13 March 2014

Have your say on involuntary psychiatric treatment in Europe

Psychiatric detention and involuntary treatment in Europe

On Tuesday I was in Paris and attended a hearing of international NGOs organised by a Council of Europe committee which has been appointed to draft a legally-binding “additional protocol” to the Oviedo Convention on Bioethics which will regulate how people with a “mental disorder” can be detained and treated against their will. This raised MDAC’s eyebrows so we went along to find out more.


A bit of background (sorry – lots of laws here!)

The Oviedo Convention is named after the city in which it was finalised in 1997. It has been ratified by 29 out of the 47 Member States of the Council of Europe and purports to regulate human rights in the “application of biology and medicine”. It sets out the principle of consent to medical interventions, but where someone “does not have the capacity to consent” due to a “mental disability, a disease or for similar reasons” then the treatment can be carried out with the authorisation by a “representative or an authority or a person or body provided for by law” (Article 6). In the case of “a person who has a mental disorder of a serious nature” (no definitions are given for these terms) that mental disorder may be treated without the person’s consent if “serious harm is likely to result to his or her health” if such treatment is not given (Article 7).

Oviedo -  where the 1997 Convention was finalisedOviedo - where the 1997 Convention was finalised

In 2004 the Council of Europe adopted a Recommendation more specifically regulating involuntary placement and treatment in psychiatric settings. It had miniscule or no input from those on the receiving end of psychiatric care, or the human rights community. From talking with many people in different countries, I know that hardly anyone working in mental health has even heard of the Recommendation, let alone read it. I haven’t seen any evidence that any country has taken it into consideration when revising their mental health laws.

The 2004 Recommendation it is firmly embedded in Oviedo principles: consent is lauded as paramount but – and you can guess the punch-line by now! – if a person has a “mental disorder” then the principle of consent doesn’t apply. Both the Oviedo Convention and the 2004 Recommendation are great examples of discriminatory laws which the UN Convention on the Rights of Persons with Disabilities demands we rethink.


International law geek alert!

A Recommendation of the Council of Europe is adopted by the Committee of Ministers – they are the governments of Europe. After adoption, a country doesn’t need to do anything: a Recommendation cannot be signed or ratified. Governments need not follow the advice in the Recommendation. Indeed, many governments excel in not following the often sensible advice contained in Recommendations.

An “additional protocol” to a “convention” has a different status from a Recommendation. Sometimes the international community wants to add a few words to a legally-binding Convention. They call these additional protocols, or optional protocols, or sometimes simply protocols. So, an Additional Protocol to the Oviedo Convention would have the status of the Oviedo Convention itself. The route to adoption is more complex than a Recommendation: importantly there is a lot more scrutiny by the Parliamentary Assembly of the Council of Europe. The Committee of Ministers can adopt a convention, but to breathe life into it, a country needs to sign and ratify the convention. Usually conventions say that its provisions do not enter into force until a specified number of countries ratifies it. Until then, generally speaking, a convention has no force whatsoever in a country unless that country ratifies it.


At MDAC, we were curious to see why the Council of Europe intends to elevate this recommendation to convention status. No papers were provided beforehand or at the meeting. The drafting group began in June 2013 but there is no draft text yet. All we received was this document some weeks ago, which contains a list of questions. We sent this response. Other NGOs sent their responses and the committee has promised to circulate these.

The secretariat told the meeting that the new additional protocol will use the term “mental disorders” because Oviedo does. In our view it is unacceptable that a human rights organisation would in 2014 choose to use a term from medicine and biology rather than wording which is now well-established within the international disability community, of which mental health is part.

I raised four points. Sorry that each of them is rather long, but time is short (ten days to get your comments in so I want to give as full an explanation as possible).


1. What is the evidence-based need that this additional protocol seeks to address?

The answer to this was that several people at the Council of Europe (the CPT and CDDH in particular) think it is important to have a legally-binding measure, because the 2004 Recommendation is not legally binding. The new additional protocol will, apparently, provide a stronger reference to what are considered to be human rights standards.

In my view, this is rather flimsy ground from which to embark on a new legal instrument. Negotiating this additional protocol diverts attention away from implementing existing standards and monitoring how these standards are being implemented. No information was forthcoming about why the 2004 Recommendation is being upgraded to convention status in the absence of evidence about how the Recommendation is implemented. If the new additional protocol sets out the gold standard of involuntary treatment (itself an oxymoron, perhaps) it will have resource implications making it unappealing for States to ratify it, rendering the whole exercise useless.

