionals, associations specialised in the defence of human rights and in the defence of people with mental disorders) was organised on 11 March 2014.
The Committee on Bioethics (DH-BIO) of the Council of Europe is currently elaborating an Additional Protocol to the Convention on Human Rights and Biomedicine concerning the protection of human rights and dignity of persons with mental disorders with regard to involuntary placement and...