If the additional protocol sets out a basic standard to which all States can agree, it will no more than repeat the 2004 Recommendation which States should be following anyway, so what is the point unless there is some evidence that there will be ratifications and greater compliance? I doubt that there will be either. It is a basic principle of public policy that without a strong evidence-base it is potentially dangerous to embark on law reform.


2. Why are no users and survivors of psychiatry on board, and why aren’t NGOs’ costs covered?

The committee members are:

-         Ms Sandrine Bourdin, Magistrate, Ministère de la Justice, Direction des Affaires Civiles et du Sceau (France) – Magistrate

-         Mrs Beatrice Gabriela Ioan (Chair), Member of the Bioethics Committee of the Romanian Ministry of Health and President of the Bioethics Commission of the Romanian College of Physicians (Romania) – Associate professor at the University of Medicine and Pharmacy „Gr.T.Popa” of Iasi, Romania, and forensic pathologist at the Institute of Legal Medicine of Iasi, Romania.

-         Prof. Andrés Magnússon, Landspítali University Hospital, expert designated by CPT (Iceland) – Professor / Doctor of Medicine

-         Mrs Svetlana Polubinskaya, Lawyer, Institute of State and Law, Russian Academy of Sciences (Russian Federation) – Academic Lawyer

-         Prof. Hanns Rüdiger Röttgers, Faculty of Social Studies, Münster University of Applied Sciences (Germany)

-         Mr Frank Schürmann, Département fédéral de justice et police, expert designated by CDDH (Switzerland) – Representative of the Swiss confederation for the ECHR

-         Mrs Sylvia Tomova, Chief Legal Advisor, Medical University-Medical Library (Bulgaria) - Lawyer


None of these people have a profile which includes international human rights law or comparative mental health law: such experts do exist so where are they? It was cheeky of me to ask them directly in the meeting on Tuesday whether any of the members have experience of receiving mental health services. No-one put their hand up (I am not sure I would put my hand up in those circumstances either, if I were a professional and a mental health service user, but still, you get the point).

No survivors/users of psychiatry are on the drafting committeeNo survivors/users of psychiatry are on the drafting committee

A point I made at the meeting is that in 2014 it is unacceptable for a group of people drafting an instrument which regulates the removal of human rights of a particular target group without having anyone of the target group on the committee. Participation sits at the core of disability politics. It’s also a human right. The majority of Council of Europe states have ratified the UN Convention on the Rights of Persons with Disabilities (CRPD). Article 4(3) states that in any decision-making process about their rights, states need to ensure that people with disabilities are given the opportunity to be “actively involved”. In my view, this means having seats round the table. Anything less than this risks the process being ridiculed by civil society, and being rejected by the Parliamentary Assembly out of hand. Parliamentarians, especially from opposition MPs, understand the importance of public participation. International civil servants should also understand the importance of participation if they want their products to be known by the public, supported and used, unlike the 2004 Recommendation.

Paying lip service to participation undermines the whole process.

I recommended at the meeting that the Council urgently seeks at least three people who hold a range of views and expertise who are themselves users or survivors of psychiatry. They should do this by approaching established NGOs. Any number less than three on a committee which already has seven professionals will reek of tokenism. I have already written to the Secretary General of the Council of Europe making this point.

In the hearing on Tuesday, the committee justified its current setup by saying that there are “difficulties” in changing the modus operandi. Members reiterated that anyone can be involved: they can send in comments, and they can come to meetings like the one on Tuesday. I pointed out that this is untrue for two reasons. First, only international NGOs who enjoy “participatory status” with the Council were invited. Who is on the list is rather random: MDAC is on, the European Network of Users, Ex-Users and Survivors of Psychiatry is not, but they are the umbrella organisation of users across the continent: MDAC does not hold this position. Further, expertise often lies within national-level NGOs, not only international NGOs. Only one national NGO with service user representation attended and that was Advocacy France because the meeting happened to be in Paris. Three people took time out of their lives to provide input to the committee and not even their metro fare was covered.

And this is the second point. The all-day meeting was held in Paris, and the Council did not pay a cent to any NGOs to cover costs of their travel, accommodation or food. In contrast, each person on the drafting group received the Council’s per diem which is currently 175 Euros per day for France (this covers accommodation and food: travel is paid separately). Several of the NGO representatives who attended chose, for cost reasons, not to join the main group for the 25 Euro lunch. If the Council of Europe finds consultation politically important, it would find the money. MDAC is out of pocket of roughly 350 Euros (an EasyJet flight, 2 nights in a 3-star hotel, a croissant or two), but at least we have a meagre pot of money we can spend on advocacy. Most NGOs do not.

Paris may be beautiful, but NGO participants received ZERO financial support to attend the meetingParis may be beautiful, but NGO participants received ZERO financial support to attend the meeting

3. Why accept the status quo in Recommendation R(2004)10?

There was little evidence that the drafting group has yet properly engaged with developments in either international human rights law or comparative mental health law. The chair of the drafting group said that the Additional Protocol will comply with the UN Convention on the Rights of Persons with Disabilities as the regulation will not discriminate against people deprived of legal capacity: the safeguards will apply to everyone equally. NGOs at Tuesday's hearing pointed out that this misses the point about legal capacity and the questionable legality in the post-CRPD era of attempts to remove human rights based on a person’s alleged disability or incapacity. The UN Committee on the Rights of Persons with Disabilities has pointed this out several times, as set out in this document, which MDAC handed out on Tuesday. If the drafting committee members don’t agree with the CRPD Committee, that’s fine, but one cannot proceed by ignoring what already exists in international law!

So what exactly is wrong with the 2004 Recommendation? Well, article 17 of the text says that a person can be detained in a psychiatric setting and forcibly treated for their mental health condition if the following five criteria are made out:

“i. the person has a mental disorder;
ii. the person's condition represents a significant risk of serious harm to his or her health or to other persons; 
iii. the placement includes a therapeutic purpose; 
iv. no less restrictive means of providing appropriate care are available;
v. the opinion of the person concerned has been taken into consideration.”

I probably hogged the microphone a bit too much during Tuesday’s meeting (we lawyers love the sound of our own voices), but in one of my interventions I pointed out how these criteria allow for all sorts of people to be subjected to forced detention and confinement – much of which has now been documented to be in serious violation of human rights. Specifically:

i. the person has a mental disorder;
International classifications of “mental disorders” are famously loose. It is easy to get a diagnosis of such a disorder. Anyway, why should the existence of a mental disorder be a criterion in a list justifying suspending a person’s right to liberty and physical and mental integrity?

ii. the person's condition represents a significant risk of serious harm to his or her health or to other persons; 
There are no international standards about what the words “significant” or “serious” mean, nor what the words “risk” or “harm to health” or “harm to other persons” mean. This provision is the catch all – it is easy for a doctor to say “If this person does not take this medication there will be a significant risk of serious harm to her mental health”.

iii. the placement includes a therapeutic purpose; 
This is a legally irrelevant criterion. Of course anything a doctor orders to happen can be justified by that doctor to “include” among the purposes something which can be described as “therapeutic”.

iv. no less restrictive means of providing appropriate care are available;
In many countries this criterion is meaningless, because the less restrictive care is at the same time the most restrictive. Without community based mental health services being developed, psychiatric inpatient facilities are the only means where families can dispose of their mentally ill relatives. Zero support is otherwise available.

v. the opinion of the person concerned has been taken into consideration.

To take something into consideration is a very easy to do. I take into consideration the views on global warming when I buy a plane ticket but I still buy the plane ticket because my overriding objective is to get from A to B. If the law allows a psychiatrist to lock someone up and inject them with medications against their will, it’s quite an easy thing to consider their views (often the view of someone who is terrified of being detained and knocked out with an injection is expressed rather loudly).

The drafting committee should review these criteria in the light of new norms set out in the CRPD, and in light of empirical evidence as to how these criteria are playing out across the Council of Europe region.

The criteria do not comply with CRPD normsThe criteria do not comply with CRPD norms

4. Why assume “safeguards” work?

Safeguard. What a handsome word, imbued with robust mechanisms of accountability, protecting, and preventing nasty things from occurring. In mental health law, what exactly are we safeguarding against? If the decision to detain and medicate has already been taken the damage may already have been done, and here I’m specifically talking about state-endorsed exploitation, violence and abuse. The 2004 Recommendation sets out various “safeguards”: providing information, allowing a visitor, allowing for correspondence, reviews and appeals, monitoring of restraints and seclusion and so on.

I suggested that the committee should look at what is actually happening under each of these headings to assess the efficacy of each safeguard. Where research has been done, there is evidence that court hearings to review detention/treatment are a joke, with lawyers not properly advocating for people, and judges simply rubber-stamping psychiatric decisions: check out our Liberty Denied report.

Today there are hundreds of thousands of people languishing in psychiatric hospitals having been coerced into agreeing to be a “voluntary” patient, because the health professionals see the meagre safeguards as being a bureaucratic hassle. So, the evidence suggests that whatever safeguards exist, they are simply not applied to a large amount of people who are supposed to qualify for them. Judges are not trained to be knowledgeable about mental health and disability as such and the relevant international and domestic laws, the skills on how to include a person with mental health issues in the court process, and the attitude to – at the minimum – give a damn about people’s rights.

Similarly, in many countries there are no lawyers to represent a patient. To meet basic rule of law principles, in a proceeding where someone’s liberty is at stake there needs to be a lawyer who does a decent job. The lawyer must be paid for by the state not just to represent the person, but to meet them well beforehand, take instructions, scour the medical files for information and prepare the case. Court hearings need to be made open so that researchers can assess if and how justice is being done.

There are also questions to be asked about the timing of a court hearing: two or three days after admission (the case in many central and eastern European jurisdictions) may well be too short for the lawyer to take instructions and assemble and challenge evidence. Too long (eight weeks in the UK!) and you risk the patient not being able to give instructions, the medication having kicked in. Sometimes the reverse is true, that a person is better able to instruct a lawyer. The committee needs to take time to review the literature on this issue, call in experts, examine the pros and cons – and this is all assuming (which is my own assumption based on what was said on Tuesday) that the committee is simply going to reject the CRPD Committee’s jurisprudence on abolishing forced treatment on the basis of disability or mental health.

I had a back and forth with a committee member about the wide variance in human rights protection in mental health settings across Europe. The committee member said that there are indeed some mal-practising doctors, but all medics need to comply with “generally accepted standards”. I think even he was surprised to hear that there are no generally accepted standards of clinical care in psychiatry, and sub-standard treatments amounting to torture are nothing to do with maverick mal-practising medics, but widely-accepted practice allowed by the law, which I have seen with my own eyes in multiple jurisdictions. Sure, there are diagnostic manuals, but no clinical treatment standards. As a result, a person with exactly the same diagnosis can be treated caringly and with dignity in country A, while being pinned down on admission and knocked out by a Haloperidol shot in his butt in country B.

So if safeguards don’t work and there are no clinical standards, shouldn’t we look very carefully indeed at the substantive criteria – which is my previous point. Don’t groups calling for an abandonment of coercion have something to say here? Isn’t the really interesting discussion about how this would look like in practice, what supports need to be put in place to prevent hospitalisation, what the obligations are on the local government to provide services, how this can be rolled out over time, and how psychiatry, nursing and social work need to pivot towards supporting people in the community?

I also made the point that in times of austerity, community mental health services are being cut, so that inpatient psychiatry becomes the dustbin of society: people who cannot cope or fit into the community are simply thrown into abandonment. Is it the most strategic deployment of Council of Europe resources to focus on acute psychiatry? Instead, why not look into the existence and effectiveness of community settings? A starting point is Article 19 CRPD and Thomas Hammarberg’s issue paper on the right to live in the community. There’s also the issue of community treatment orders, where people are compelled to receive psychiatric medications in their homes, at risk of detention and forced treatment in a hospital. The Council of Europe has so far been silent on this practice. 


Make your comments known now!

You may not be convinced of the need to develop a new legally-binding instrument for regulating the rights of hundreds of millions of people in Europe in the most vulnerable situations. Despite what civil society thinks, the preliminary draft of the text is to be sent to a more senior committee (DH-BIO) in time for its 5-7 May 2014 meeting. The whole text is scheduled to be finalised by the end of 2015.

If you care about why or how this is being done, or care about the human rights at stake, please make your voice known. The secretariat is Ms Laurance Lwoff, and her email is Laurence.LWOFF@coe.int. Please let MDAC know about your comments: mdac@mdac.org. If you’re on twitter, you can tweet your remarks to the Council of Europe: @COE, and please include the handle @mdacintl so that we can support your efforts.